ESBD_441624_1753910242067_RFO 582-26-10317-Final.pdf

Approvals for final version of document. Upload into CAPPS as attachment once completed. Oct. 2023, ver. 1

Document Name:

Worldwide

Contract #:

582-26-10317

Document Approval/Sign-off Form for Program Area, Legal, & P&C

Name Role/Section/Division/Office Signature Signature Date

Stephen Cruz Planner IV (Work Leader)/Air Quality Planning/AQD/OA

Eliza McDonald Staff Attorney/Contracts/GLD/OLS

Yen Tran Senior Attorney/Contracts, Employment Law & Ethics/GLD/OLS

Trenton Davis Purchaser V/ Procurements and Contracts/FAD/OAS

07-30-2025

07-30-2025

7/30/25

7/30/25

Approvals for final version of document. Upload into CAPPS as attachment once completed. Oct. 2023, ver. 1

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Cover Page

Date: [07/30/2025]

Type of Solicitation: Request for Offer

Name of Solicitation: Worldwide Analyzer Software Contract

Solicitation Number: 582-26-10317

Class 920, Item 46

Responses Due

August 13, 2025, at 2:00 PM Central Time

Deadline for Submission of Questions

August 06, 2025, at 2:00 PM Central Time

Anticipated TCEQ reply to Vendor Questions (This date is only an estimate):

August 08, 2025, at 2:00 PM Central Time

Description:

Software updating and upgrading services for software currently being used in the Vehicle Information Database (VID).

Historically Underutilized Business (HUB) Subcontracting Plan Note:

Subcontracting opportunities have been identified. See information regarding the HUB program and completing the HUB Subcontract Plan in the Responder General Instructions and in the HUB Subcontracting Plan form in Section 4 of this Solicitation.

PURCHASING AUTHORITY:

• Purchase of Automated Information System (RFO) Gov’t Code Chapter

• The issuing office believes that the requested items in this request for offers may be proprietary to one vendor under Section 2155.067 of the Government Code; however, the issuing office strongly encourages offers from all qualified respondents that may be able to provide the requested items

Solicitation Table of Contents

SECTION 1: General Information

• Cover Page

• Solicitation Table of Contents

• TCEQ Points of Contact for This Solicitation

• Response Submission Procedure

• Responder General Instructions

• Responder Special Instructions

SECTION 2: Scope of Work and Evaluation Criteria

• Scope of Work

• Evaluation Criteria

SECTION 3: Draft Contract Documents

• Contract Signature Page

• General Terms and Conditions

• Insurance Section

• Notices, Project Representatives, and Records Location

• Attachment A: Release of Claims

SECTION 4: Response Documents – To be submitted with Response, unless otherwise noted below

• Responder’s Signature and Information

• Signed Cover Pages of Addenda (if any)

• Response Contents (not submitted as part of Response)

• Certifications (not submitted as part of Response)

• Price Form

• Preferences

• HUB Subcontracting Plan Forms

TCEQ Points of Contact for This Solicitation

TCEQ Procurements and Contracts Representative

Primary Contact

Name: Trenton Davis Telephone: 512-239-0356 Email: trenton.davis@tceq.texas.gov

Secondary Contact

Name: Mark Guerrero Telephone: 512-239-0689 Email: mark.guerrero@tceq.texas.gov

Please allow one business day before contacting the secondary contact.

Exception: If there is less than 24 hours before a solicitation deadline, you may contact the secondary contact after attempting to contact the primary contact.

Except for contacting the HUB Coordinator, all communication regarding this solicitation must be directed to the TCEQ Procurements and Contracts Representative. If this requirement is not met, then the Response may be disqualified.

Email for Vendor Questions: trenton.davis@tceq.texas.gov

TCEQ Historically Underutilized Business (HUB)

HUB Coordinator Name: Claribel Diaz

Email: Claribel.Diaz@tceq.texas.gov

Assistant HUB Coordinator Name: Maria Rodriguez Email:

Maria.Rodriguez@tceq.texas.gov mailto:Claribel.Diaz@tceq.texas.gov mailto:Maria.Rodriguez@tceq.texas.gov

Updated June 24, 2025.

Response Submission Procedure via TCEQ’s File Transfer Protocol Secure (FTPS) Server

The Response (proposal) must be signed, and the Responder must submit the Response to TCEQ as one Adobe portable document format (PDF) searchable file.

[Note: In this Solicitation, TCEQ also may request submission of additional documents, such as, the Price Form as an Excel file.] Responses to the Solicitation may only be submitted to TCEQ’s FTPS server. The email address is listed below.

Responder must:

a. Upload the file(s) to TCEQ’s FTPS site,

b. Select the file(s) and click the “Share” button. Note: Press the Share button to share files, not the Share- or the Share√ buttons.

c. Enter esbd-response@tceq.texas.gov as the email address. Click "Add" and then "OK". Click OK again to confirm the file share.

d. A “Notify Recipients” message will appear. Add the Solicitation Number, Solicitation Name, and the Due Date for Responses before the text in the box that says, “One or more files have been shared…” and send the message.

For quick instructions for using TCEQ’s FTPS Server, please visit:

FTPS User’s Quick Guide for Solicitations (https://www.tceq.texas.gov/agency/financial/contracts/index)

For detailed directions for using TCEQ’s FTPS Server, please visit:

TCEQ FTPS Help Page.

