ESBD_File_239399_OE - Solicitation addendum 4 Hospital Services.docx

TEXAS WORKFORCE COMMISSION (TWC)

Procurement # 320-21-00176 Procurement Name: Open Enrollment for Hospital Services

GENERAL INFORMATION

A. Contract Type: Enrollment B. Posting This is a notice of Open Enrollment for Hospital Services (HS) to be provided to Vocational Rehabilitation (VR) Customers served by the Texas Workforce Commission (TWC) VR Division on behalf of TWC. Opportunities are available to provide Hospital Services for TWC VR Workforce Solutions offices in all areas of the state. Applicants must meet all requirements and specifications outlined herein.

C. TWC Points of Contact

1. Procurement. For purchasing-related inquiries, including sending an encrypted email to submit application electronically, contact:

a) Rebecca Stone (737) 400-5559

b) Consumer.Procurement@twc.state.tx.us

2. Program. For program-related inquiries, including questions regarding the hospital services, contact:

a) Karen Brajcki at (512) 936-4269

b) Stuart McPhail at (512) 936-3460

c) vr.medicalservices@twc.state.tx.us

D. Definitions

· Customer Information;

· Protected Health Information (PHI), in any form including without limitation, Electronic Protected Health Information or Unsecured Protected Health Information;

· Sensitive Personal Information, as defined by Texas Business and Commerce Code, Chapter 521;

· Federal Tax Information;

· Personally Identifiable Information (PII);

· Social Security Administration Data, including, without limitation, Medicaid information;

· All privileged work product; all information designated as confidential under the constitution and laws of the State of Texas and of the United States, including the Texas Health & Safety Code and the Texas Public Information Act, Texas Government Code, Chapter 552

CONTRACTOR

(or PROVIDER):

A legal business or individual who TWC is contracted with to provide goods and/or services for TWC Customers. Contractor can be used interchangeably with Provider, Service Provider, or Vendor.

E. Open Enrollment Period

F. Certifications By signing and submitting the Execution of Offer form with the Provider Enrollment Packet, Applicant attests to its compliance with the statements contained in the Applicant Certifications embedded below.

G. Contract Award TWC intends to award contracts to qualified Applicants throughout the enrollment period.

Entities, Applicants and/or individuals that are debarred or excluded by the federal government are excluded from receiving Federal contracts or certain subcontracts, and certain types of financial and nonfinancial assistance and benefits. Entities, Applicants and/or individuals that are debarred or excluded by the State of Texas are excluded from doing business with the state.

TWC may consider past performance when determining whether to award a contract to an Applicant, or any other factor it deems to be in the best interest of TWC or the State of Texas.

Participation in a post-award orientation will be required before any services related to the awarded contract can be performed.

H. Compensation

1. Hospital Services The lesser of:

a) An agreed upon flat percentage rate of fair billing.

OR

b) A negotiated rate lower than the percentage rate methodology described herein, and mutually agreed to by the TWC representative and an authorized representative of the Contractor on a case-by-case basis. This agreement shall be recorded on VR Form 3422, Reduced Payment Agreement, and signed by both parties prior to provision of the services.

OR

c) A rate otherwise defined in this section

i. Implantable Device: Implantable devices must be billed under revenue code 278 or 279 and includes any ancillary devices associated with the implantable devices, such as bars, screws, or glue. Implants not included in revenue code 278 or 279 are subject to exclusion from payment. Revenue codes 278 and 279 will be paid at the manufacturer’s list price plus 10% or the hospital’s supplier’s invoice price plus 10%. Current and accurate applicable documentation of Manufacturers List Price or the supplier’s invoice for the invoiced device must be submitted with the invoice for items billed under revenue code 278 or 279 to be paid.

ii. Robotic Surgery: TWC will pay for the primary surgical procedure that the surgeon deems necessary but will not permit an additional payment allowance for a robotic surgical technique or use of a robotic surgical system.

iii. MEDICAL RECORDS: Contractor's customary charges, not to exceed current MAPS rate.

2. When third party payments are available, the rate of payment for approved services is the lesser of the rate determined in H. 1 a-c above, or the contract rate to which the TWC customer or third-party payor are entitled by contract or law. Contractor agrees to:

a) Submit requests for all available third-party payments before billing TWC.

b) When billing TWC, provide TWC written documentation of third party payment or denial of payment, such as explanation of benefits, remittance and status reports.

c) Refund to TWC, within 60 days of receipt, any amount TWC has paid to the Contractor that has made the total payment received by Contractor for the services provided under the Contract exceed the rate of payment as determined in H. 1. a-c.

d) Except as specified in Section H. above, accept third party payments, other than Medicare Part B, as payment in full.

