ESBD_474217_1765213510605_Solicitation Package_601440000051583.pdf

INSTRUCTIONS TO RESPONDENTS

USE OF NATIONAL INSTITUTE OF GOVERNMENTAL PURCHASING CODE

The Texas Department of Transportation (TxDOT) uses the National Institute of Governmental Purchasing, Inc., (NIGP) code to standardize purchases by conforming to the class, item, and group structure of the code. The NIGP code is used to select vendors for our master vendor file from the Texas Comptroller of Public Accounts (CPA) Centralized Master Bidders List (CMBL).

New suppliers and other vendors wishing to furnish materials, equipment, supplies and services to TxDOT should apply to be on the CMBL to receive bidding opportunities.

Existing TxDOT vendors need only be concerned that the information listed on the CMBL file is correct, and that the applicable NIGP class and item are selected for those you can provide.

CMBL information is available online at: https://comptroller.texas.gov/purchasing/vendor/cmbl/ or by phoning 1-512-463-3459.

Early Payment Program - TxDOT is offering an important program to all respondents that provide prioritized invoice processing and payments (prior to the 30th day after receipt of a correct invoice). The program provides enrolled vendors enhanced benefits from improved invoice processing to priority handling to cash advancement and technology efficiencies.

Respondents offering a cash discount in exchange for TxDOT’s priority invoice processing and early payment agreement should complete and return the attached form entitled “Priority Invoice and Early Payment Program” with the response.

Additional information may be found at the following website: http://www.txdot.gov/business/vendors/epp.html

Revised 05/08/2024

THE ATTACHED SOLICITATION SHOULD BE RETURNED AS FOLLOWS:

must be received before the hour and dateAll responses for Solicitation No.

specified

All reference to time in the solicitation shall mean Central Time.

Email responses must be sent to . Email responses must not exceed 20 MB and be in portable document format (PDF) or Excel format for pricing schedules, signed by respondent, and attached to the email to be considered for award. Emails exceeding 20 MB must be sent to through managed file transfer services such as, but not restricted to, Dropbox™. TxDOT will not be responsible for failure of electronic equipment, operator error, server delays, or system outages. Responses that are late, illegible, incomplete, file corrupted, flagged as a virus, or otherwise non-responsive will not be considered.

Respondent must place the following in the subject line of their email submission: Solicitation Number, Company Name.

The response must be sent only to . Any response sent to any email address other than

- whether directly, courtesy copy (cc), or blind copy (bcc) - will be considered non-responsive.

For hand delivery or courier service, United States Postal Service, Federal Express, United Parcel Service, or other mail delivery service, contact the purchaser for assistance.

SHIP TO THE FOLLOWING LOCATION

UNLESS OTHERWISE NOTED

PARIS DISTRICT HEADQUARTERS

3500 SW LOOP 286

PARIS TX 75460

United States

SEE SPECIFIC INSTRUCTIONS FOR

EACH LINE ITEM

1 3.00 EA 03193000000

UNIT HEATERS, GAS-FIRED (RADIANT

ANDINFRARED, PORTABLE AND STATIONARY)

SHIP THIS ITEM TO THE FOLLOWING LOCATION

PARIS DISTRICT HEADQUARTERS

3500 SW LOOP 286

PARIS TX 75460

United States

Trailer mounted gas heaters for the TxDOT Paris District. Price must include associated duct work, remote thermostat, and delivery.

Units to be delivered to:

TxDOT Paris 3500 SW Loop 286 Paris, TX 75460

1 Million BTU Oil Indirect Fired Heater, Model FVO-1100TR-K, Manufacturer: Flagro Quantity: 3

Additional Components:

HP12625GBV – Duct, 12" Diameter × 25' Long, Dark Gray Hitex Quantity: 12

A970188 – 16" × 25 Return Flex Duct

Page 1INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Item Item Quantity Unit Make/ Unit Extended No. Description Model Price Price

IF RESPONDING, FORM MUST BE SIGNED. IF NOT RESPONDING. DO NOT RETURN THIS FORM.

Failure to sign will disqualify response.

Authorized Signature Date

Printed Name

By signing solicitation, respondent certifies that if the Texas address is shown as the address of the respondent, respondent qualifies as a Texas Bidder as defined in 34 T AC Rule 20.306

Quantity: 12

TXHET06712025

Quantity: 1

FV-THB (30M) – Remote Thermostat with 100' Cord Quantity: 6

The following comments apply to the entire Solicitation

1. Description of Goods:

This solicitation is to establish a contract for trailer mounted gas heaters for the TxDOT Paris District.

2. Emergency:

This solicitation is for an emergency purchase made under Texas Government Code, §2155.137 and 34 TAC 20.82.

3. Electronic State Business Daily

(ESBD):

This solicitation is posted on the ESBD.

