ESBD_File_320308_Addendum 1 Enrollment Packet.docx

Texas Workforce Commission (TWC)

Procurement # 3202300176 Procurement Name: Open Enrollment for Durable Medical Equipment Note: Open the hyperlinks below by holding down the CTRL key while clicking on the hyperlink. Clicking the hyperlink will not open the form directly, rather it will initiate a download of the form(s), i.e. Word or PDF. Once downloaded, you can enter the necessary information.

I. GENERAL INFORMATION

A. Contract Subject: Durable Medical Equipment B. Posting This is an Open Enrollment notice for Durable Medical Equipment 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 Durable Medical Equipment for customers in TWC VR Workforce Solutions offices in all areas of the state. Applicants must meet all requirements and specifications outlined herein to be eligible to receive a contract to provide Durable Medical Equipment.

C. TWC Point of Contacts

· For procurement questions related to:

· Solicitation:

· Section I GENERAL INFORMATION,

· Section III PROVIDER ENROLLMENT PACKET SUBMITTAL, or

· Other purchasing related inquires.

Contact one of the following:

a. Rebecca Stone, CTCD rebecca.stone@twc.texas.gov

b. consumer.procurement@TWC.texas.gov

· Contact the VR Standards mailbox at: vr.standards@twc.texas.gov for questions related to:

· Solicitation:

· Section II SCOPE OF WORK,

· Section III PROVIDER ENROLLMENT PACKET, or

· VR-SFP Manual, such as:

· requirements outlined in Chapter 8: Durable Medical Equipment (DME), or

· requirements outlined in the VR-SFP Chapter 3: Basic Standards .

Note: If you prefer to speak with someone, a phone meeting can be scheduled when requested via vr.standards@twc.texas.gov.

D. Definitions

h. PII, as defined by 2 CFR 200.1;

i. Information deemed confidential under The Rehabilitation Act of 1973, 29 U.S.C. Chapter 16, as amended, and implementing regulations 34 C.F.R. Parts 361 through 396.

E. Open Enrollment Period

a. Start Date: March 27, 2023

b. End Date: December 29, 2023, 3:00 P.M. CT F. Certifications By signing and submitting the Execution of Offer form with the Provider Enrollment Packet, Applicant attests to its compliance with the Certifications provided in Section 3 of the TWC-VR Standard Terms & Conditions.

G. Contract Award TWC intends to award contracts to qualified Applicants throughout the enrollment period and may award multiple contracts within individual counties or groups of counties.

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

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

H. Compensation Contractors must comply with the following sections defined in the VR-SFP Chapter 8: Durable Medical Equipment (DME) for the goods and/or services being delivered: DME Contractor Qualifications, Description of DME, DME Maintenance and Warranty, DME Methodology for Payment, and DME Outcomes required for Payment.

Payments made to Contractors based on VR-SFP Chapter 8, section 8.6 DME Methodology for Payment when all requirements have been achieved.

· Within 30 days of receipt of a properly submitted invoice and requested documentation, TWC will pay the Contractor the TWC Price for the DME requested in the SA less Third-Party Payment made or due to Contractor as indicated in an Explanation of Benefits or similar document showing Third-Party Payment breakdown.

The contractor must not hold the TWC-VR customer liable for any fees and charges related to the DME. TWC-VRD will pay the Customer Co-pay in the payment process as described above.

Contractors must also be in compliance with VR-SFP Manual Chapter 3: Basic Standards.

Contractors must comply with requirements provided in their executed contract, including sections discussing Payment Rates and Terms as well as Contractor Obligations.

I. TWC Standard Terms and Conditions Contracts resulting from this solicitation will include the TWC-VR Standard Terms & Conditions in effect at the time of execution. The current TWC-VR Standard Terms & Conditions are embedded below for your review. The current TWC-VR Standard Terms & Conditions may be different from the TWC-VR Standard Terms & Conditions in effect at the time of execution.

II. SCOPE OF WORK

A. Provider Requirements, Responsibilities, and TWC Policies Providers must be knowledgeable about their responsibilities, the service requirements and TWC policies applicable to them.

Standards for Providers Providers under contract with TWC must adhere to current published VR-SFP Manual for the dates of services during which any services or goods are provided to a Customer.

Notice of upcoming changes to the VR-SFP Manual are published on the Vocational Rehabilitation Providers’ Resources page at least thirty (30) days in advance of the effective date of the changes. Each Provider is contractually responsible for maintaining compliance with the most recent VR-SFP Manual.