3. When the TWC customer is partially responsible for payment for approved services, TWC will pay to Contractor on behalf of TWC customer an amount equal to the TWC customer’s co-payment, co-insurance, or deductible due as a result of the TWC customer’s primary benefit coverage, not to exceed the rate of payment.

4. Personal service items, including but not limited to televisions, personal telephones, or gourmet meals, will not be paid for by TWC and Contractor will exclude such items from any itemized statement or billing presented by the Contractor to TWC.

5. TWC will only pay for ward or semi-private accommodations unless the attending physician certifies that a private room is a medical necessity or private accommodations are the only accommodations offered by the Contractor for that type of hospitalization.

I. TWC Standard Terms and Conditions Contracts resulting from this solicitation will include the TWC Standard Terms and Conditions for customers embedded below.

HOSPITAL SCOPE OF WORK

Hospital Services Requirements, Responsibilities, and TWC Policies Hospital Services Providers must be knowledgeable about their responsibilities and the service requirements applicable to them. The responsibilities of the Hospital Services Provider are defined in the TWC contract.

Hospital Services Scope of Work The Provider will offer services to customers whose medical needs can be met within the capability of the Provider’s staff and facilities. These services will include Inpatient and Outpatient Services provided to customers. Stand alone Ambulatory Surgery Centers and Stand Alone Clinics will not be included in a hospital contract issued by TWC. Hospital Services will be coordinated and authorized in advance by TWC by the submittal of a Service Authorization to the Provider. TWC will reimburse based on the individually executed contract.

C. Service Areas This is a Statewide Open Enrollment Solicitation. All Texas counties are included in this solicitation.

PROVIDER ENROLLMENT PACKET SUBMITTAL

A. Completed Enrollment Packets May be submitted at any time during the enrollment period. All forms must be completed in their entirety. For qualified Applicants that submit complete applications, contracts will be developed as they are approved. The volume of applications may vary during the enrollment period, and contracts may take three (3) months or more to be finalized, depending upon volume and workload.

The required method for packet submittal is via email transmission to: consumer.procurement@twc.state.tx.us.

TWC is not responsible for applications sent to an address other than that stated in the solicitation, an application submitted after the closing date, illegible, incomplete, corrupted, or otherwise considered disqualified due to failure of electronic equipment or operator error. Failure to submit an application in accordance with the requirements of the solicitation may result in disqualification.

B. Instructions for submission via EMAIL

1. Encrypted Format

Important: All emailed submissions must be received by TWC in an encrypted format to protect the content from being read by entities other than the intended recipients.

If you do not have encryption software, email the procurement TWC Point of Contact listed in Section 1.C TWC Point of Contact above and request that an email be sent to you. Submitting your application to the TWC Point of Contact by return email will cause your submission to be received by TWC in an encrypted format when all required steps are followed.

2. Email Subject Line shall read: OE - Hospital Services 320-21-00176

3. Enrollment Packet Contents and Organization (Attachments):

Attached documentation shall include all required information delineated in Section 3.C Provider Enrollment Packet below. Submit each document/form as a separate document in the email as an attachment. Application will be rejected if the Applicant does not submit documents separately as described below. Organize the application following the defined order and use the naming conventions for each attachment as described in Section 3.C Provider Enrollment Packet.

Obtain ALL required hand-written “inked” signatures.

ALL emailed attachments MUST BE SCANNED IN PDF FORMAT FOLLOWING THE DIRECTIONS in Section 3.C Provider Enrollment Packet NOTE: Applications received via U.S. POSTAL, COURIER, or HAND DELIVERY will not be accepted nor processed.

C. Provider Enrollment Packet (Contents and Organization) TAB 1: Execution of Offer

Complete the Execution of Offer form.

Naming Convention for EMAIL submittals:

T1_Applicant’s Legal Name_Execution of Offer TAB 2: W-9 and Direct Deposit Form (VR1020)

VR1020 and the VR1020 instruction are embedded above or click here to access the VR1020 or here for the VR1020 Instructions to access the forms directly the forms catalog.