It is the responsibility of the respondents to check the ESBD for addenda or additional information related to the solicitation. Vendors active on the CMBL at the time the solicitation was posted will receive notifications regarding addenda or additional information related to the solicitation.

http://www.txsmartbuy.com/esbd

4. Order of Precedence:

In the event of any conflict, terms contained in the document shall prevail in the order as listed below:

4.1. Solicitation No. 601440000051583

4.2. TxDOT Terms and Conditions, August,

4.2.1. Payment will be made in

accordance with Part 4, Para. 4.04 (a)

5. Insurance Requirements:

The respondent must provide to TxDOT an executed Certificate of Insurance for

Page 2INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Item Item Quantity Unit Make/ Unit Extended No. Description Model Price Price

Services, Form 1950, per TxDOT Terms and Conditions, paragraph 5, within seven business days of request by TxDOT.

6. Estimated Quantities:

Quantities are estimates only to be used for the purpose of comparing responses.

The respondent must enter their unit price on Solicitation.

Total price will be evaluated by multiplying the unit price for each line by the estimated quantities listed on Solicitation.

TxDOT will order only the amount needed to satisfy operating requirements; no guarantee of any minimum or maximum purchase is made or implied. Total amount ordered must not exceed the aggregate contract amount unless additional funds are allocated, and the total contract amount is increased in accordance with the terms and conditions.

7. Delivery:

Delivery must be made between 8 AM and 5 PM Monday through Friday except on regularly observed state or federal holidays, unless prior approval has been obtained from TxDOT.

8. Contact Information:

The individuals listed below are the only authorized TxDOT contacts.

Contacting any other TxDOT personnel regarding this solicitation, may result in the respondent being disqualified.

Any changes as a result of questions will be made by TxDOT in the form of an addendum to the solicitation; no oral changes will be considered.

For clarification or questions regarding this solicitation, respondents may contact:

Primary Contact: Jeremy Lewallen, CTCD, CTCM

Phone: (817) 370-3617 Email: Jeremy.Lewallen@txdot.gov

Secondary Contact: Kethenus Dixon, CTCD, CTCM

Phone: (903) 737-9221

Page 3INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Email: Kethenus.Dixon@txdot.gov

9. Vendor Performance: TxDOT will monitor performance on a regular basis.

9.1. TxDOT may consider the following

performance by the vendor as unsatisfactory performance - An unsatisfactory performance determination includes, but is not limited to:

9.1.1. Failure to deliver any portion of

the work product.

9.2. Exceptional performance

determination includes, but is not limited to:

9.2.1. Deliverables made early upon

TxDOT member request.

9.2.2. Vendor commended for exceptional

customer service

9.2.3. Exceptional service provided

10. Packaging Requirements:

All cardboard boxes must be labeled, listing the manufacturer's name, part number, description, quantity, and box weight.

All cardboard boxes must be suitable in bursting strength to allow for the weight of the contents and to allow for the stacking of the boxes a maximum of four high on a pallet for shipping and storage.

Packaging other than specified herein is acceptable only with the prior written approval of TxDOT’s designated TxDOT representative.

11. Equipment:

Equipment furnished must be the latest model in current production, as offered to commercial trade, and of quality workmanship and material. The vendor represents that all equipment offered will be new. Used, shopworn, demonstrator, prototype, re-manufactured, or discontinued models are not acceptable.

Page 4INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Vendor must provide Certificate of Origin, Certificate of Title, and any other documents required for this equipment.

Respondent must submit with the solicitation the latest printed literature and detailed specifications on equipment the respondent proposes to furnish.

All parts not specifically mentioned which are necessary for the unit to be complete and ready for operation or which are normally furnished as standard equipment must be furnished by the vendor. All parts must conform in strength, quality, and workmanship to the accepted standard of the industry.

The unit provided must meet or exceed all federal and state of Texas safety, health, lighting, and noise regulations and standards in effect and applicable to equipment furnished at the time of manufacture.

12. Data Sheets:

The data sheet(s) should be returned for informational purposes only. The data sheet(s) must be provided within three working days of request. Failure to provide the completed data sheet(s) within the requested time will result in the response being considered non-responsive.

13. Installation:

Vendor must install unit(s) at the TxDOT designated site and ensure complete installation of the equipment, including providing all cables, hoses, brackets, and accessories necessary for complete and safe installation, connection to power and telecommunications sources, and diagnostic testing. Unit(s) shall be fully operational. TxDOT will execute all physical modifications to the installation site unless otherwise specified.

Vendor must notify TxDOT point of contact via telephone or email a minimum of 5 working days prior to proposed installation date.

Page 5INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

14. Factory-Trained Technician:

The vendor must provide the services of a competent factory-trained technician thoroughly trained in the use and operation of the unit to TxDOT for a minimum of 2 hour(s) instruction on safety, operation, and preventive maintenance of the unit. Services shall be provided after the unit has been delivered and is ready for operation but prior to payment. The training must take place on TxDOT's premises at a time and date mutually agreed upon by the vendor and TxDOT.

15. Warranty:

Warranty: Vendor must warrant equipment for a minimum of 12 months. If the manufacturer's standard warranty period exceeds 12 months, then the standard warranty period shall apply. The warranty begins on the date the unit is determined to meet specifications and accepted into TxDOT’s inventory. The vendor must furnish a warranty with the equipment indicating the terms and conditions of the warranty and list of names and addresses of servicing dealers in the state of Texas who perform warranty work.

