ESBD_File_336426_RFP Exhibit C Conflict of Interest.pdf

Exhibit C – Conflict of Interest/Disclosure Statement Certification Regarding Public Nature of the Offer RFP No. 808-23-231609

Exhibit C

Conflict of Interest/Disclosure Statement

Certification Regarding Public Nature of the Offer

RFP #808-23-231608

A. Disclosures. Provide the requested information in the space provided; indicate “N/A” as appropriate.

1. Respondent must disclose any proposed personnel who are current or recent former employees of THC or the State of Texas.

2. Respondent must disclose the following:

a. any existing or potential conflicts of interest or possible issues that might create appearances of impropriety relative to Respondent’s and its proposed subcontractors’ submission of an Offer, possible selection as Successful Respondent, or its performance of the contract.

b. all past and present contractual, business, financial or personal relationships between Respondent and THC and between Respondent’s proposed subcontractors, if any, and

THC.

For each item, Respondent must also provide a detailed explanation of why Respondent does or does not believe such item poses a conflict of interest, potential conflict of interest, or appearance of impropriety issue relative to Respondent’s submission of an Offer, possible selection as the Successful Respondent, or its performance of the contract.

B. Defined Terms. For purposes of the disclosure statements required by this solicitation, the terms below are defined as follows:

1. “past” is defined as within the two (2) calendar years prior to the deadline for submission of offers in response to this solicitation.

2. ”recent former employees” are defined as those THC employees who have terminated agency employment within the two (2) calendar years prior to the deadline for submission of offers in response to this solicitation.

3. “personal relationship” is defined as a current or past connection other than a clearly contractual, business, financial or similar relationship and includes family relationships or other connections outside simply providing a response to this solicitation. For this purpose, “family relationship” means a relationship within the third degree of consanguinity or second degree of affinity; see Chapter 573 of the Texas Government Code, which defines these degrees of consanguinity and affinity. Connections other than such family relationships fall within this definition and must be disclosed if:

a. a reasonable person could expect the connection to diminish Respondent’s independence of judgment or effectiveness in the performance of the Respondent’s responsibilities to THC or the State of Texas under the contract;

b. a reasonable person could expect the connection, within the overall context of Respondent’s submission of an Offer, possible selection as Successful Respondent or its performance of the Contract to create an issue for the agency’s consideration relative to a potential appearance of impropriety or conflict of interest; or

c. the relationship is with a THC or other State of Texas employee with authority to make decisions or recommendations on state contracting or procurement or this solicitation. For purposes of this provision, those persons with authority to make decisions or recommendations are those persons who fall within the definition of “purchasing personnel” in Section 2262.004(a)(2) of the Texas Government Code.

C. Continuing Duty to Disclose. If circumstances change or additional information is obtained subsequent to submission of the Offer, Successful Respondent’s duty to disclose under these provisions continues under the term of the contract and does not end with submission of an Offer or receipt of contract award.

D. Disclosures under these provisions are information that will be evaluated by THC; however, all information provided will not necessarily lead to a restriction or disqualification. Issues will be considered on a case-by-case basis in the best interests of the State of Texas. If Respondent is in doubt about whether information should be disclosed, Respondent should consult with its legal counsel. Failure to disclose any required information under these provisions may be cause for offer disqualification or termination of the contract resulting from this solicitation. THC reserves the right, in its sole discretion, to determine if an issue should result in offer disqualification or termination of the contract.

Signature of Authorized Representative Date Signed

Printed Name & Title of Authorized Representative

Entity Name (“Respondent”)

Section II. Nondisclosure Agreement

In consideration of Texas Historical Commission (“THC”) communicating with the undersigned Respondent regarding a potential contract resulting from the referenced solicitation (e.g., RFP, RFO, ) and because of the sensitivity of certain information provided to Respondent, both parties agree that all information regarding THC or gathered, produced, collected or derived from or related to the potential contract, or provided to Respondent under a resulting contract (“Confidential Information”) must remain confidential subject to release only upon prior written approval of THC, and more specifically agree as follows:

1. The Confidential Information may be used by Respondent only to assist Respondent in connection with the business relationship contemplated in the solicitation or performance of a contract with THC resulting from the solicitation.

2. Respondent shall not, at any time, use the Confidential Information in any fashion, form, or manner except in its capacity as proposed consultant or independent contractor to THC.