Alternative W-9 forms will not be accepted. If the W-9 shows a “Doing Business As” (DBA) designation, include a copy of County DBA registry letter. Include a copy of IRS letter assigning Federal Tax ID#.

Complete the TWC W-9 and Direct Deposit Form.

Naming Convention for email submittals:

T2_Applicant’s Legal Name_ W-9

TAB 3: Child Support Certification

VR1305 and the VR1305 instructions are embedded above or click here to access the VR1305 or here for the VR1305 Instructions to access the forms directly from the forms catalog.

Complete this form.

Provide the name and social security number (SSN) of the individual or sole proprietor, or if not a sole proprietorship, of each partner, shareholder, or owner with an ownership interest of at least twenty-five (25) percent of the business entity.

If no one person owns twenty-five (25) percent or more of the business, state Not Applicable (N/A) in the Name/SSN field and complete the remaining sections.

Naming Convention for email submittals:

T3_Applicant’s Legal Name_VR1305

TAB 4: Licensing, Credentials and Accreditations

Include copies of the following:

· Department of State Health Services (DSHS) licensure(s),

· Proof of any current credentialing by CMS through an accrediting body i.e. The Joint Commission, and any specialized credentialing related to application for this contract.

Naming Convention for email submittals:

T4_Applicant’s Legal Name_ Licensure

TAB 5: Form VR3118 Hospital Facility Information

VR3118 is embedded above or click here acess the VR3118 directly from the forms catalog.

Complete entire form and include on VR3118 the types of services the facility is able to provide.

Naming Convention for email submittals:

T5_Applicant’s Legal Name_VR3118 Open Enrollment - HOSPITAL SERVICES FY21 Page 9 of 12 image1.emf

OE - Applicant Certification form OGC 3.2020.pdf

Applicant Certifications Rev 3.2020

APPLICANT CERTIFICATIONS

Signing an Application with a false statement is a material breach of contract and will void the submitted Application or any resulting contract, and the Applicant will be removed from all of the lists.

1. The Applicant certifies that they have 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 the submitted Application.

2. Pursuant to Tex. Gov't Code § 2155.004(a), Certain Bids and Contracts

Prohibited, the Applicant certifies that they have not received compensation from the agency to participate in preparing the specifications or request for proposals on which the bid or contract is based.

3. Pursuant to Tex. Gov't Code § 2155.004(b), Certain Bids and Contracts

Prohibited, the Applicant certifies that they are not ineligible to receive the specified contract and acknowledges that this contract may be terminated, and payment withheld if this certification is inaccurate.

4. Pursuant to Tex. Gov't Code § 2155.006(c), State Purchasing and General

Services under Prohibition on Certain Bids and Contracts, the Applicant certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

5. Pursuant to Tex. Gov't Code § 2261.053(c), State Contracting Standards &

Oversight under Prohibition on Certain Bids and Contracts, the Applicant certifies pursuant to this section that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

6. Pursuant to the Federal Antitrust Laws, 15 U.S.C. § 1 et seq., and the Texas

Free Enterprise and Antitrust Act of 1983, Tex. Bus. & Com. Code § 15.01 et seq., neither the Applicant nor the firm, corporation, partnership, or institution represented by the Applicant, 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, Tex. Bus. & Com. Code § 15.01 et seq. or the federal antitrust laws, or (2) communicated directly or indirectly the contents of this Application to any competitor or any other person engaged in the same line of business as the Applicant. The Applicant hereby assigns to

TWC all of the Applicant’s rights, title and interest in and to all claims and causes of action Applicant may have under the antitrust laws of Texas or the

United States for overcharges associated with this Application or any resulting contract.

7. If applicable, pursuant to Tex. Fam. Code § 231.006(d), Ineligibility to Receive

State Grants or Loans or Receive Payments on State Contracts, the Applicant certifies that the individual or business entity named in this contract, bid, or

Application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, pursuant Tex. Fam.

Code § 231.006(c) a bid or an Application for a contract, grant, or loan paid from state funds must include the name and social security number of the individual or sole proprietor and each partner, shareholder, or owner with an ownership interest of at least 25 percent of the business entity submitting the bid or Application. This information must be provided prior to contract award.

8. Pursuant to Tex. Gov't Code § 2252.903, Contracting with Persons Who Have

Certain Debts or Delinquencies, the Applicant certifies that any payments due under the contract shall be directly applied towards eliminating any debt or delinquency it has to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.