16. Manuals:

Manual(s): Original manual(s) containing illustrated parts list(s) and operating and service instructions for the unit must be delivered with each unit. Copies of manual(s) are not acceptable.

• Electronic copies of manuals from the manufacturer are acceptable.

• Manual(s) must include all necessary service, warnings, operating instructions and safety precautions for each unit delivered.

• Parts list(s) must cover all components of the unit. Each part must be identified by part number, description, and component location.

Page 6INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

The following additional information must be provided by the vendor at time of delivery if not included in the manual referenced above:

• Manufacturer’s recommended service and preventive maintenance intervals.

17. Response Submission

17.1. GENERAL FORMAT: The respondent

must submit one signed and dated response to include the documentation required per response paragraph 17.3 to the email address as indicated on the “Instructions to Respondents” page.

17.2. The respondent shall not encrypt

or password protect response or embed documents within the response; each section must be its own separate document.

17.3. RESPONSE: Failure by the

respondent to submit the documentation listed below will result in the response being considered non-responsive. The response submission must be submitted with each section named with the “Section #” and brief description not to exceed 30 total characters as a separate document in the following format:

17.3.1. Section 1 – Signed Invitation

for Bid

17.3.2. Section 2 – Texas Family Code

Schedule

17.3.3. Section 3 – Addenda (if applicable)

18. Vendor Point of Contact: Name:

Phone:

Email:

19. Vendor Verification of Federal Employer Identification Number: Vendor to provide current company name:

Vendor to provide federal EIN:

If invoice will be submitted by, and/or

Page 7INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

payment made to an EIN or company name different from the vendor on the contract, vendor must complete the following to authorize payment:

EIN of company authorized to invoice for vendor: Name of Invoicing Company:

EIN of company authorized to receive payment: Name of company to be paid:

20. Preferences:

Check below if preference claimed under rule 34TAC 20.306.

Tie-Bid Preferences:

_Supplies, materials or equipment produced in Texas or offered by a Texas bidder.

_ Agricultural products produced or grown in Texas.

_Agricultural products and services offered by Texas bidder.

_USA produced supplies, material or equipment.

Products produced at facilities located on formerly contaminated property Products and services from economically depressed or blighted areas.

Goods produced or offered by a Texas bidder that is owned by a service-disabled veteran who is a Texas resident.

Source Preferences:

Products of persons with mental or physical disabilities Vendors that meet or exceed air quality standards. For contracts to be performed, in whole or in part, in a designated non-attainment area or an affected county, as those terms are defined by Health and Safety Code

386.001 Texas emission reduction plan

Manufacturer that has a recycle program for computer equipment Contractor providing foods of higher nutritional value Specification Preferences:

Point lines made of recycled materials, remanufactured, or environmentally sensitive materials including recycled steel

Page 8INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Energy efficient products Rubberized asphalt paving materials Recycled motor oil and lubricants

If the name of your company is not printed on the heading of this solicitation, you must write the full name of company, full name of signer, mailing address, and respondent's employer identification number (EIN) on the face of the solicitation. To minimize identity theft, every company must have an employer Identification number (EIN), also known as a federal tax identification number, prior to award of a contract.

For information on obtaining your EIN, call 800-829-4933 or visit the following website:

https://www.irs.gov/businesses/small-bus inesses-self-employed/employer-id-numbers

(NOTE: this link will not work if capitalization is used. Type in navigation bar using lower case letters)

21. Calendar of Events

NOTE: All dates will be determined prior to posting solicitation on the ESBD.

Estimated Solicitation Posting Date:

12/08/2025

Response Due Date: 12/09/2025, 10:00 a.m. central time

Tentative Date for Contract Award:

12/09/2025

Page 9INVITATION FOR BID 12/04/2025

SOLICITATION NO: 601440000051583

OPENING DATE 10:00 AM Dec 09, 2025 To:

Blank Vendor X Austin TX 78701

VENDOR ID: 9999999999 - 999

Return Sealed Response To:

See Body of Solicitation for Specific Return Instructions

BUYER: Lewallen, Jeremy

PHONE: 817/370-3617

Shows opening date and number in lower left hand corner of sealed response envelope and show return address of vendor.

Vendor agrees to comply with the solicitation below and at terms and conditions.

F.O.B. destination means vendor retain title to goods until delivered and the price quoted includes all freight charges.

