ESBD_File_328856_Attachment A Terms and Conditions.docx

TERMS AND CONDITIONS

ATTACHMENT A

TEXAS STATE BOARD OF PHARMACY

STANDARD TERMS AND CONDITIONS:

ITEMS BELOW APPLY TO AND BECOME PART OF RESPONSE.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

1. RESPONDING REQUIREMENTS:

Respondents must comply with all rules, regulations and statutes relating to purchasing in the State of Texas in addition to the requirements of this form.

1.1. Responses should be submitted on this form. Respondents must price per unit shown. Unit prices shall govern in the event of extension errors. If a price quotation is submitted as part of the response, the quotation must be referenced on the response document and signed by the respondent to establish formal linkage to the response.

1.2. Responses must be time stamped at Texas State Board of Pharmacy (TSBP) on or before the hour and date specified for the response opening.

1.3. Late and/or unsigned responses will not be considered under any circumstances. Person signing response must have the authority to bind the firm in a contract.

1.4. Quote FOB destination, freight prepaid and allowed unless otherwise stated within the specifications.

1.5. Response prices are requested to be firm for TSBP acceptance for 30 days from response opening date. "Discount from list" responses are not acceptable unless requested. Cash discounts are not considered in determining an award. Cash discounts offered will be taken if earned.

1.6. Respondent should enter Texas Identification Number System (TINS) number, full firm name and address of respondent on the face of this form. Enter in the space provided, if not shown. Additionally, firm name should appear on each continuation page of a response, in the block provided in the upper right hand corner.

1.7. Response cannot be altered or amended after opening time. Alterations made before opening time should be initialed by respondent or his authorized agent. No response can be withdrawn after opening time without approval by the TSBP based on an acceptable written reason.

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

2. AWARD NOTICE:

The State reserves the right to make an award on the basis of low line item response, low total of line items, or in any other combination that will serve the best interest of the State and to reject any and all response items at the sole discretion of the State. The State also reserves the right to accept or reject all or any part of any response, waive minor technicalities and award the response to best serve the interests of the State. Any contract may also be extended up to three months at the sole discretion of the State.

2.1. Consistent and continued tie responding could cause rejection of responses by the TSBP and/or investigation for antitrust violations.

2.2. The State shall not be responsible for failure of electronic equipment or operator error. Late, illegible, incomplete, or otherwise non-responsive responses will not be considered.

2.3. Inquiries pertaining to this Request for Proposal (RFP) must include the requisition number, class/item codes, and opening date.

3. SPECIFICATION:

Catalogs, brand names or manufacturer's references are descriptive only, and indicate type and quality desired. Responses on brands of like nature and quality will be considered unless advertised under §2155.067, Texas Government Code (Gov't Code). If responding on other than references, response should show manufacturer, brand or trade name, and other description of product offered. If other than brand(s) specified is offered, illustrations and complete description of product offered are requested to be made part of the response. Failure to take exception to specifications or reference data will require respondent to furnish specified brand names, numbers, etc.

3.1. Unless otherwise specified, items shall be new and unused and of current production.

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

3.3. Samples, when requested, must be furnished free of expense to the State. If not destroyed in examination, they will be returned to the respondent, on request, at respondent's expense. Each sample should be marked with respondent's name and address, and requisition number. Do not enclose in or attach response to sample.

3.4. The State will not be bound by any oral statement or representation contrary to the written specifications of this RFP.

3.5. Manufacturer's standard warranty shall apply unless otherwise stated in the RFP.

4. TIE RESPONSES:

Awards will be made in accordance with 34 TAC Rules 20.306(b)(3) and 20.38 (Preferences).

5. DELIVERY:

Show number of days required to place material in receiving agency's designated location under normal conditions. Delivery days mean calendar days, unless otherwise specified. Failure to state delivery time obligates respondent to deliver in 14 calendar days. Unrealistic delivery promises may cause response to be disregarded.

5.1. If delay is foreseen, respondent shall give written notice to the TSBP and the ordering agency. Respondent must keep the TSBP advised at all times of status of order.