Please note: Responses uploaded to TCEQ’s FTPS server without completing the share file(s) steps will not be considered as submitted.

https://www.tceq.texas.gov/agency/financial/contracts/index https://www.tceq.texas.gov/agency/financial/contracts/index https://ftps.tceq.texas.gov/help/

Responder General Instructions

The terms response and proposal are used interchangeably to mean the submission by the Responder to this Solicitation.

Pre-Proposal Conference

NONE.

Questions Regarding the Solicitation

Deliver questions in writing no later than the Deadline for Submission of Questions listed on the Cover Page. Questions must be submitted to the following email address: Trenton.davis@tceq.texas.gov.

Please include the following information in the subject line of the email: Solicitation Number, Solicitation Name, and the Due Date for Responses.

TCEQ will provide answers to questions in one or more addenda posted on the ESBD. TCEQ may, at its sole discretion, extend the Due Date for Responses to provide Responders additional time to make revisions.

Addenda

Any changes to the Solicitation, deadline/due dates, and all responses to questions will be posted as addenda on the ESBD. All addenda are part of the Solicitation. No other explanations, interpretations, or changes will be considered official or binding. It is Responder’s responsibility to review all addenda.

Changes to the Terms and Conditions

Exceptions that are not advantageous to TCEQ may result in the deduction of points in the evaluation or disqualification of the Response. Requested changes to the terms and conditions must be labeled and included behind Tab 4.

Cost of Preparing the Response

The Responder is responsible for all costs incurred in the preparation and submission of a Response.

Quantity and Nature of the Work

Responders are required to inform themselves of all conditions which may affect the performance or the prices. By submitting a Response, Responder expressly waives any claims that there was a misunderstanding concerning the quantities or the nature of the Work.

Historically Underutilized Business (HUB) Subcontracting Plan (HSP)

This Solicitation requires a HUB Subcontracting Plan for any contracted staffing, services, materials, supplies, or any other portions of work. Failure to comply with the HUB requirements and submit a complete HSP will result in rejection of the Response.

The HUB Subcontracting Plan (HSP) forms and additional information about the HUB program are found at the Texas Comptroller’s website:

(https://www.comptroller.texas.gov/purchasing/vendor/hub/forms.php).

Responders are encouraged to seek assistance in completing the HSP from the TCEQ HUB Coordinator, listed under the TCEQ Points of Contact for this Solicitation. You may also request an HSP courtesy review from the TCEQ HUB Program Coordinator.

Requests for HSP courtesy reviews must be made well in advance of the Response due date. HUB assistance may depend upon the staff availability and resources.

Responders understand that if awarded a Contract, the HSP becomes part of the Contract terms, and any changes to the HSP must first be reviewed and approved by TCEQ to ensure the good faith effort requirements found in 34 Texas Administrative Code §20.285 were followed. This includes subcontracting for any contracted staffing, services, materials, and/or supplies with a subcontractor not listed on the approved HSP.

Preparation of Responses

Responses become TCEQ records and cannot be returned, except for Responses withdrawn by the Responder prior to the due date and time for Responses.

Responses must be in the format of one (1) electronic searchable PDF document of the entire Response and shall not be password protected. In order for the Response to be deemed responsive, the electronic version must contain the entire Response.

Additionally, the electronic version must contain a signed Responder’s Signature and Information page. If these requirements are not met, then the Response may be disqualified.

Prepare the Response as follows:

• Include all information listed on the Response Contents page.

• Obtain any missing applicable forms from TCEQ with sufficient time to complete and submit them in the Response.

• Complete the applicable, required forms in this Solicitation.

• Create any other applicable documents.

• Insert all applicable documents behind cover pages for the specified tabbed sections. If there is no information to include behind a tab, include a page behind the cover page for the tab stating “Not Applicable”.

• All pages of the Response shall be submitted to allow for printing on standard 8.5-inch X 11-inch paper. Any maps may be submitted to allow for printing on 11-inch X 17-inch paper. Standard font size for the Response shall be 10 to 12 https://www.comptroller.texas.gov/purchasing/vendor/hub/forms.php point. Charts and maps may use smaller font size, but not less than 8 point.

Language shall be American English.

• If page limits are specified, any information provided by the Responder in excess of the allowable page limits will not be evaluated.

• Each page of the Response shall be labeled with the Responder’s name and the Solicitation number.

• Sign all documents that require a signature, including the Response on the Responder’s Signature and Information page. Create a PDF of each signed document and place behind the required tab. Responses not containing a PDF of a signed Responder’s Signature and Information Page may not be considered.

• Create a PDF of the entire Response for email submission to the TCEQ.

Submission of Responses

• Submit the Response by the due date and time on the Cover Page using FTPS, as specified under Submission Procedures section. TCEQ will not consider Responses submitted via any other method.

• If the Response lacks required information or does not follow these instructions, the Response may be considered non-responsive and disqualified. TCEQ is not responsible for documents that cannot be read. Unreadable Responses may be, at TCEQ’s discretion, rejected as non-compliant.

• Responses cannot be altered, amended, or withdrawn after the Due Date and Time. To withdraw a Response prior to the Due Date and Time, the Responder must submit the request to: Procurements&Contracts@tceq.texas.gov.