9. Pursuant to Tex. Gov't Code § 2155.441, entitled Preference Under Service

Contracts, the Applicant agrees to purchase products and materials produced in this state when they are available at a price and time comparable to products and materials produced outside the State of Texas.

10. Under Tex. Gov't Code § 669.003, Contracting with Executive Head of State

Agency, the Applicant certifies that it does not employ, or has disclosed its employment of, any former executive head of TWC. If Tex. Gov't Code §

669.003 applies, the Applicant must complete the following information in package C: Name of Former Executive: Name of State Agency: Date of

Separation from State Agency: Position with Applicant: Date of Employment with Applicant.

11. The Applicant certifies that they qualify as a Texas Resident pursuant to 34

Tex. Admin. Code § 20.282(23) which states: that the Applicant either physically resided in the state for a period of not less than twelve (12) consecutive months prior to submitting an Application for HUB certification, and list Texas as their residency in their most recent tax return submitted to the U.S.

Internal Revenue Service, or the Applicant has established, to the satisfaction of the comptroller, a Texas domicile for a period of time sufficient to demonstrate their intention to permanently reside in the State of Texas.

12. The Applicant certifies that the Terms of the contract are accepted. By submitted the Application, Applicant represents and warrants that the individual submitting this document and the documents made part of this Application is authorized to sign such documents on behalf of the Applicant and to bind the

Applicant under any contract that may result from the submission of this

Application.

13. The Applicant represents and warrants that all statements and information prepared and submitted in this document are current, complete, true and accurate. Submitting an Application with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Application and any resulting contract.

14. The Applicant certifies that they will immediately notify TWC if at any time the contractor is not in compliance with the provisions of the contract. A false statement regarding the Applicant’s compliance with the terms of the contract will be treated as a material breach of the contract and may be grounds for

TWC to terminate the contract.

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VR OE T&Cs (10-25-23).docx VR OE T&Cs (10-25-23)

Attachment 1

Texas Workforce Commission (TWC) – OE Terms & Conditions (10/2023)

By responding to the solicitation, or fulfilling the contract, procurement, or service authorization (SA) the Vendor agrees to the terms and conditions below, which apply to and become a part of every Texas Workforce Commission (TWC) purchase. Only mutual written exceptions will be valid. References to IFB/RFO/RFP/OE/Proposal equates to “Service Authorization” or “Contract” and “Bidder/ Offeror/Proposer/Respondent/Contractor” equates to “Vendor.” Any specification in the solicitation or subsequent contract that conflicts with these standard terms and conditions takes precedence. All references to “days” shall be calendar days unless specified otherwise.

***NOTE TO VENDORS: Any terms and conditions attached to a Vendor’s solicitation response will not be considered unless the Vendor specifically refers to them on the face of the first page of its response.

***WARNING: Such terms and conditions may result in disqualification of the submitted Vendor’s response (e.g., responses with a requirement to apply the laws of a State other than Texas.)

The applicability of a number of the terms and conditions below are contingent on the services and products being considered in the solicitation, contract, PO, SA, or procurement. Those terms and conditions will be noted “(As applicable to the services/products)”.

SOLICITATION RESPONSE REQUIREMENTS (As applicable to the services/products.)

Written Specifications: TWC will not be bound by any oral statement or representation contrary to the written specifications contained in the solicitation.

Incomplete Responses: Late, illegible, incomplete and/or unsigned responses may be deemed non-responsive and may not be considered.

Tax Exempt: Purchases made for State use are exempt from the State Sales tax and Federal Excise tax. Do not include tax in bid. Excise Tax Exemption Certificates are available upon request.

Identify All Parties: TWC requires all business partners, equipment, support or maintenance providers who will perform under an awarded contract to be identified prior to contract award for TWC approval. Substitutions of providers shall be submitted in writing for TWC approval during the term of the contract.

GENERAL CONDITIONS

Damage to Grounds and Buildings (As applicable to the services/products): Vendor shall be financially responsible for any or all damage done by its employees, agents and subcontractors to TWC grounds and buildings. Vendor is responsible for the removal of all debris resulting from work performed under the contract.

Texas Public Information Act:

2.2.1 Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to Texas Government Code, Chapter 552 (Public Information Act).