Delivery in _______________________________Days Cash Discount_____________%_________________ Days

QUOTE F.O.B. DESTINATION

Revised August 2025 i

TEXAS DEPARTMENT OF TRANSPORTATION

TERMS AND CONDITIONS

TABLE OF CONTENTS

PART 1. INTRODUCTION

1.01 GENERAL

1.02 STATUTORY AUTHORITY

1.03 TITLE VI ASSURANCE

1.04 ENVIRONMENTAL IMPACT

1.05 COMPLIANCE WITH LAWS

PART 2. GENERAL INSTRUCTIONS

2.01 SPECIFICATIONS

2.02 RESPONSE SUBMISSIONS

2.03 PRICING

2.04 ADA CONSIDERATIONS AND NOTIFICATION

2.05 RESPONSE OPENINGS AND DISCLOSURE OF INFORMATION

2.06 ALTERATIONS OR WITHDRAWAL OF RESPONSES

2.07 DETERMINING AWARD

2.08 PREFERENCES

2.09 DELIVERY

2.10 INSPECTIONS AND TESTS

2.11 VENDOR PERFORMANCE

PART 3. RESPONDENT AFFIRMATIONS

3.01 FALSE STATEMENTS

3.02 REPRESENTATIONS, WARRANTIES, AND COVENANTS

3.03 GRATUITIES

3.04 CERTAIN BIDS AND CONTRACTS PROHIBITED

3.05 ANTITRUST LAWS

3.06 DECEPTIVE TRADE PRACTICES; UNFAIR BUSINESS PRACTICES

3.07 COLLUSION

3.08 INELIGIBILITY UNDER FAMILY CODE

3.09 CONTRACTING WITH EX-TXDOT EXECUTIVE DIRECTOR

3.10 DEBT TO THE STATE

3.11 RESPONDENT ELIGIBILITY

3.12 NEPOTISM DISCLOSURE

3.13 BOYCOTTING ISRAEL

3.14 DISCLOSURE OF RESTRICTED EMPLOYMENT

3.15 ANTI-TERRORISM OR TERRORIST ORGANIZATION PROHIBITED

3.16 CONTRACTING INFORMATION RESPONSIBILITIES

3.17 HUMAN TRAFFICKING PROHIBITION

3.18 NO CONFLICTS OF INTEREST

3.19 COVID VACCINE PASSPORTS

3.20 FIREARM AND AMMUNITION DISCRIMINATION

3.21 LONE STAR INFRASTRUCTURE PROTECTION ACT

3.22 BOYCOTTING ENERGY COMPANIES

3.23 FOREIGN ADVERSARIES

PART 4. GENERAL TERMS AND CONDITIONS

4.01 CONTRACTS

4.02 FUNDING

4.03 INVOICING

4.04 PAYMENT

ii

4.05 INTELLECTUAL PROPERTY

4.06 ELECTRONIC AND INFORMATION RESOURCES ACCESSIBILITY STANDARDS

4.07 CYBER SECURITY TRAINING

4.08 SITE VISITS

4.09 NON-WAIVER OF RIGHTS

4.10 LIMITATION ON AUTHORITY; NO OTHER OBLIGATIONS

4.11 VENUE AND JURISDICTION; APPLICABLE LAW

4.12 VENDOR ASSIGNMENTS

4.13 FORCE MAJEURE

4.14 RIGHT TO AUDIT

4.15 INDEMNIFICATION

4.16 DAMAGE TO TXDOT PROPERTY

4.17 PUBLIC INFORMATION ACT AND CONFIDENTIALITY

4.18 BUY TEXAS

4.19 COMPETENCE OF VENDOR

4.20 CORRECTIONS TO WORK

4.21 IT SERVICE CONTRACTS SECURITY

4.22 NOTICES

4.23 PUBLIC DISCLOSURE

4.24 DISASTER RECOVERY PLAN

PART 5. INSURANCE

5.01 PRIOR TO CONTRACT AWARD

5.02 DURING TERM OF CONTRACT

5.03 WAIVER OF SUBROGATION ENDORSEMENT

5.04 WORKERS’ COMPENSATION INSURANCE

5.05 WORKERS’ COMPENSATION INSURANCE FOR BUILDING AND CONSTRUCTION

SERVICES

5.06 COMMERCIAL GENERAL LIABILITY INSURANCE

5.07 COMMERCIAL AUTOMOBILE POLICY

PART 6. VENDOR PERSONNEL MANAGEMENT

6.01 INDEPENDENT CONTRACTOR

6.02 ALCOHOL, DRUG, AND SMOKE-FREE WORKPLACE ... ERROR! BOOKMARK NOT DEFINED.

6.03 REPLACEMENT OF PERSONNEL

6.04 LABOR/MATERIAL/EQUIPMENT

6.05 ENGLISH-SPEAKING STAFF

6.06 FELONY CRIMINAL CONVICTIONS

6.07 SUBCONTRACTING REQUIREMENTS

6.08 PAYMENT OF SUBCONTRACTORS

6.09 VENDOR TITLE VI AFFIRMATIONS

6.10 E-VERIFY

PART 7. DISPUTE RESOLUTION

7.01 DISPUTE RESOLUTION

PART 8. CONTRACT TERMS

8.01 TERM OF CONTRACT

8.02 ORDER OF PRECEDENCE

8.03 TERMINATION OF A CONTRACT

8.04 REMEDIES

8.05 SALE OR ASSIGNMENT

8.06 RENEWAL OF CONTRACT

8.07 EXTENSION OF CONTRACTS

8.08 SEVERABILITY CLAUSE

8.09 AMENDING THE CONTRACT

iii

8.10 THIRD-PARTY BENEFICIARIES

8.11 BINDING EFFECT AND SURVIVAL OF OBLIGATIONS

APPENDIX A

APPENDIX B ................................................................................... ERROR! BOOKMARK NOT DEFINED.