Due Date/Late Responses

It is Responder’s responsibility to ensure timely delivery of the Response to TCEQ by the date and time on the Cover Page of this Solicitation. Except under extreme circumstances beyond the control of the Responder, late Responses will not be considered. TCEQ will not be responsible for the failure of email services.

TCEQ’s Acceptance of Responses

TCEQ may reject Responses that do not comply with requirements in the Solicitation and state and federal laws. TCEQ may accept or reject all or any part of any Response, waive procedures for submitting Responses, waive formalities and/or minor technicalities, and award by item or groups of items, whichever best serves the interests of TCEQ. TCEQ may also cancel this procurement and withdraw this Solicitation at any time before a contract is signed by TCEQ. TCEQ shall have sole discretion of what is in the best interests of TCEQ.

Evaluation

The pricing and all terms and conditions of Responses are fixed for 120 days from receipt by TCEQ. Best and Final Offers (BAFOs), if requested by TCEQ, are fixed for 60 days. To determine the most advantageous Response, in addition to price, TCEQ may consider other relevant criteria, which are described more fully in Section 2, Evaluation Criteria. TCEQ may use information regarding the Responder’s performance on past TCEQ contracts in the evaluation of qualifications. In addition, TCEQ will use the information contained in the Texas Comptroller of Public Account’s vendor performance tracking system in the evaluation of qualifications.

Selection

Depending on the applicable procurement method and solicitation type, in order to secure the best value for the State, TCEQ may take one or more of the following actions in the selection process:

• Accept the highest scoring Response without changes.

• Request clarifications, assurances, and corrections.

• Modify the selection criteria and apply it to BAFOs, provided that the modifications do not materially affect initial applicant eligibility or invitation to submit a BAFO. Conduct discussions on Responses scoring within a competitive range and request Best and Final Offers (BAFOs).

• Select the highest scoring BAFO and accept it without changes or negotiate acceptable terms.

• Award one or more contracts based on the amount of work that TCEQ foresees needing performed.

• Award contracts to other contractors at a later date under this Solicitation or through another appropriate method, including another solicitation.

• In the case of a tie that cannot be resolved by application of one or more statutory preferences, make a selection, in the best interest of the State, by drawing lots, tossing a coin, or drawing names with two witnesses to oversee the tiebreaking activity.

Certification of Interested Parties

Section 2252.908 of the Texas Government Code states that a state agency may not enter into certain contracts with a business entity unless the business entity submits a disclosure of interested parties (Form 1295) to the state agency at the time the business entity submits the signed contract to the state agency. The contract is voidable if the business entity fails to provide the disclosure of interested parties as required by statute.

Form 1295 must be filed electronically through the Texas Ethics Commission at https://www.ethics.state.tx.us/filinginfo/1295/. The site includes a list of Frequently Asked Questions.

The selected vendor(s) for a contract that meet the requirements to provide a Certification of Interested Parties will be given instructions at the time of award on how to submit the certification form.

https://www.ethics.state.tx.us/filinginfo/1295/ https://www.ethics.state.tx.us/filinginfo/1295/ https://www.ethics.state.tx.us/resources/FAQs/FAQ_Form1295.php

Protest Procedures

An actual or prospective Responder or Contractor who is aggrieved in connection with the Solicitation, evaluation, or award of a contract by TCEQ may formally protest to the TCEQ Manager of Procurements and Contracts. TCEQ Protest Procedures can be found at 30 Texas Administrative Code Part 1, Chapter 11, Subchapter B, § 11.2.

Public Information

The Response is a public record. By signing and submitting a Response, Responder hereby acknowledges:

• That the Response and subsequent documents submitted to TCEQ are subject to the Texas Public Information Act (PIA);

• That it is Responder’s obligation to specifically identify information it contends to be confidential or proprietary and accepts that TCEQ may in its sole discretions deem a Response as non-compliant; and

• That Responder grants a royalty-free, irrevocable, world-wide, perpetual license to reproduce any copyrighted portions of the Response and subsequent documents to comply with LBB reporting requirements, PIA disclosures, or any other reporting requirements mandated by law or statute.

Conflict of Interest

Responder shall disclose apparent, potential or actual conflicts of interest known with the Response in Tab 4. Responder has a continuing obligation to disclose conflicts of interest during this Solicitation, and if awarded a contract, during the Contract Period. TCEQ may refuse to contract with Responder or terminate any Contract due to an apparent, potential, or actual conflict of interest.

https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=30&pt=1&ch=11&rl=2 https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=30&pt=1&ch=11&rl=2

FTPS User’s Quick Guide for Solicitations How to Create an Account

1. Enter https://ftps.tceq.texas.gov/ut.php into your web browser.

Note: it is important to use the same computer when creating an account and when accessing emails from the FTPS system.

2. Click on the “Sign up a new account” button.

3. Enter a name (company name, for example) and an email address. The two fields are required to be completed. Click the submit button when done.

4. A confirmation box will appear with additional information. Click the OK button.

https://ftps.tceq.texas.gov/ut.php

5. Check for an email from ftp_account@tceq.texas.gov. To set up your password for your account, click on the link in the email. This take you back to the FTPS site.