5.2. Default in promised delivery (without accepted reasons) or failure to meet specifications authorizes the TSBP to purchase the goods or services of this RFP elsewhere and charge any increased costs for the goods or services, including the cost of re-responding, to the respondent.

5.3. No substitutions permitted without written approval of TSBP.

5.4. Delivery shall be made during normal working hours only, unless prior approval has been obtained from ordering agency.

6. INSPECTION AND TESTS:

All goods will be subject to inspection and test by the State. Authorized TSBP personnel shall have access to supplier's place of business for the purpose of inspecting merchandise. Tests shall be performed on samples submitted with the response or on samples taken from regular shipment. All costs shall be borne by the respondent in the event products tested fail to meet or exceed all conditions and requirements of the specification. Goods delivered and rejected in whole or in part may, at the State's option, be returned to the respondent or held for disposition at respondent's expense. Latent defects may result in revocation of acceptance.

7. AWARD OF CONTRACT:

A response to this RFP is an offer to contract based upon the terms, conditions, and specifications contained herein. Responses do not become contracts until they are accepted through an open market purchase order. The contract shall be governed, construed, and interpreted under the laws of the State of Texas. The factors listed in §§2155.074, 2155.144, 2156.007, and 2157.003, Gov't Code, shall also be considered in making an award when specified. Any legal actions must be filed in Travis County, Texas.

8. PAYMENT:

Respondent shall submit 2 copies of an itemized invoice showing State order number and agency requisition number on all copies. The State will incur no penalty for late payment if payment is made in 30 or fewer days from receipt of goods or services and an uncontested invoice. Payment shall be made in accordance with Chapter 2251, Gov't Code.

9. PATENTS, TRADEMARKS, OR COPYRIGHTS:

Respondent agrees to defend and indemnify the TSBP and State from claims involving infringement or violation of patents, trademarks, copyrights, trade secrets, or other proprietary rights, arising out of the TSBP's or the State's use of any good or service provided by the respondent as a result of this RFP.

10. RESPONDENT ASSIGNMENTS:

Respondent hereby assigns to the TSBP any and all claims for overcharges associated with this contract arising under the antitrust laws of the United States 15 U.S.C.A. §1, et seq., and the antitrust laws of the State of Texas, Tex. Bus. & Comm. Code §15.01, et seq.

11. RESPONDENT AFFIRMATIONS:

Respondent represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response 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 Response and any resulting contract. By signature hereon affixed, the respondent hereby certifies that:

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

11.2. Pursuant to 15 U.S.C. §1, et seq. and Tex. Bus. & Comm. Code §15.01, et seq. neither the respondent nor the firm, corporation, partnership, or institution represented by the respondent, or anyone acting for such a firm, corporation or institution has violated the antitrust laws of this state, federal antitrust laws, nor communicated directly or indirectly the response made to any competitor or any other person engaged in such line of business.

11.3. Pursuant to §2155.004, Gov't Code, neither the respondent nor any person or entity which will participate financially in any contract resulting from this RFP has received compensation for participation in the preparation of the specifications for this RFP.

11.4. Pursuant to §231.006(d), Texas Family Code, regarding child support, the respondent certifies that the individual or business entity named in this response is not ineligible to receive the specified payment and acknowledges that the contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, any respondent subject to §231.006, Gov't Code, must include names and Social Security numbers of each person with at least 25% ownership of the business entity submitting the response. This information must be provided prior to award. Enter the Name & Social Security Numbers for each person below:

11.5. FEDERAL PRIVACY ACT NOTICE: This notice is given pursuant to the Federal Privacy Act. Disclosure of your Social Security Number (SSN) is required under Section 231.006(c) and Section 231.302(c)(2) of the Texas Family Code. The SSN will be used to identify persons that may owe child support. The SSN will be kept confidential to the fullest extent allowed under Section 231.302(e), Texas Family Code.

11.6. Under §2155.004, Gov't Code, the respondent certifies that the individual or business entity named in this response or any contract resulting from this RFP is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate. §2155.004 prohibits a person or entity from receiving a state contract if they received compensation for participating in preparing the solicitation or specifications for the contract.