A revision list that summarizes any formal changes to the VR-SFP Manual can be found on the Vocational Rehabilitation Standards for Providers Revision Log.

TWC GovDelivery list notifies Contractors and Providers every time revisions are posted to the VR-SFP Manual and other important information. All Contractors should subscribe to TWC GovDelivery to gain these notifications. Visit the TWC GovDelivery website, enter an email address, and select the topic ‘Vocational Rehabilitation Contractors and Providers News’ to subscribe.

Questions related to the content found in the VR-SFP Manual can be sent to vr.standards@twc.texas.gov.

Required Insurance Insurance can provide protection to contractors from claims of negligence made by Customers.

Contractors must maintain any insurance prescribed in Chapter 3: Basic Standards and Chapter 8: Durable Medical Equipment (DME), if applicable. The requirements are subject to change after proposed changes have been posted at least 30 days on the Vocational Rehabilitation Providers’ Resources page.

Warranty and Maintenance Information about warranty minimum requirements can be found in Chapter 8: Durable Medical Equipment (DME). Requirements are subject to change after proposed changes have been posted at least 30 days on the Vocational Rehabilitation Providers’ Resources page. Contractors may provide warranty and maintenance above the required minimum. Please provide copies of warranty and maintenance policies for TWC-VRD review.

1. Durable Medical Equipment Scope of Work Durable Medical Equipment includes:

· Manual Wheelchairs,

· Power Wheelchairs,

· Seating and Positioning Systems,

· Scooters,

· Rehabilitation or Hospital Beds,

· Bathroom Assistive Devices,

· Manual Patient Lifts,

· Powered Patient Lifts,

· Continuous Positive Airway Pressure (CPAP) machines, and

· Bilevel Positive Airway Pressure (BiPAP) machines.

Guidelines for Durable Medical Equipment Contractors are outlined and can be found in Chapter 8: Durable Medical Equipment (DME).

All Applicants must include:

· The business’ policy related scheduling service of equipment within 3 calendar days of being notified by the TWC-VR or customer; and

· MSRP documentation on offered equipment.

· Contractors must provide TWC-VR a price list showing the then-current MSRP rates (Price List). Contractor must provide an updated Price List to TWC-VRD any time there is a change to the Price List. TWC-VRD shall utilize the Price List in effect at the time the SA is issued. TWC will not retrospectively apply updated prices to SAs issued prior to Contractor providing the updated Price List.

INSURANCE

An Applicant applying for a contract must comply with the following VR-SFP Manual chapters as well.

· Chapter 1: Introduction to Vocational Rehabilitation

· Chapter 2: Obtaining a Contract for Goods and Services

· Chapter 3: Basic Standards All Applicants must designate a point of contact who is the primary contact after a contract is awarded. For information of their responsibilities refer to VR-SFP Manual, Chapter 3 Basic Standards, section 3.5.3 Point of Contact.

1. Service Areas This is a statewide open enrollment solicitation. All Texas counties are included in this solicitation.

III. PROVIDER ENROLLMENT PACKET SUBMITTAL

1. Completed Enrollment Packets 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 months or more to be finalized, depending upon volume and workload.

Submittal of Enrollment Packets must be made via email transmission to: consumer.procurement@twc.texas.gov.

TWC is not responsible for applications sent to an address other than that stated above, an application submitted after the closing date, illegible, incomplete, corrupted, or otherwise considered disqualified due to failure of electronic equipment or operator error.

Disqualification of an application can occur when an Applicant fails to:

· submit an application in accordance with the requirements of the solicitation; or

· submit requested corrections or additional documentation within 14 days or other specified timeframe.

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.

No mailed or hand delivered application will be accepted.

If you do not have encryption software, email the procurement TWC Point of Contact listed in Section I. C. 1. TWC Point of Contact 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.

Email Subject Line shall read:

Durable Medical Equipment OE Application, Procurement # 3202300176

Enrollment Packet Contents and Organization (Attachments):

Attached documentation shall include all required information delineated in Section III. C Provider Enrollment Packet Submittal 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 III. C Provider Enrollment Packet Submittal.

ALL emailed attachments MUST BE SCANNED IN PDF FORMAT FOLLOWING THE DIRECTIONS in Section III. C Provider Enrollment Packet Submittal.

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

Complete the Execution of Offer form.

Naming Convention for submission:

T1_Applicant’s Legal Name_Execution of Offer

TAB 2: W-9 and Direct Deposit Form (VR1020) Alternative W-9 forms will not be accepted.