1 – 24

TEXAS DEPARTMENT OF TRANSPORTATION

TERMS AND CONDITIONS

PART 1. INTRODUCTION

1.01 GENERAL: These Terms and Conditions apply to the solicitation for goods and/or services [whether a Request for Quote (RFQ), Invitation for Bid (IFB), Request for Offer (RFO) or Request for Proposal (RFP)] offered by the Texas Department of Transportation (TxDOT) (“solicitation”) and any contract issued by TxDOT resulting from the solicitation (“purchase order” or “contract”). The term “response” or “bid” means the proposal, quote, bid, or offer made to TxDOT in response to the solicitation. The term “respondent” or “bidder” means the party who submits the response to the solicitation, including the vendor. The term “vendor” or “contractor” means the party listed as vendor in the contract. Any reference to time in the solicitation or contract shall mean central time.

1.02 STATUTORY AUTHORITY: The solicitation and contract are authorized by Government Code Title 10, Subtitle D (the “Purchasing Act”). The solicitation and contract are subject to all applicable requirements of the Purchasing Act [in particular, Government Code Chapter 2151 (General Provisions), Chapter 2155 (Purchasing: General Rules and Procedures), Chapter 2157 (Purchasing: Purchase of Automated Information Systems), and Chapter 2161 (Historically Underutilized Businesses, “HUBs”)] and those requirements established by rule of the Texas Comptroller of Public Accounts (CPA), Statewide Procurement Division (SPD), as contained in Title 34, Chapter 20, of the Texas Administrative Code (“TAC”), and to other applicable federal and state statutes and rules herein cited. Any references in this contract to the “Government Code” mean the Texas Government Code.

1.03 TITLE VI ASSURANCE: TxDOT, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and 49 C.F.R. Part 21 and 28 CFR §50.3 (for purposes of this section and §6.10 only, the “Acts” and the “Regulations,” respectively), hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.

Nondiscrimination programs require that federal-aid recipients, sub-recipients, and contractors prevent discrimination and ensure nondiscrimination in all their programs and activities, whether those programs and activities are federally-funded or not.

1.04 ENVIRONMENTAL IMPACT: It is TxDOT’s intent to purchase goods, equipment, and services having the least adverse environmental impact within the constraints of statutory purchasing requirements, departmental need, availability, and sound economic considerations in accordance with 34 TAC §20.306 and 20.307.

1.05 COMPLIANCE WITH LAWS: Vendor must comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting contract performance, including, if applicable, laws and regulations regarding workers’ compensation, minimum and maximum salaries and wages, prompt payment, and licensing. Vendor must maintain all licenses and certifications required by law or by the contract throughout the term of the contract. When required, vendor must furnish TxDOT with satisfactory proof of its compliance.

PART 2. GENERAL INSTRUCTIONS

2.01 SPECIFICATIONS

(a) Respondent must carefully examine the solicitation. Respondent is responsible for securing any additional information from the TxDOT purchaser needed to gain a clear and full understanding of TxDOT’s requirements.

2 – 24

(b) TxDOT will not be bound by any oral statement or representation contrary to the written specifications of the solicitation. Any revision, clarification, or interpretation pertaining to the solicitation will be in writing and issued by TxDOT as an addendum. Any change or interpretation not in an addendum will not legally bind TxDOT. Any addendum must be issued through TxDOT’s Procurement Division.

(c) The goods furnished or services performed shall be in accordance with the specifications set forth in the solicitation and with these Terms and Conditions. TxDOT will provide clarification of the specifications and determine the quality and acceptability of goods furnished or work performed.

If the solicitation is for a service, TxDOT will determine the manner of performance, the rate of progress of the work, and whether vendor’s performance of the service is acceptable.

(d) Any catalog, brand name, or manufacturer’s reference used in the solicitation is descriptive only (not restrictive) and is used to indicate type and quality desired. Responses on brands of like nature and quality will be considered unless advertised as proprietary or sole source under Government Code §2155.067. Respondent must show manufacturer, brand or trade name, and other description of the product offered in response to the solicitation. If offer is for other than example(s) shown in the solicitation, include illustration(s) and complete description(s) of product(s) in the response to the solicitation. If respondent takes no exception to specifications or reference data in the response, vendor will be required to furnish brand names, numbers, etc., as specified.

(e) Unless otherwise specified, all goods offered must be new and in first-class condition, including shipping and storage containers. Verbal agreements to the contrary will not be recognized.

(f) Manufacturer’s standard warranty must apply unless otherwise stated in this solicitation.

(g) All electrical items must meet all applicable OSHA standards and regulations and bear the appropriate listing from UL, FMRC, or NEMA.