11.7. As required by §2252.903, Gov't Code, respondent agrees that any payments due under a contract resulting from this RFP shall be directly applied towards eliminating any debt or delinquency including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support, until the debt is paid in full. Respondent shall comply with rules adopted by TSBP under §§403.055, 403.0551, 2252.903, Gov't Code and other applicable laws and regulations regarding satisfaction of debts or delinquencies to the State of Texas.

11.8. Pursuant to §669.003, Gov't Code, TSBP may not enter into a contract with a person who employs a current or former executive head of the TSBP until four years has passed since that person was the executive head of the TSBP. By submitting a response, the respondent certifies that it does not employ any person who was the executive head of the TSBP in the past four years. If respondent does employ a person who was the executive head of the TSBP, provide the following information:

Name of Former Executive:

Name of State Agency:

Date of Separation from State Agency:

Position with Respondent:

Date of Employment with Respondent:

11.9. In accordance with §2155.4441, Gov't Code, respondent agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

11.10. Respondent certifies that the responding entity and its principals are eligible to participate in this transaction and have not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state or local governmental entity and that respondent is in compliance with the State of Texas statutes and rules relating to procurement and that respondent is not listed on the federal government's terrorism watch list as described in Executive Order 13224. Entities ineligible for federal procurement are listed at http://www.sam.gov.

11.11. Sections 2155.006 and 2261.053, Gov't Code, prohibit state agencies from awarding contracts to any person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by §418.004, Gov't Code, occurring after September 24, 2005. Under §2155.006, Gov't Code, respondent certifies that the individual or business entity named in its response is not ineligible to receive a contract and acknowledges that any contract resulting from this RFP may be terminated and payment withheld if this certification is inaccurate.

11.12. Respondent represents and warrants that payment to the respondent and the respondent’s receipt of appropriated or other funds under any contract resulting from this RFP are not prohibited by §556.005 or §556.008, Gov't Code, relating to the prohibition of using state funds for lobbying activities.

11.13. Respondent represents and warrants that it has no actual or potential conflicts of interest in providing the requested items to TSBP under the RFP and any resulting contract, if any, and that respondent’s provision of the requested items under the RFP and any resulting contract, if any, would not reasonably create an appearance of impropriety.

12. NOTE TO RESPONDENT:

If respondent takes any exceptions to any provisions of the RFP, these exceptions must be specifically and clearly identified by section in respondent’s response to the RFP and respondent’s proposed alternative must also be provided in the response. Respondents cannot take a ‘blanket exception’ to the entire RFP. If any respondent takes a ‘blanket exception’ to the entire RFP or does not provide proposed alternative language, the respondent’s response may be disqualified from further consideration. Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

13. PROTEST PROCEDURES:

Any actual or prospective respondent who is aggrieved in connection with this RFP, evaluation, or award of any contract resulting from this RFP may formally protest as provided in the Comptroller of Public Accounts’ rules at 34 TAC Rule 20.384.

14. DISPUTE RESOLUTION:

The dispute resolution process provided for in Chapter 2260 of the Texas Government Code must be used by TSBP and Respondent to attempt to resolve all disputes arising under this Contract. The parties may agree to mediation of their dispute at any time. However, if all issues in dispute are not completely resolved through direct negotiations between the parties within 180 days after the agency receives Contractor’s notice of claim, then the parties must submit the dispute to mediation before a mutually acceptable mediator in Travis County, Texas. The Contractor shall pay all costs of the mediation unless the TSBP, in its sole good faith discretion, approves its payment of all or part of such costs. The mediation must be completed on or before 270 days after the agency receives Contractor’s notice of claim. Completion of the mediation is a condition precedent to the filing of a contested case hearing under Chapter 2260. The agency’s participation in mediation or any other dispute resolution process shall not waive any of the agency’s contractual or legal rights and remedies, including but not limited to sovereign immunity.