2.2.2 All information submitted in response to the solicitation is subject to public disclosure pursuant to the Public Information Act. In the event of a request for information pertaining to the solicitation, TWC will comply with the provisions of the Public Information Act to protect the interests of the State of Texas. The Public Information Act allows the public to have access to information in the possession of a governmental body. Therefore, Vendor must clearly identify any confidential or proprietary information on the page on which it appears in the solicitation response and reference the specific exception to disclosure in the Public Information Act that applies. Proprietary information identified by Vendor in advance will be kept confidential to the extent permitted by state law. Any information not clearly identified as confidential or proprietary shall be deemed to be subject to disclosure pursuant to the Public Information Act.

2.2.3 All information, documentation, and other material in connection with the solicitation or any resulting contract will be retained by TWC for the period specified in the Records Retention Schedule created under Texas Government Code, Chapter 441. The information will not be returned to Vendor who submitted it during the retention period.

2.2.4 Pursuant to Texas Government Code § 2252.907, Vendor shall make any public information created or exchanged with the State pursuant to any contract with TWC, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to TWC.

Award of Contract (As applicable to the services/products):

2.3.1 Responding to a solicitation is an offer to contract with the State based upon the terms, conditions, and specifications contained in the solicitation. Submitted responses do not become contracts unless and until they are accepted, and an award is made by TWC Procurement and HUB-Services and a PO or a fully executed contract is issued to the Vendor.

2.3.2 Either party may provide written notice to the other party of a change of address of the party or to change the contact name and information. Amendments shall be in writing and signed by both parties.

2.3.3 If the solicitation leading to a contract allows non-competitive renewal, renewal will be based on TWC's determination that the Vendor is in compliance with all terms of the contract, TWC's continuing need for the services, and available funding.

Vendor Assignments: No assignment is permitted by the Vendor without prior written consent of TWC. Any written request for assignment must be accompanied by written acceptance of the assignment by the assignee. Except where otherwise agreed in writing by TWC, assignment will not release Vendor from its obligations pursuant to the contract. TWC will comply with the provisions of Texas Government Code §2262.056, when applicable, by providing notice to the Legislative Budget Board of a proposed assignment prior to approval of the assignment. Contracted Vendors under a TWC Vocational Rehabilitation contract will notify TWC at least sixty (60) days before the intended effective date of any change in legal entity status, such as a change in ownership or control, name, legal status with the Texas Secretary of State, or Texas Identification Number issued by the Texas Comptroller of Public Accounts.

INDEMNIFICATION:

2.5.1 ACTS OR OMISSIONS: VENDOR SHALL INDEMNIFY AND HOLD HARMLESS TWC, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RESULTING FROM ANY ACTS OR OMISSIONS OF THE VENDOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. IF CONTRACTOR IS A PHYSICIAN OR PSYCHIATRIST, THE STATE OF TEXAS SHALL INDEMNIFY CONTRACTOR IN ACCORDANCE WITH TEX. CIV. PRACT. & REM. CODE, CH. 104.

2.5.2 VENDOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS TWC AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE PERFORMANCE OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3) TWC’S AND/OR VENDOR’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO TWC BY VENDOR OR OTHERWISE TO WHICH TWC HAS ACCESS AS A RESULT OF VENDOR’S PERFORMANCE UNDER THE CONTRACT. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG) WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION, VENDOR WILL REIMBURSE TWC AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF TWC DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF VENDOR OR IF TWC IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, TWC WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND VENDOR WILL PAY ALL REASONABLE COSTS OF TWC’S COUNSEL.

2.5.2.1 VENDOR SHALL HAVE NO LIABILITY UNDER THIS SECTION IF THE ALLEGED INFRINGEMENT IS CAUSED IN WHOLE OR IN PART BY: (1) USE OF THE PRODUCT OR SERVICE BY TWC FOR A PURPOSE OR IN A MANNER FOR WHICH THE PRODUCT OR SERVICE WAS NOT DESIGNED OR LICENSED, (2) ANY MODIFICATION MADE BY TWC TO THE PRODUCT WITHOUT VENDOR’S WRITTEN APPROVAL, OR (3) ANY INTELLECTUAL PROPERTY RIGHT OWNED BY OR LICENSED TO TWC.