6. Set your password, then click the “Reset Password” button.

7. A box appears, confirming that your password has been reset. Click “OK”.

mailto:ftp_account@tceq.texas.gov

How to Use FTPS to Upload Documents

8. Enter https://ftps.tceq.texas.gov into your web browser.

9. Enter your Username and Password. Click “Login”.

10. Click on the “Upload Files” button at the bottom of the screen.

https://ftps.tceq.texas.gov/

11. From your computer, find and click on the file or files you want to upload. You can upload multiple files at one time.

12. The upload file(s) will now appear in the list. Place a check in the box beside the file or files to be shared. Once the files are selected, click the “Share” button.

13. In the pop-up “Share Files” box, enter esbd-response@tceq.texas.gov in the email address box and click the “Add” button. Confirm the correct email address was entered, and then click the “OK” button.

mailto:esbd-response@tceq.texas.gov

14. Another confirmation screen appears, displaying the file or files that have been uploaded and the email address. Click the “OK” button.

15. Important: The “Notify Recipients” box appears with pre-filled text. Insert the solicitation number and name in front of the pre-filled text. The text in the red box, below, is an example. Click the “OK” button.

16. A confirmation that the email was sent appears. Click the “OK” button.

17. You will be returned to the Home page. Click the logout” button in the top right corner.

Section 2 Scope of Work and Evaluation Criteria

A. Scope of Work

• Introduction

• Description of Work

• Specifications and Standards for Performance Tracking

• Deliverables

• Payment Schedule

Introduction

This procurement would be used as needed to obtain necessary updates to the software that operates the vehicle emissions inspection analyzers. Vehicle emissions inspections analyzers must comply with the Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emission Testing Program. The software that operates these analyzers could potentially require updating to allow proper implementation of requirements mandated by upcoming legislative sessions, enhance the capabilities of the Vehicle Information Database (VID), and incorporate modifications to improve oversight of the inspection and maintenance (I/M) program.

Description of Work

This work supports the implementation of the AirCheckTexas Vehicle Emissions I/M program. The current versions of software on the analyzers are proprietary and licensed for the sole use of the particular analyzer on which it resides. Modifications can only be performed by the manufacturer who produced the analyzer. Worldwide Environmental Products, Inc. is one of the manufacturers that produces and sells analyzer for use by the I/M program.

Under this procurement, Worldwide agrees to provide any necessary software update services to accommodate current and future I/M program changes, which will be specified, in writing, by a Purchase Order Change Notice (POCN) issued by TCEQ. When future POCNs are issued, Worldwide will be required to make changes to the software as necessary, conduct internal testing to ensure that the software functions properly, submit the software for certification testing, install the software in the analyzer for ‘beta’ testing, and successfully install the software in the fleet of analyzers operating in the Austin-Round Rock, El Paso, Houston-Galveston-Brazoria, and Dallas-Fort Worth areas at no cost to the vehicle emissions inspection stations. The San Antonio area (Bexar County) will begin emissions testing on November 1, 2026, and will be added to the included areas during the term of this agreement.

Any software update projects and associated tasks will be described in a subsequent POCN. This activity will be billed upon completion and acceptance by TCEQ at the rates established under this Purchase Order. Any POCN will generally adhere to the following format.

https://www.tceq.texas.gov/downloads/air-quality/mobile-source/txvehanlspecs.pdf

Specifications and Standards for Performance Tracking

• Certification testing, as set out in - Specifications for Vehicle Exhaust Gas Analyzer

Systems for Use in the Texas Vehicle Emissions Testing Program, and approval from the TCEQ (Must be successfully completed before beta testing is started).

• Beta Testing: Upon successful completion of certification testing and approval from TCEQ, the Contractor must begin beta testing. Beta testing will consist of successfully installing the software in selected analyzers in the inspection program and using the analyzers to send data to the Texas Information Management System (TIMS). The selected analyzers must be approved by TCEQ prior to installation of the software. The TCEQ will coordinate with the Contractor to establish an appropriate installation schedule for the beta period. Data from the analyzers will be evaluated for errors. The data from the analyzers must be error free, with the exception of errors caused by the lane inspectors, before the beta period can be ended. When TCEQ is satisfied with the data received from the analyzers, including data produced by any testing that TCEQ chooses to perform, the beta period will end, and the Contractor will be notified in writing. The Contractor’s beta period will end on the date that is contained in the written notification’s beta period end date.

• Within sixty (60) days of the beta period end date, the Contractor must successfully complete installation of the updated software in 90% of the fleet of analyzers or demonstrate to the satisfaction of TCEQ a good faith effort to successfully install the software in 90% of the fleet of analyzers. Acceptance testing is not complete until this requirement is achieved.

Deliverables

To be delivered to TCEQ’s designated project representative:

Mr. Stephen Cruz (MC-206) Mobile Source Programs Air Quality Division Texas Commission on Environmental Quality PO Box 13087 Austin, TX 78711-3087

1. Software updates, as specified in subsequent contract amendments as necessary.

2. Monthly progress reports throughout the length of the project.

Software Deliverables

The software deliverable must include, but are not limited to, the following list.

1. The analyzer software will be amended to allow vehicle emissions inspections in additional counties, including Bexar County.

2. The analyzer software will be amended to prevent initiation of printing the VIR until after completion of the communication session transmitting the results to the Texas Information Management System (TIMS). The analyzer software will be amended to print a VIR indicating whether the inspection results were successfully transmitted to the TIMS. The TCEQ must be able to turn this feature on and off through the TIMS.