15. STATE OF TEXAS LAWS:

In the conduct of the Project, Respondent shall be subject to Texas State Board of Pharmacy rules pertaining to this Contract and the Project, and to the laws of the State of Texas governing this Contract and the Project.

16. NON-APPROPRIATION OF FUNDS:

Any contract resulting from this RFP is subject to termination or cancellation, without penalty to TSBP, either in whole or in part, subject to the availability of state funds. TSBP is a state agency whose authority and appropriations are subject to actions of the Texas Legislature. If TSBP becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds which would render TSBP’s or respondent’s delivery or performance under the contract impossible or unnecessary, the contract will be terminated or cancelled and be deemed null and void. In the event of a termination or cancellation under this Section, TSBP will not be liable to respondent for any damages, which are caused or associated with such termination, or cancellation and TSBP will not be required to give prior notice.

17. TEXAS PUBLIC INFORMATION ACT:

Notwithstanding any provisions of this RFP to the contrary, respondent understands that TSBP will comply with the Texas Public Information Act (Chapter 552, Gov't Code) as interpreted by judicial opinions and opinions of the Attorney General of the State of Texas. Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to the Texas Public Information Act. Within three (3) days of receipt, respondent will refer to TSBP any third party requests, received directly by respondent, for information to which respondent has access as a result of or in the course of performance under any contract resulting from this RFP. Any part of the solicitation response that is of a confidential or proprietary nature must be clearly and prominently marked as such by the respondent.

18. CONFLICT OF INTEREST:

Under §2155.003, Gov't Code, a TSBP employee may not have an interest in, or in any manner be connected with a contract or response for a purchase of goods or services by an agency of the state; or in any manner, including by rebate or gift, accept or receive from a person to whom a contract may be awarded, directly or indirectly, anything of value or a promise, obligation, or contract for future reward or compensation. Any individual who interacts with public purchasers in any capacity is required to adhere to the guidelines established in Section 1.2 of the State of Texas Procurement Manual, which outlines the ethical standards required of public purchasers, employees, and respondents who interact with public purchasers in the conduct of state business, and with any opinions of or rules adopted by the Texas Ethics Commission. Entities who are interested in seeking business opportunities with the State must be mindful of these restrictions when interacting with public purchasers of TSBP or purchasers of other state agencies.

19. FORCE MAJEURE:

Neither respondent nor TSBP shall be liable to the other for any delay in, or failure of performance, of any requirement included in any contract resulting from this RFP caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are generally recognized under Texas law as constituting impossible conditions.. Each party must inform the other in writing, with proof of receipt, within three (3) business days of the existence of such force majeure, or otherwise waive this right as a defense.

20. INDEPENDENT CONTRACTOR:

Respondent is and shall remain an independent contractor in relationship to the TSBP. The TSBP shall not be responsible for withholding taxes from payments made under any contract resulting from this RFP. Respondent shall have no claim against the TSBP for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.

21. INDEMNIFICATION:

RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE STATE OF TEXAS, ITS OFFICERS, AND EMPLOYEES, AND TSBP, ITS OFFICERS, AND EMPLOYEES AND CONTRACTORS, FROM AND AGAINST ALL CLAIMS, ACTIONS, SUITS, DEMANDS, PROCEEDINGS, COSTS, DAMAGES, AND LIABILITIES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES AND COURT COSTS, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY ACTS OR OMISSIONS OF RESPONDENT OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF RESPONDENT IN THE EXECUTION OR PERFORMANCE OF ANY CONTRACT WITH RESPONDENT RESULTING FROM THIS RFP. RESPONDENT SHALL COORDINATE ITS DEFENSE WITH THE TEXAS STATE BOARD OF PHARMACY AS REQUESTED BY TSBP. THIS SECTION IS NOT INTENDED TO AND SHALL NOT BE CONSTRUED TO REQUIRE RESPONDENT TO INDEMNIFY OR HOLD HARMLESS THE STATE OR TSBP FOR ANY CLAIMS OR LIABILITIES RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF TSBP OR ITS EMPLOYEES.