2.5.2.2 IF VENDOR BECOMES AWARE OF AN ACTUAL OR POTENTIAL CLAIM, OR TWC PROVIDES VENDOR WITH NOTICE OF AN ACTUAL OR POTENTIAL CLAIM, TWC MAY REQUIRE VENDOR, AT VENDOR’S TO (1) PROCURE FOR TWC THE RIGHT TO CONTINUE TO USE THE AFFECTED PORTION OF THE PRODUCT OR SERVICE, (2) MODIFY OR REPLACE THE AFFECTED PORTION OF THE PRODUCT OR SERVICE WITH FUNCTIONALITY EQUIVALENT OR SUPERIOR PRODUCT OR SERVICE SO THAT TWC’S USE IS NON-INFRINGING, OR (3) ACCEPT RETURN OF THE INFRINGING PRODUCT OR TERMINATION OF THE SERVICE AND REFUND ANY AMOUNTS PAID BY TWC WITH RESPECT TO THE INFRINGING PRODUCT OR SERVICE.

2.5.3 TAXES/WORKERS’ COMPENSATION/ UNEMPLOYMENT INSURANCE – INCLUDING INDEMNITY:

2.5.3.1 VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THE CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR’S AND VENDOR’S EMPLOYEES’ TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THE CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS’ COMPENSATION. TWC SHALL NOT BE LIABLE TO VENDOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.

2.5.3.2 VENDOR SHALL INDEMNIFY AND HOLD HARMLESS TWC, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION IN ITS PERFORMANCE UNDER THE CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

Vendor Performance: Pursuant to Texas Government Code §§ 2155.074, 2155.075, 2156.007, 2157.003 and 2157.125, Vendor performance may be used as a factor in the award.

Force Majeure: TWC may grant relief from performance of an awarded contract or PO, or extend a performance period, if the Vendor is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault of the Vendor. If the Vendor requests the relief, the burden of proof for the need of such relief shall rest upon the Vendor, who must file a written request for such release or extension. If TWC grants such relief due to circumstances known by the agency, the agency must document such reasons in the contract file.

Vendor must provide TWC with proof of Force Majeure within ten (10) business days of Vendor’s failure to perform in accordance with the contract or otherwise waive Vendor’s right to a Force Majeure defense.

Dispute Resolution Procedures:

2.8.1 Procurement Disputes: Pursuant to Texas Government Code, §2155.076, TWC has adopted rules for resolving vendor protests relating to the solicitation, evaluation or award of a contract for goods and/or services. See 40 TAC, Chapter 800, subchapter H. Such protests must be made via email to twcvendor@twc.texas.gov and/or mail and received in the Director of Business Operations’ office within ten (10) business days from the date the protestant knew or should have known of the of the occurrence of the action that is protested, but not later than ten (10) business days of the date of the announcement of the award. The protest must be in writing and contain:(1) the identifying name and number of the Solicitation being protested; (2) identification of the specific statute or regulation that the Protestant alleges has been violated; (3) a specific description of each act or omission alleged to have violated the statutory or regulatory provision identified above in (2) above; (4) a precise statement of the relevant facts including: (A) sufficient documentation to establish that the protest has been timely filed; and (B) a description of the resulting adverse impact to the Protestant; (5) a statement of the argument and authorities that the Protestant offers in support of the protest; (6) an explanation of the action the Protestant is requesting from the Agency; (7) a statement confirming that copies of the protest have been mailed or delivered to any other Interested Party known to the Protestant; and (8) the protest must be signed by an authorized representative for the Protestant and the signature notarized. TWC will make available to the protestor all requested documents not exempted from disclosure under Texas and federal law.

TWC will provide copies of these documents upon payment of the fees adopted by TWC for record duplication. The Director will issue the final written decision to the protestor. TWC may move forward with a Solicitation or contract award without delay, in spite of a timely filed protest, to protect the best interests of the Agency or the state.

2.8.2 Contract Disputes: Disputes arising under the contract shall be resolved in accordance with the dispute resolution process provided in Texas Government Code Chapter 2260.

Debt to the State: Vendor agrees that any payments due under the contract will be applied towards any debt including, but not limited to, delinquent taxes and child support that is owed to the State of Texas.

Hold-Over Contract Extension: In the event contract renewal negotiations are not completed prior to the contract expiration date, both parties agree that services shall be provided by the Vendor and accepted by TWC, subject to all original terms and conditions of the contract, for a period not to exceed ninety (90) days following the original contract expiration date. During the hold over extension period, service costs shall be provided at the pro-rated rates, as applicable, in effect immediately prior to expiration of the original contract period and all other terms and conditions shall remain in effect. TWC may terminate such hold over extension period by providing written notice of cancellation not less than ten (10) business days prior to the cancellation date.