(h) Any iron or steel product produced through a manufacturing process and used in the project must be produced in the United States, to the extent required by Government Code Chapter 2252, Subchapter G. That Subchapter generally applies to contracts to (A) construct, remodel, or alter a building, a structure, or infrastructure; (B) supply a material for a project described by subsection (A); or (C) finance, refinance, or provide money from funds administered by a governmental entity for a project described by subsection (A).

2.02 RESPONSE SUBMISSIONS

(a) Response must be submitted as noted in the solicitation.

(b) Late responses will not be considered under any circumstances.

(c) Documentation provided with the response should be complete and comprehensive. TxDOT will not be responsible for locating or securing information not included in the response. Failure to furnish required documentation with the response may result in the response being deemed incomplete and non-responsive, resulting in rejection. TxDOT will not be responsible for any expenses relating to responses or development of documentation that may result from this solicitation.

(d) Failure to sign the solicitation will disqualify the response. The person signing the response must have authorization to contractually bind the company. The solicitation response must include an Employer Identification Number (EIN) and full firm name and address. The EIN should be entered in the space provided on the solicitation.

(e) Facsimile (Fax) responses will not be considered unless otherwise stated in the solicitation. Fax responses must be received before the hour and date specified for the solicitation opening.

TxDOT will not be responsible for failure of electronic equipment or operator error. Responses that are late, illegible, incomplete, or otherwise non-responsive will not be considered.

3 – 24

(f) Email responses may be accepted if stated on the solicitation. Email responses must be received before the hour and date specified for the solicitation opening and be in Portable Document Format (PDF) (except for pricing schedules, which must be submitted in Excel format using the pricing spreadsheet developed by the department). All attached documents together must not exceed a total of 20 MB, must be signed by respondent, and be attached to the email to be considered for award. TxDOT will not be responsible for failure of electronic equipment, operator error, or system delays or outages. Responses that are late, illegible, incomplete, file-corrupted, flagged as a virus, or otherwise non-responsive will not be considered.

(g) RESPONDENT EXCEPTIONS OR CONDITIONED RESPONSES: Exceptions taken by respondent to TxDOT’s Terms and Conditions, or respondent’s Terms and Conditions attached to a response, will not be considered unless specifically referred to and clearly identified as such within the response, including, without limitations, exceptions related to software maintenance and usage or equipment maintenance services. TxDOT may reject a response that takes exception to TxDOT’s Terms and Conditions.

(h) TxDOT reserves the right to accept or reject all or any part of any response, waive minor technicalities, and make an award to best serve the interests of the state. TxDOT reserves the right to reject any response not prepared and submitted in accordance with the solicitation requirements.

(i) Response should indicate number of days required to deliver goods, or begin service (if required), at TxDOT’s designated location. Failure to indicate delivery time obligates vendor to complete delivery in fourteen (14) calendar days.

(j) Samples, when requested, must be furnished at no cost to TxDOT. TxDOT may perform tests on samples. If not destroyed in testing, samples will be returned upon request at respondent’s expense. Each sample must be marked with respondent’s name and address and TxDOT solicitation number. Samples must not be enclosed or attached to a response unless specified in the solicitation.

(k) The response, including price, is irrevocable for 120 calendar days following the hour and date specified for the solicitation opening. TxDOT may extend this period with respondent’s written agreement.

2.03 PRICING

(a) TxDOT’s automated purchasing system requires pricing to be submitted per unit and extended by multiplying the submitted price by the quantity. Unit prices govern in the event of extension errors. If a trade discount is offered on the solicitation response, it should be deducted, and net line extensions should be shown.

(b) All purchases are on a firm, fixed price basis unless otherwise stated in the solicitation.

(c) Vendor must not increase price(s) during the term of the contract unless otherwise stated in the contract. Vendor must give price reductions to TxDOT that result from reduced cost to vendor during the term of the contract.

(d) All prices must be F.O.B. destination, freight prepaid and allowed. This means vendor must prepay the freight charges and include them in the unit price.

(e) Purchases made for state use are exempt from state and local sales tax and federal excise tax.

Do not include tax in response pricing unless otherwise specified in the solicitation. State Sales Tax and Federal Excise Tax Exemption Certificates will be furnished by TxDOT on request.

(f) The contract may contain a “Total Cost Not to Exceed” statement. Vendor must not perform any work that may exceed either the contract total or the not-to-exceed total without prior written authorization from TxDOT.

(g) Consistent and continued tie response pricing may lead to rejection of the responses by TxDOT and investigation for antitrust violations.

4 – 24

2.04 ADA CONSIDERATIONS AND NOTIFICATION: Persons with special needs or disabilities who plan to attend any pre-response conference or bid opening and who require auxiliary aids or service should contact the purchaser noted on the solicitation as the point-of-contact a minimum of three (3) business days prior to the meeting so arrangements can be made.

2.05 RESPONSE OPENINGS AND DISCLOSURE OF INFORMATION

(a) At the time of opening for RFOs or RFPs, only the names of respondents will be announced.

Prices will not be disclosed.