22. RIGHT TO AUDIT:

In addition to and without limitation on the other audit provisions of this RFP, pursuant to §2262.003, Texas Government Code, the state auditor may conduct an audit or investigation of the respondent or any other entity or person receiving funds from the state directly under this contract or indirectly through a subcontract under this contract. The acceptance of funds by the respondent or any other entity or person directly under this contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, the respondent or other entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. This RFP or any contract resulting from this RFP may be amended unilaterally by TSBP to comply with any rules and procedures of the state auditor in the implementation and enforcement of §2262.003, Texas Government Code. Respondent will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through the respondent and the requirement to cooperate is included in any subcontract it awards.

23. TERMINATION:

23.1. Convenience of the State of Texas

The TSBP reserves the right to terminate the Contract at any time, in whole or in part, without penalty, by providing 30 calendar days' advance written notice, if the TSBP determines that such termination is in the best interest of the state.

In the event of such a termination, the Respondent shall, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. Customers shall be liable for payments for any goods or services ordered from the Respondent before the termination date.

23.2. Cause/Default

If the Respondent fails to provide the goods or services contracted for according to the provisions of the Contract, or fails to comply with any of the terms or conditions of the Contract, the TSBP may, upon written notice of default to the Respondent, immediately terminate all or any part of the Contract. Termination is not an exclusive remedy, but will be in addition to any other rights and remedies provided in equity, by law or under the Contract.

The TSBP may exercise any other right, remedy or privilege which may be available to it under applicable law of the state and any other applicable law or may proceed by appropriate court action to enforce the provisions of the Contract, or to recover damages for the breach of any agreement being derived from the Contract. The exercise of any of the foregoing remedies will not constitute a termination of the Contract unless the TSBP notifies the Respondent in writing prior to the exercise of such remedy.

The Respondent shall remain liable for all covenants and indemnities under the Contract. The Respondent shall be liable for all costs and expenses, including court costs, incurred by the TSBP with respect to the enforcement of any of the remedies listed herein.

23.3. Change in Federal or State Requirements

If federal or state laws or regulations or other federal or state requirements are amended or judicially interpreted so that either the TSBP or the Respondent cannot reasonably fulfill the Contract and if the Parties cannot agree to an amendment that would enable substantial continuation of the Contract, the Parties shall be discharged from any further obligations under the Contract.

24. BACKGROUND CHECKS:

Pursuant to Texas Government Code Sections 411.127-1271, the TSBP may elect to obtain criminal history information from the Texas Department of Public Safety, the Federal Bureau of Investigation, or another law enforcement agency about any person or employee of an entity that proposes to enter into a contract, or who has entered a contract, to supply goods and services to the agency. This authorization includes subcontractors and their employees. If requested, the vendor shall provide identifying data necessary to facilitate the performance of initial and periodic criminal background checks on its employees and the employees of any subcontractor. In its sole discretion, the TSBP may reject the assignment or restrict the access of personnel on the basis of reported criminal history, and is prohibited by law from disclosing the results of any criminal background check to the vendor.

25. DRUG-FREE WORKPLACE POLICY:

The contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued.

26. PUBLIC DISCLOSURE:

No public disclosures or news releases pertaining to this contract shall be made without prior written approval of the Texas State Board of Pharmacy.

27. NOTICE:

Any written notices required under this Contract will be by either hand delivery to Contractor’s office address specified on Page 1 of this Contract or by U.S. Mail, certified, return receipt requested, to the Texas State Board of Pharmacy, 1801 Congress Ave., Ste. 13.100, Austin, TX 78701. Notice will be effective on receipt by the affected party. Either party may change the designated notice address in this Section by written notification to the other party.

28. ASSIGNMENT:

Without the prior written consent of TSBP Contractor may not assign this Contract, in whole or in part, and may not assign any right or duty required under it.

29. COVID-19 Vaccine Passport Prohibition Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the respondent’s business. Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

30. Excluded Parties Respondent certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

31. Firearm Entities and Trade Associations Discrimination If Respondent is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Respondent verifies that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. If Respondent does not make that verification, Respondent must so indicate in its Response and state why the verification is not required.