Records Retention: Vendor and any subcontractor shall maintain and retain all records relating to contract performance including supporting fiscal documents relevant to showing that any payments under the contract were expended in accordance with the laws and regulations of the State of Texas, including, but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Vendor shall maintain all such documents and other records relating to the contract and the State’s property for a period of seven (7) years after the contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later. If Vendor chooses not to preserve contracting information for the retention period required by this section, Vendor agrees to provide at no cost to TWC all contracting information related to the contract that is in the custody or possession of Vendor or any of its subcontractors.

Agency’s Right to Audit: Vendor and any subcontractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to this contract, including but not limited to work papers, reports, books, records, and supporting documents. Vendor and any subcontractors shall provide TWC with any information that TWC deems relevant to any investigation or audit. Vendor must retain all work and other supporting documents pertaining to this contract, for the purposes of inspecting, monitoring, auditing, or evaluating by TWC. For the purpose of this section, TWC’s right to audit extends to any agency of the Federal government or State of Texas authorized by law or TWC, including an investigation or audit by the State Auditor or the Comptroller General of the United States. (See Section 11 for additional TWC Monitoring terms and conditions.)

State Auditor: Pursuant to Texas Government Code §2262.154, the State Auditor may conduct an audit or investigation of any entity receiving funds from the State directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the 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, an 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.

Vendor and any subcontractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all requested information and materials. Vendor’s failure to comply with this Section shall constitute a material breach of contract and shall authorize TWC and the State of Texas to immediately assess appropriate damages for such failure.

Vendor shall ensure that this provision concerning the State’s authority to audit funds received indirectly by subcontractors through Vendor and the requirement to cooperate is included in any subcontract it awards.

Limitation on TWC's Liability: TWC will not be liable for any incidental, indirect, special, or consequential damages under contract, Tort, (including negligence), or other legal theory. TWC's liability to Vendor under the contract will not exceed the total charges to be paid by TWC to Vendor under the contract.

State Ownership: The Parties agree that TWC will own all right, title and interest in and to the work products including deliverables, source and object code and documentation developed by the Vendor in connection with the contract.

2.15.1 All work products including deliverables, source and object code and documentation, in whole or in part, will be deemed works made for hire of TWC for purposes of copyright law and copyright will belong solely to TWC.

2.15.2 To the extent that any such work product or deliverable does not qualify as a work made for hire under applicable law, and to the extent that the deliverable or work product includes materials subject to copyright, patent, trade secret, or other proprietary right protection, Vendor agrees to assign, and hereby assigns, all right, title, and interest in and to the work products and deliverables, including without limitation all copyrights, inventions, patents, trade secrets, and other proprietary rights therein (including renewals thereof) to TWC.

2.15.3 Vendor will assist TWC or its nominees (including, but not limited to, the State of Texas) to obtain copyrights, trademarks, or patents for all such work products or deliverables in the United States and any other countries. Vendor agrees to execute all papers and to give all facts known to it necessary to secure United States or foreign country copyrights and patents, and to transfer to TWC all the right, title, and interest in and to such work products or deliverables. Vendor agrees to not assert any moral rights under applicable copyright law with regard to such work products and deliverables.

2.15.4 Vendor agrees to reproduce and include TWC's copyright and other proprietary notices and product identifications provided by Vendor on such copies, in whole or in part, or on any form of the work products or deliverables.

License: Pursuant to 2 C.F.R. §200.315, all appropriate State and Federal agencies will have a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, translate or otherwise use, and to authorize others to use for State or Federal purposes all materials, deliverables and work products, including software and modifications thereof, and associated documentation designed, developed, or installed with Federal Financial Participation under the contract, including, but not limited to, those materials covered by copyright, all source and object code, instructions, files, and documentation composing the system.

Governing Law and Venue: The contract shall be governed, construed, and interpreted under the laws of the state of Texas, without regard to the conflicts of law provisions. Vendor agrees that proper venue for a claim arising under the contract shall be brought in a court of competent jurisdiction in Travis County, Texas.