3. The analyzer software will be amended to attempt to contact the TIMS either once or twice during the safety-only inspections. TCEQ must be able to turn this feature on and off and set the number of attempts through the TIMS.

4. The analyzer software will be modified to allow the analyzer to receive and print portable document format (PDF) files from the TIMS that include, at a minimum, vehicle safety recall information and vehicle inspection results.

5. The analyzer software will be amended to print vehicle recall information when it is received during the TIMS communications session that occurs at the end of an inspection (e.g., second call of a safety and emissions inspection, first or second call of a safety-only inspection).

Tasks listed in this scope of work will be performed according to the updated specifications contained in a pdf file to be delivered after the completion of the purchase order.

Payment Schedule

Payment will be made as one (1) lump sum payable at the time of successful completion of acceptance testing of the software update.

B. Evaluation Criteria

Responses and Best and Final Offers, if requested, will be scored based on factors constituting the best value and best interest of the state based on lowest price meeting the Scope of Work:

1. Statement of Qualifications (Pass/Fail) TCEQ may consider information regarding the Responder’s past performance for TCEQ, other governmental entities and businesses.

2. Provide an overview description of the Company’s resources you deem necessary to fulfill the requirements of the Scope of Work.

Price Form

Propose your fully-loaded, firm, fixed prices or hourly rates. Prices shall include all costs of performance, including materials, equipment, labor, communication, and planning to successfully complete all services. All prices shall be considered as fully-loaded rates, that is, the rates include an accounting of all expenses. No other prices may be charged to TCEQ or paid by TCEQ. TCEQ may authorize reimbursement of specifically described necessary costs for items not on the Price Form if the authorization is made in writing prior to the Contractor incurring the cost.

Section 3

Special Terms and Conditions

These Special Terms and Conditions add to, or in the case of conflicts, supersede and take precedence over the General Terms and Conditions.

1. General Term and Condition 4.2 Renewals and Extensions in Article 4 Term and Amount of

Purchase Order is replaced with the following:

4.2 Renewals and Extensions. The period of service for this Purchase Order is five years from the date of award. This Purchase Order Period may not be renewed. TCEQ, by unilateral Purchase Order Change Notice, may extend the Purchase Order for 180 days beyond any expiration of the Purchase Order Period. In a Purchase Order Change Notice or extension, TCEQ may increase the Maximum TCEQ Obligation by an amount up to the original Maximum TCEQ Obligation.

2. General Term and Condition 20.6 is added as follows:

20.6 Early Termination by the Contractor. In the event of early termination of the Contract or removal of analyzer equipment from the I/M program by the Contractor, Contractor shall provide the TCEQ with at least 180 days written notice prior to termination. Early termination by Contractor may result in calling of the Performance Bond, in addition to the “Events of Default” identified in the Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program.

3. General Term and Condition 23.22 is added as follows:

23.22. Performance Bond. The Contractor is required to maintain a Performance Bond for the amount of $1,000,000.00 for the duration of participation in the I/M program, in accordance with Section 1.3.3 Performance Bond, Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program. The Performance Bond must cover all analyzers that are certified to conduct emissions inspections in the I/M program.

General Terms and Conditions

1. Definitions

The following terms shall have the meanings ascribed below when used in this document:

1.1 “Conforming” and “Conformity” and similar words refer to the condition or status of a good, service, property or the Work as meeting and being compliant with the requirements of the Contract.

1.2 “Fiscal Year” means the period of time that begins on September 1 and ends on August 31. The fiscal year is designated by the calendar year in which it ends; for example, Fiscal Year (FY) 2016 begins on September 1, 2015 and ends on August 31, 2016.

1.3 Whenever used in this contract, “include,” and similar words are intended to mean include but not limited to; they are not intended to be exhaustive.

1.4 “Nonconforming” or “Nonconformity” means a failure of a good, service, property or the Work to conform to this Contract, and includes a defect in a good, service, property or the Work.

1.5 “Work” means the services, goods and property the Contractor is required to provide in this Contract. The term includes the entire completed undertaking and the various separately identifiable parts. The term also includes all duties of the Contractor.

2. Order of Precedence

a) Contract Signature Page

b) Federal Conditions and Forms

c) Special Terms and Conditions

d) Procedures for Work Orders

e) Scope of Work

f) Price Form (completed)

g) Insurance Section

h) General Terms and Conditions

i) HUB Subcontracting Plan and HUB Progress Assessment Forms

j) Work Orders and Notices to Proceed (incorporated by reference)

k) Work Plans and other Work Order-related documents created during the

Contract (incorporated by reference)

l) TCEQ Solicitation (incorporated by reference)

m) Other documents, exhibits, and attachments listed in the Contract Documents

List.

3. Contract Amendments

3.1 Material Changes. Material changes to the contract require a written amendment signed by both parties. These Amendments take effect when signed by the Contractor and TCEQ, unless otherwise designated in the Amendment. Material changes include the following:

3.1.1 Changes in the total amount of funds in the Budget or the Contract;

3.1.2 Changes to the Contract’s Expiration Date;

3.1.3 Changes to the Scope of Work that affect TCEQ’s obligations to the entity providing funding, such as the United States Environmental Protection Agency (EPA), another state or federal agency, or the Texas Legislature; and

3.1.4 Changes that affect the material obligations of the Performing Party in this Contract.

3.2 Unilateral Amendments. As specifically allowed by the Contract, TCEQ may issue unilateral amendments. Unilateral amendments take effect when issued by TCEQ.