(b) At the time of opening for RFQs and IFBs, names of respondents will be announced, and pricing disclosed.

(c) Information submitted in an accepted response will not be returned to respondent. Government Code Chapter 552 (the “Public Information Act”) allows the public to have access to information in the possession of a governmental body through an open records request. Therefore, respondent must clearly identify in the response any confidential or proprietary information. Proprietary information identified by respondent in the response will be kept confidential by TxDOT to the extent permitted by state law. TxDOT will use best efforts to give respondent or vendor an opportunity to present to the Office of the Attorney General its arguments for non-disclosure of its identified confidential or proprietary information.

2.06 ALTERATIONS OR WITHDRAWAL OF RESPONSES

(a) Any alterations to a response made before the opening date and time must be initialed by respondent or authorized agent. Response cannot be altered or amended after the opening date and time.

(b) A response may be withdrawn if requested in writing prior to the opening or closing date and time.

A response may be withdrawn from consideration after the opening date only with the approval of TxDOT based on respondent’s written, acceptable reason. The response will not be considered for award but will be retained by TxDOT according to the response information confidentiality provision referenced in §2.05 (c).

2.07 DETERMINING AWARD: A response to a solicitation is an offer to contract with TxDOT based upon the terms, conditions, and specifications contained in the solicitation. Responses do not become contracts unless and until they are accepted through an authorized TxDOT designee by issuance of a contract. In determining the best value for the state, the purchase price and whether the goods or services meet specifications are the most important considerations, unless otherwise stated in the solicitation.

(a) BEST VALUE CRITERIA FOR PURCHASE OF GOODS OR SERVICES: When specified in the solicitation, the factors listed in Government Code §2155.074 will be considered in making a best value award. This section allows TxDOT to apply best value criteria to obtain goods and services that provide the best value for TxDOT. Under these guidelines, a respondent is not automatically awarded a contract if they submit the lowest bid response. TxDOT will be the sole judge as to which response is the most advantageous and in the best interest of TxDOT.

Factors, other than price, that may be considered in making an award:

(1) Installation costs.

(2) Life cycle costs.

(3) Quality and reliability of goods and services.

(4) Delivery terms.

(5) Indicators of probable vendor performance under the contract such as past vendor performance, the vendor's financial resources and ability to perform, the vendor's experience or demonstrated capability and responsibility, and the vendor's ability to provide reliable maintenance agreements and support.

(6) Cost of any employee training associated with a purchase.

5 – 24

(7) The effect of a purchase on agency productivity.

(8) The impact of a purchase on the agency's administrative resources.

(9) Other factors relevant to determining best value for the state set forth in the solicitation.

(b) ADDITIONAL BEST VALUE CRITERIA FOR RFO PURCHASES: As provided in Government Code §2157.003, additional best value criteria will be used on all information technology equipment or service purchases including but not limited to:

(1) Purchase price.

(2) Compatibility to facilitate exchange of existing data.

(3) Capacity for expansion and upgrading to more advanced levels of technology.

(4) Quantitative reliability factors.

(5) Level of training required to bring end-users to a stated level of proficiency.

(6) Technical support requirements for maintenance of data across a network platform and management of the network’s hardware and software.

(7) Items, features, etc., which are in addition to requirements listed, as well as factors which, in TxDOT’s opinion, add value to the product or service but are not specifically required within the solicitation.

(c) NEGOTIATIONS FOR RFO AND RFP PURCHASES: TxDOT reserves the right to conduct formal negotiations with respondent(s) judged to have the best offer pertaining to price, goods, services, and terms.

(d) TxDOT reserves the right to reject a response from a respondent whose goods or services to TxDOT or other state agencies have been documented as unsatisfactory in providing the same goods or services.

(e) TIE RESPONSES: In case of tie responses, one or more preferences described in Government Code Chapter 2155 and 34 TAC §20.306 will be used to make an award. Tie responses which cannot be resolved by application of one or more preferences will be made by drawing lots.

2.08 PREFERENCES: A respondent may claim a preference under 34 TAC §20.306. To claim a preference, a respondent must identify the preference on the solicitation or on the response to the solicitation. If the appropriate area on the solicitation or response is not marked, a preference will not be granted unless other documents included in the response show a right to the preference.

2.09 DELIVERY: No substitutions or cancellations will be permitted without written approval from TxDOT.

Approval must be issued in the form of a purchase order change notice issued by TxDOT’s Procurement Division.

(a) If delay is foreseen, vendor must promptly give written notice to TxDOT. TxDOT has the right to extend delivery or service date if reasons appear valid. Vendor must keep TxDOT advised at all times of the status of the order. Default in promised delivery or service date (unless vendor has received a written extension of the delivery or service date which has been signed by TxDOT) or failure to meet specifications authorizes TxDOT to purchase goods or services elsewhere and charge the full increase, if any, in cost and handling to defaulting vendor.

(b) Delivery must be made between the days and hours stated in the solicitation.

(c) Receipt of goods or services does not constitute acceptance.