Survival: Expiration or termination of the contract for any reason does not release Vendor from any liability or obligation set forth in the contract that is expressly stated to survive any such expiration or termination, that by its nature would be intended to be applicable following any such expiration or termination, or that is necessary to fulfill the essential purpose of the contract, including without limitation the provisions regarding warranty, indemnification, transition, records, audit, property rights, dispute resolution, invoice, fees verification, confidentiality, and rights and remedies upon termination.

Severability: If any provision of the contract is construed to be illegal or invalid, such provision shall be deemed stricken and deleted to the same extent and effect as if never incorporated into the contract, but all other provisions shall remain in full force and effect.

Block Terrorism: TWC and Vendor must adhere to the directions in the President’s Executive Order (EO) 13224, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism. This Executive Order prohibits any transaction or dealing by United States persons, including, but not limited to, the making or receiving of any contribution of funds, goods, or services to or for the benefit of those persons listed in the General Services Administration’s Excluded Parties List System (EPLS) which may be viewed on the System for Award Management (SAM) site at http://www.Sam.gov

No Waiver: Nothing in the contract shall be construed as a waiver of the TWC’s or the State’s sovereign immunity. The contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the TWC or the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to TWC or the State of Texas under the contract or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. TWC does not waive any privileges, rights, defenses, or immunities available to TWC by entering into the contract or by its conduct prior to or subsequent to entering into the contract.

Redacted Electronic Copy: Pursuant to Texas Government Code § 322.020, no later than two (2) business days after Vendor’s receipt of notice from TWC, the Vendor must deliver to TWC an electronic copy of its complete proposal. Vendor shall deliver this electronic copy to TWC via email in compliance with all of the following requirements:

2.22.1 An email containing a copy of Vendor’s response to solicitation, in searchable Portable Document Format (PDF) format, which has excised, blacked out, or otherwise redacted information from its solicitation response that Vendor reasonably considers to be confidential and exempt from public disclosure under the Texas Public Information Act, Chapter 552 of the Texas Government Code (this should be a de minimis portion, if any, of Vendor’s solicitation response, such as social security numbers). The email shall also contain an Appendix for Vendor’s solicitation response which provides a cross reference for the location of all information redacted by Vendor and a general description of the redacted information. The PDF should be entitled “For Public Release: Redacted Version of [Name of Vendor]’s Proposal and Exhibits. Texas Workforce Commission’s RFP/RFO/IFB solicitation No. _.”

2.22.2 Per Texas Government Code § 322.020, the Texas Legislative Budget Board (LBB) has now implemented a major contracts database. TWC shall upload to the LBB’s contracts database the text of the complete contract (with limited redaction and appendix) no later than thirty (30) days after date of contract award. By submitting a response to this solicitation, Vendors acknowledge that they understand and accept this requirement. See the LBB website at http://www.lbb.state.tx.us/.

Whistleblower Protection: Pursuant to 41 U.S.C. § 4712, Vendors may not discharge, demote, or discriminate against employees for reporting information that employee reasonably believes is evidence of gross mismanagement of a federal grant or contract, gross waste of federal funds, abuse of authority relating to a federal grant or contract, a substantial and specific danger to public health or safety, or a violation of a law, rule, or regulation relating to a federal contract or grant. Employees subject to adverse action in violation of this section may file a complaint with the Office of the Inspector General no later than three years from the date of the adverse action. Vendors must provide written notification of these whistleblower protections to employees performing on covered contracts.

Privacy: Vendor who has access to sensitive personally identifiable information (“Sensitive PII”), including anyone who views contracts, collects, uses, maintains, stores or destroys Sensitive PII of TWC employees, job seekers, employers, customers or partners (including any employees of the State of Texas), must safeguard that information.

2.24.1 Sensitive PII is anything that alone or in combination with available information can identify an individual, which if lost, compromised, or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience or unfairness to an individual.

2.24.2 In order to safeguard Sensitive PII, Awarded Vendor must:

2.24.2.1 Collect Sensitive PII only as authorized.

2.24.2.2 Limit the use of Sensitive PII.

2.24.2.3 Minimize the proliferation of Sensitive PII.

2.24.2.4 Secure Sensitive PII both physically and in electronic form.

2.24.2.5 Report suspected privacy incidents within twenty-four (24) hours to the TWC Contract Manager or, email the TWC Information Security Office at CISO@twc.texas.gov.

2.24.2.6 Not transmit or store Sensitive PII in a server or storage device that is located in a foreign country.

2.24.2.7 Awarded Vendor will not…