3.3 Minor Changes. The TCEQ Contract Manager and/or the TCEQ Project Manager has the authority, without a formal Amendment, to correct typographical errors; make written Contract interpretations; and make minor, non-material changes to the requirements in the Scope of Work, the Procedures for Work Orders, or the Work Orders; or as agreed to elsewhere in the Contract. Contractor must provide TCEQ with a written objection to any Notice of Interpretation no later then five (5) business days from the effective date of the Notice. A copy of the agreed change must be retained in the appropriate file y both the Performing Party and TCEQ.

3.3.1 Minor, non-material changes include:

3.3.1.1 Changes to the schedule in the Scope of Work including an extension of a deliverable due date, not to exceed the expiration date of the Contract;

3.3.1.2 Changes to the schedule in the Work Order including an extension of a deliverable due date, not to exceed the expiration date of the Work Order;

3.3.1.3 Changes to the individual tasks in the Scope of Work or Work Order, if applicable, that do not substantially change the obligations of the Parties relative to those tasks.

3.4 It is the Performing Party’s responsibility to request extensions to the deliverable schedule and other changes that are within the authority of TCEQ.

4. Term and Amount of Contract

4.1 Contract Period. The contract Period begins on the later of: 1) the Effective Date on the Contract signature page, or 2) the latest date of the partie’s signatures shown on the Contract signature page. The Contract Period ends on the Expiration Date on the signature page.

4.2 Renewals and Extensions. This Contract may be renewed up to three one-year periods by amendment. TCEQ, by unilateral amendment, may extend the Contract for 180 days beyond any expiration of the Contract Period. In a renewal or extension, TCEQ may increase the Maximum TCEQ Obligation by an amount up to the original Maximum TCEQ Obligation.

4.3 Maximum TCEQ Obligation. The Maximum TCEQ Obligation is the greatest amount TCEQ may pay for the Work. There is no guaranteed minimum expenditure by TCEQ.

4.4 Service Adjustment/Contingency Requirement (SACR). TCEQ may in its sole discretion make allowances for unforeseen circumstances or contingency requirements. TCEQ may increase the current Maximum TCEQ Obligation by an amount not to exceed 200% of the original Maximum TCEQ Obligation at the time the Contract was signed.

5. Prices and Reimbursement

5.1 Prices. Prices are firm, fixed, and fully-loaded.

5.2 Cost Reimbursement. Reimbursement is limited to direct costs for items specifically identified on the Price Form or in the Scope of Work and approved by the TCEQ Project Manager before the cost is incurred.

Reimbursement requests must be itemized and documented in a format acceptable to TCEQ.

5.3 Records. Contractor must maintain records supporting its costs in accordance with generally accepted accounting principles.

5.4 Reimbursement for Travel. Travel reimbursement is limited to actual costs, and shall not exceed the maximum allowed for State employees by the Texas Comptroller of Public Accounts.

6. Quality and Acceptance

6.1 Quality Standard. All Work must be complete and satisfactory to the TCEQ.

All materials and equipment shall be handled in accordance with instructions of the supplier, except as otherwise provided in the Contract.

6.2 Acceptance. TCEQ relies on Contractor to inspect and test the Work to ensure that it conforms to the Contract requirements. TCEQ relies on the Contractor’s greater expertise in the field of the Work. Any act by TCEQ indicating acceptance, whether express or implied, shall not be deemed to mean that TCEQ has tested or inspected the Work, but rather that TCEQ has accepted the Work in reliance on Contractor’s greater expertise and Contractor’s representation that the Work conforms to all Contract requirements. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of nonconforming Work or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents:

Payment;

Use of the Work or any part of the Work by TCEQ;

Review or approval of a submittal;

Inspection or testing by TCEQ; or Correction of defective Work by TCEQ.

6.3 Quality Assurance. All Work that involves the acquisition of environmental data shall be performed in accordance with a TCEQ-approved Quality Assurance Project Plan (QAPP) meeting all applicable TCEQ and EPA requirements. Environmental data includes any measurements or information that describe (1) environmental processes, location, or conditions; or (2) ecological or health effects and consequences. Environmental data includes information collected directly from measurements, produced from models, and compiled from other sources such as databases or the literature. No data collection or other Work covered by this requirement shall be implemented until Contractor receives the QAPP approved by TCEQ and, if necessary, the

EPA. TCEQ may refuse payment or reimbursement for any environmental data acquisition performed without an approved QAPP.

6.4 Laboratory Accreditation. Any laboratory data or analyses provided under this Contract must be prepared by a laboratory that is accredited in accordance with 30 Texas Administrative Code (TAC) Chapter 25, Subchapters A and B, for the matrices, methods, and parameters of analysis used, unless one of the regulatory exceptions specified in 30 TAC § 25.6 applies.

7. Payments and Invoices

7.1 Excess Obligations Prohibited. TCEQ’s obligations under this Contract are contingent upon the continued availability of funding. If funds become unavailable due to lack of appropriations, legislative or executive budget cuts, amendment of the Appropriations Act, state agency consolidations, or any other disruption of current appropriations, TCEQ may terminate this contract.