(d) Goods and materials must be properly packaged. Damaged goods and materials will not be accepted. If the damage is not readily apparent at the time of delivery, the goods shall be returned to vendor at no cost to TxDOT. TxDOT reserves the right to inspect goods at a reasonable time subsequent to delivery where circumstances or conditions prevent effective inspection of the goods at the time of delivery.

6 – 24

2.10 INSPECTIONS AND TESTS: TxDOT may test and inspect goods and services purchased under the contract to ensure compliance with the specifications of the contract. TxDOT may also test and inspect goods and services before they are purchased under the contract. Goods and services will be subject to inspection and testing by TxDOT to the extent practicable at all times and places, including, without limitation, vendor’s place of business. To the extent practical, the inspections will not disrupt vendor’s daily operations. Tests will be performed on samples taken from regular shipments. In the event samples tested fail to meet all conditions and requirements of the specification, TxDOT may, at its option, reject the goods in whole or in part. The cost of the sample used and the cost of the testing shall be borne by vendor. Goods which have been delivered and rejected in whole or in part may, at TxDOT’s option, be returned to vendor or held for disposition at vendor’s risk and expense. Latent defects may result in cancellation of the contract at no expense to TxDOT. Acceptance of services will be based on attainment of performance in accordance with specifications and the contract.

2.11 VENDOR PERFORMANCE: TxDOT may review vendor’s performance under a contract of $25,000 or more resulting from the solicitation as described in Government Code §2155.089. These reviews and any resulting classification grade will be posted on the Vendor Performance Tracking System as noted in §2262.055 of the Texas Government Code.

Past Performance: A respondent's past performance will be measured based upon pass/fail criteria, in compliance with applicable provisions of Government Code §§2155.074, 2155.075, 2156.007, 2157.003, and 2157.125. Respondents may fail this selection criterion for any of the following conditions:

(a) A letter grade score below ‘C’ in the Vendor Performance System or a score of “legacy unsatisfactory” for historic reports submitted prior to the implementation of the current rating system.

(b) Being currently under a Corrective Action Plan through the CPA.

(c) Having repeated negative Vendor Performance Reports for the same reason.

(d) Having purchase orders that have been cancelled or terminated in the previous twelve (12) months for non-performance (i.e., late delivery, etc.).

Vendor performance information is located on the CPA website at http://www.txsmartbuy.com/vpts.

TxDOT may conduct reference checks with other entities regarding past performance. In addition to evaluating performance through the Vendor Performance Tracking System (as authorized by 34 TAC §20.115) TxDOT may examine other sources of vendor performance including, but not limited to, notices of termination, cure notices, assessments of liquidated damages, litigation, audit reports, and non-renewals of contracts. Any such investigations will be at the sole discretion of TxDOT and any negative findings, as determined by TxDOT, may result in non-award to respondent.

PART 3. RESPONDENT AFFIRMATIONS

3.01 FALSE STATEMENTS: Respondent represents and warrants that all statements and information in its submitted response are current, complete, true, and accurate. Submitting a response with a false statement or making material misrepresentations during the performance of a contract is a material breach of contract and may void the submitted response and any resulting contract and may result in removal of respondent from the Centralized Master Bidders List.

http://www.txsmartbuy.com/vpts

7 – 24

3.02 REPRESENTATIONS, WARRANTIES, AND COVENANTS: Respondent represents, warrants, and covenants that:

(a) Personnel must be competent, knowledgeable, and experienced in the types of services to be provided under the contract and perform such services in a professional and workmanlike manner consistent with industry standards. Services must meet all specifications set forth in the contract provided, however, that where the contract specifies a particular standard or criteria for performance more particular than the foregoing, this warranty is not intended to and does not diminish that standard or criteria for performance. Further, in any case where detailed requirements for a service are not mutually agreed upon or set forth in the contract, such services shall be fit and sufficient for the purposes expressed in, or reasonably inferred from, such contract; and

(b) All goods and services furnished in connection with the contract must be of good and merchantable quality, strictly conform in all respects to the terms of the contract including any drawings, specifications, or standards incorporated herein, and be free from any defects (latent or otherwise) in materials, workmanship, and design. In addition, respondent warrants that goods and services are suitable and sufficient for, and will perform in accordance with, the purposes for which they are intended.

3.03 GRATUITIES: Respondent has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with respondent’s submitted response.

3.04 CERTAIN BIDS AND CONTRACTS PROHIBITED: Under Government Code §2155.004, a state agency may not accept a bid or award a contract that includes proposed financial participation by a person who received compensation from the agency to participate in preparing the specifications or solicitation on which the bid or contract is based. Under Government Code §2155.004, respondent certifies that the individual or business entity named in the response or contract is eligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

3.05 ANTITRUST LAWS: Respondent represents and warrants that, in accordance with Government Code §2155.005, neither respondent nor the firm, corporation, partnership, or institution represented by respondent, or anyone acting for such firm, corporation, partnership, or institution has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Chapter 15, of the Texas Business and Commerce Code or the federal antitrust laws, or (2) communicated the contents of the response directly or indirectly to any competitor or any other person engaged in the same line of business as…