Complete the VR1020, W-9 and Direct Deposit Form.

· Refer to the VR1020 instructions and to TWC Substitute W-9 and Direct Deposit Form video for guidance.

· If the TWC1020 shows a “Business Name” (DBA) designation in Box 2, include a copy of County DBA registry letter.

· If the TWC1020 uses an “EIN” in box 6, include a copy of IRS letter assigning Employer Identification Number.

Naming Convention for submission:

T2_Applicant’s Legal Name_W-9

TAB 3: Child Support Certification Complete the VR1305, Child Support Certification form.

Refer to the VR1305 instructions for additional guidance.

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.

Must be signed by the entity’s legal authorized representative.

Naming Convention for submission:

T3_ Applicant’s Legal Name_VR1305

TAB 4: Form VR3443, TWC VR Standards for Provider Certification Complete VR3443, TWC VR Standards for Provider Certification form.

Must be signed by the entity’s legal authorized representative.

Naming Convention for submission:

T4_ Applicant’s Legal Name_VR3443 TAB 5: Form VR3444, Conflict of Interest Certification Complete the VR3444, Conflict of Interest Certification form.

Must be signed by the entity’s legal authorized representative.

Naming Convention for email submittals:

T5_Applicant’s Legal Name_VR3444

TAB 6: Form VR3445, Provider Insurance Certification

Complete the form VR3445, Provider Insurance Certification.

A certificate of insurance (ACORD) or other equivalent form containing the same information detailing coverage as described above and signed by the agent shall serve as proof of coverage and shall be submitted with the VR3445 to TWC. The certificate shall include a statement that products and completed operations liability coverage is included in the policy. Addendums, changes, and updates of renewal date on these insurance policies shall be sent to TWC as soon as possible after implementation.

Must be signed by the Parent Company’s legal authorized representative.

Refer to Section II C. Required Insurance for additional information.

Naming Convention for email submittals:

T6_Applicant’s Legal Name_VR3445

TAB 7: VR3440A Goods and Equipment Part A- Parent Company Information Complete the form VR3440A, Goods and Equipment Part A- Parent Company Information.

Parent company is the business that is requesting or has been granted the bilateral contract with TWC to provide services on behalf of VR customers Must be signed by the Parent Company’s legal authorized representative.

Naming Convention for submission:

T7_ Applicant’s Legal Name_VR3440A TAB 8: Form VR3440B, Good and Equipment Part B-Local Business Location Information Complete the form VR3440B, Good and Equipment Part B-Local Business Location Information.

Local Business provides goods and equipment to TWC-VR customers as:

· a business that is part of the Parent Company or

· a Parent Company that only operates one location which provides goods and equipment to TWC-VR customers Make sure to attach supporting documentation including copies of staff licenses, certifications and resumes with description of experience.

Naming Convention for submission:

T8_ Applicant’s Legal Name_VR3440B TAB 9: Form VR3439, Durable Medical Equipment Certification Complete the form VR3439, Durable Medical Equipment Certification.

Must be signed by the Parent Company’s legal authorized representative.

Naming Convention for submission:

T9_ Applicant’s Legal Name_VR3439 TAB 10: Supporting Documents- Business’ Policy Attach a copy of the business’ policy related scheduling service of equipment.

Naming Convention for submission:

T10_ Applicant’s Legal Name - Business’ Policy TAB 11: Supporting Documents- MSRP documentation Attach a copy of the business MSRP documentation on offered equipment.

Naming Convention for submission:

T11_ Applicant’s Legal Name_ MSRP documentation TAB 12: Supporting Documents- Staff Documentation Attach a copy of each staff licenses, certifications, and resumes as applicable.

Naming Convention for submission:

T12_ Applicant’s Legal Name_Staff documentation_Staff Last Name Open Enrollment for Durable Medical Equipment Page 2 of 2 image1.emf

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 transmit Sensitive PII via email or store on CDs, DVDs, thumb drives and the like without prior review and encryption protocol approved by TWC.

2.24.2.8 Failure to follow these requirements will constitute a breach of contract.

Change in Law: Any alterations, additions, or deletions to the terms of the contract which are required by changes in federal or state law or regulations are automatically incorporated into the contract without written amendment, and shall become effective on the date designated by such law or by regulation.

Davis-Bacon Act: Vendors on all prime construction contracts in excess of $2,000 must comply with the Davis-Bacon Act (40 U.S.C. §§3141-3148) as supplemented by the Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction.”)

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