7.2 Invoice. Contractor will submit invoices no later than the 15th day of every month after the services are completed. If the Contract has an approved Historically Underutilized Business (HUB) Subcontract Plan (HSP), a HUB Progress Assessment Report (PAR Form) describing subcontracting activity must also be submitted with the invoice. The invoice may be rejected for failure to comply with all invoice requirements.

7.3 Invoice Contents. The Contractor must include the following information on the face of all invoices: invoice number, invoice date, TCEQ Contract number, Work Order number if any, Vendor Identification Number, period covered by the invoice, item and unit description, quantity, unit price, extended price, and total amount for which Contractor is requesting payment. Contractor shall submit its invoice to the TCEQ Contract Manager.

7.4 Progress Payment. A progress payment is a payment made on a portion of the Work that is part of a line item designated on the Price Form. The Contractor’s written request must include a description of the relevant portion of the Work. Contractor may request, and TCEQ at its sole discretion may issue or refuse, a progress payment.

7.5 Final Payment. Contractor must submit its invoice for final payment within 30 days of completion of the Work.

7.6 Retainage. TCEQ may withhold 5% or less of each payment as retainage.

Release of retainage may be requested in the final invoice.

7.7 Release of Claims by Contractor. The final invoice shall be accompanied by a complete and legally effective release of TCEQ from all known and unknown claims relating to the Contract on a form provided by TCEQ.

Contractor’s acceptance of final payment constitutes a waiver of all claims against TCEQ related to the Contract, known or unknown.

7.8 Assignment of Claims. Contractor may assign its right to be paid under this Contract. Any assignment shall cover all unpaid amounts payable under this Contract. An assignment does not relieve Contractor of any obligation under this Contract. All assignments must be approved by both assignor and assignee in writing and submitted to the TCEQ Contract Manager. Notwithstanding any contrary provision in applicable law, TCEQ shall have no liability to Contractor or to any assignee on any claim arising from TCEQ’s directing payment to Contractor instead of an assignee, or to an assignee instead of Contractor.

7.9 Prompt Payment Act. In accordance with the Texas Prompt Payment Act, TCEQ will pay an acceptable invoice within 30 days of receipt.

7.10 Disputed Invoices. TCEQ may dispute an invoice by sending a notice in writing to the Contractor within 21 days of receipt. TCEQ may make a partial payment and dispute the difference on the invoice.

7.11 Liability for Taxes. Contractor will pay all taxes resulting from this Contract including, any federal, state, or local income, sales or excise taxes of Contractor or its employees.

7.12 Lobbying. In accordance with Texas Government Code Chapter 556, funds received under this Contract may not be used toward lobbying expenses of an individual or entity.

7.13 Debts and Delinquencies Affirmation. Contractor agrees that any payments due under the Contract shall be applied towards any debt or delinquency that it owes to the State of Texas.

8. Communications and Notices

8.1 Notices. All notices shall be made in writing and be delivered to a party's designated Contract Manager and Project Manager. Notices are effective upon receipt. If the Contractor has no Contract Manager, TCEQ may send notices to any address previously provided by the Contractor.

8.2 Claim. Contractor shall give notice to TCEQ of any claim, demand, suit, or other action (a “Claim”) asserted against Contractor which either arises in relation to the Contract, or which could have an adverse material effect on Contractor’s ability to perform the Work. Contractor shall give notice directly to the TCEQ Manager of Procurements and Contracts within three days of Contractor’s receipt of notice of the Claim. The notice shall state the date of the Claim, the names and addresses of the claimants, the basis of the Claim, the name of each person or entity against whom the Claim is asserted, and the amount of the Claim.

8.3 Notice of Conflict of Interest. Contractor shall give notice to TCEQ of any actual, apparent, or potential conflict of interest regarding Contractor or any entity or individual performing any portion of the Work. As determined by TCEQ, any entity with an organizational conflict of interest and any individual with a personal conflict of interest must not take part in any way in the performance of any portion of the Work that creates the conflict of interest. TCEQ has sole discretion to decide whether an actual, apparent, or potential conflict exists. Any such conflict is cause for termination.

8.4 Bankruptcy. If Contractor becomes the subject of a voluntary or involuntary bankruptcy proceeding, Contractor shall immediately give notice to TCEQ and send a copy of this notice to TCEQ Bankruptcy Program MC-132, P. O.

Box 13087, Austin, TX 78711-3087. The notice must include the Contract number.

9. Shipment and Delivery of Goods and Material Safety Data Sheets

9.1 Shipping Terms. All shipments shall be made Free on Board (FOB) destination, full freight allowed and not invoiced. Delivery shall be made between the hours of 8 a.m. and 5 p.m. Central Time, Monday through Friday, excluding State holidays, unless prior approval for another delivery time has been granted by TCEQ. Each shipment must be accompanied by a packing slip. Packing slips should reflect the TCEQ contract number, item description, lot number and quantity, if applicable.

9.2 Safety Data Sheet. Contractor must provide to TCEQ, at no cost, at least one copy of any applicable manufacturer's Safety Data Sheet (SDS) (formerly known as Material Safety Data Sheet or MSDS) for any chemical materials provided. Contractor must make available, at no cost, the relevant manufacturer’s SDS to any person that may be affected by the Work.

10. Superintendence by the contractor

10.1 Contractor’s Responsibility for Subcontractors. All acts and omissions of subcontractors, suppliers and others performing or furnishing any of the Work under a direct or indirect contract with Contractor (“Subcontractors”) are imputed to Contractor. Nothing in this Contract creates a contractual relationship between TCEQ and any Subcontractor except for product warranties for goods supplied by a third-party manufacturer and delivered to TCEQ. Nothing in this Contract creates any obligation for TCEQ to pay any Subcontractor. Contractor is solely responsible for scheduling and coordinating the work of Subcontractors, and for all communications to Subcontractors.

10.2 Superintendence of the Work. Contractor shall supervise all Work. Contractor is solely responsible for the means, methods, design, processes, procedures and conduct of the Work. This responsibility includes control of associated hazards to assure the safety of the performance of the Work, and for the protection of all persons, property, premises and facilities which may be affected by the Work. No action by TCEQ will transfer this responsibility to TCEQ. Contractor shall maintain a superintendent capable of overseeing performance of the Work at any location where Work is performed.

10.3 Routine Reviews. If the Contractor will perform research or work on critical infrastructure, or have access to critical infrastructure, the Contractor has a continuing obligation to ensure its actions are consistent with the requirements of Executive Order No. 48. Critical infrastructure is defined in Section 117.001(2), Texas Business and Commerce Code.

This includes completing routine reviews of its applicants, employees, subcontractors, and subcontractor’s employees to determine whether their criminal history or continuous connections to the government or political apparatus of a foreign adversary, or something else might prevent the applicant, employee, subcontractor, or subcontractor’s employee from being able to maintain the security or integrity of the infrastructure. Contractor must notify the TCEQ Contract Manager within two business days if it finds any of the aforementioned information.

11. Subcontractors and Employees

11.1 Personnel. Contractor shall provide competent, suitably qualified personnel to perform the Work. Contractor shall at all times maintain good discipline and order at the site of the Work. Contractor shall require its personnel to execute any confidentiality agreements, and any other required assignments, licenses or other instruments, and to provide information related to Intellectual Property, as may be necessary to effectuate the provisions of the Contract. Contractor will, upon request of TCEQ, obtain and provide background checks on personnel performing Work at a TCEQ campus.

11.2 TCEQ Objection. Contractor shall not use any subcontractor, employee, supplier, or other person or organization to whom TCEQ reasonably objects.

11.3 Key Personnel and Subcontractors. Contractor’s Project Manager and any individuals specified for the key personnel positions listed in the Contract are material to the performance of the Work. Contractor shall provide notice to TCEQ within five (5) business days of making substitutions to key personnel. Substitutes shall be at least as qualified as the personnel or subcontractors being replaced.

11.4 Flowdown of Contract Provisions. Contractor shall include in its subcontracts, supplier contracts, employment contracts, and employment policies any provision included in this Contract, or shall include a similar provision, whenever and to the extent necessary in order for Contractor to fulfill its obligations under this Contract, regardless of whether or not the provision expressly requires that it be included in such contracts or policies.

11.5 E-Verify. Contractor will use the U.S. Department of Homeland Security’s E- Verify system to determine the eligibility of (1) all persons employed during the Contract term to perform duties within Texas; and (2) all persons (including subcontractors) within the United States of America assigned by the contractor to perform Work pursuant to the Contract.

11.6 Equal Opportunity. Contractor shall not discriminate against any person on the basis of race, color, national origin, religion, sex, age, and disability in the performance of this Contract.

12. Books and Records

12.1 Contractor’s Books and Records. During the Contract and for four years thereafter, Contractor shall maintain books, records, documents, and other evidence reasonably pertinent to Contractor’s performance of the Work.

Contractor shall maintain all financial records in accordance with generally accepted accounting principles. Contractor shall permit representatives and agents of TCEQ, or authorized state and federal agencies, to have unrestricted access to all records, data and facilities as necessary to review, inspect, and audit all financial activities and services associated with TCEQ funds.

Contractor shall provide appropriate facilities for such access and inspection.

12.2 Right to Audit. Pursuant to Section 2262.154 of the Texas Government Code, the State auditor may conduct an audit or investigation of the Contractor or any other entity or person receiving funds from the State directly under this contract or indirectly through a subcontract under this contract. The acceptance of funds by the Contractor or any other entity or person directly under this contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the State auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, the Contractor or other entity that is the subject of an audit or investigation by the State auditor must provide the State auditor with access to any information the State auditor considers relevant to the investigation or audit. Contractor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through the Contractor and the requirement to cooperate is included in any subcontract it awards

12.3 Time Sheets. Contractor shall maintain and, upon request by TCEQ, submit weekly time sheets for each person providing services on behalf of Contractor or a subcontractor. The time sheets must state the position held by each person and the number of hours worked. Upon request, the timesheets must be submitted to the TCEQ Contract Manager weekly by noon Central Time on Monday of the following week.

13. Warranties and Certifications

13.1 In addition to all warranties established or implied by law, Contractor warrants that:

13.1.1 All goods, services and property provided conform to this Contract and to all representations made or provided by the Contractor for the purpose of inducing the TCEQ…