3. Unless otherwise provided in the solicitation or resulting contract, Respondent agrees to maintain the confidentiality of all Confidential Information in the same manner that it protects the confidentiality of its own materials of like kind, but in no event less than reasonable care.

Respondent shall take reasonable precautions to protect the Confidential Information including, but not limited to, not disclosing Confidential Information in any manner to any person, firm, or entity, except for authorized employees, agents, or contractors of Respondent with a need to know who are bound by confidentiality obligations at least as stringent as those contained in this agreement prior to any disclosure of such Confidential Information.

4. The Confidential Information may not be copied, reproduced, disclosed, distributed, or otherwise divulged without THC’s prior written approval. Confidential Information and any copies thereof shall be THC’s exclusive property.

5. All Confidential Information made available to Respondent, including copies thereof, must be returned to THC upon the first to occur of (a) expiration or termination of any contract resulting from the solicitation, or (b) request by THC.

6. The foregoing does not prohibit or limit Respondent’s use of the information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies) (a) previously known to it, provided such prior knowledge was not subject to a confidentiality obligation, (b) independently developed by it, (c) acquired by it from a third-party under no obligation of confidentiality to THC, (d) which is or becomes part of the public domain through no breach by Respondent of this nondisclosure agreement or other contractual obligations to THC, or

(e) approved by THC in writing for unrestricted disclosure.

7. If Respondent is required by applicable law, regulation, or legal process to disclose any Confidential Information, then Respondent shall provide THC with prompt notice of any such requirement prior to delivery of the Confidential Information to allow THC a reasonable opportunity to seek a protective order or equivalent.

8. This nondisclosure agreement shall become effective as of the date Confidential Information is first made available to Respondent and shall survive the expiration or termination of any contract resulting from the solicitation and be a continuing requirement.

9. The breach of this nondisclosure agreement by Respondent shall entitle THC to immediately terminate any contract with Respondent resulting from the solicitation upon written notice to Respondent for such breach. The parties acknowledge that the measure of damages in the event of a breach of this nondisclosure agreement may be difficult or impossible to calculate, depending on the nature of the breach. Regardless of whether THC elects to terminate any contract with Respondent resulting from the solicitation upon the breach hereof, THC may require Respondent to pay to THC the sum of $5,000 for each breach as liquidated damages.

This amount is not intended to be in the nature of a penalty but is intended to be a reasonable estimate of the amount of damages to THC in the event of a breach hereof by Respondent of this nondisclosure agreement. THC does not waive any right to seek additional relief, either equitable or otherwise, concerning any breach of this nondisclosure agreement.

10. This nondisclosure agreement is governed by and construed under the laws of the State of Texas. Any and all obligations of this agreement are due in Travis County, Texas and venue is proper in only such county.

Printed Name & Title of Authorized Representative

Entity Name (“Respondent”)

Section III. Certification Regarding Public Nature of the Offer

The Legislative Budget Board (LBB) has established a database of state agency contracts pursuant to Section 322.020 of the Texas Government Code. See the LBB website at www.lbb.state.tx.us.

Following the contract award resulting from this solicitation, THC plans to upload to the LBB contracts database the complete contract, except for information that is not subject to disclosure under Chapter 552 of the Texas Government Code. Information that is not subject to disclosure under Chapter 552 of the Texas Government Code must be referenced in an appendix that generally describes the information without disclosing the specific content of the information. In submitting an Offer in response to this solicitation, Respondent acknowledges that it understands and accepts this requirement.

Respondent must initial below EITHER Item 1 or Item 2, as appropriate. DO NOT INITIAL

BOTH ITEMS.

By signature hereon, Respondent certifies the following:

1. ______________ Respondent does not assert that any portion of its Offer is confidential; or

2. ______________ Respondent has stamped in bold red letters the term “CONFIDENTIAL” on the specific part or page of the Offer considered to be confidential by Respondent. In the table below or as an attachment to this form submitted with the Offer, Respondent has identified by page number(s) the location of all information in the Offer asserted to be confidential by Respondent as well as provided an explanation, including any relevant legal authority, for why Respondent reasonably considers the identified portion(s) of its Offer to be confidential and exempt from public disclosure under the Texas Public Information Act, Chapter 552 of the Texas Government Code.

Page No.

of Offer

General description of the designated information

Explanation, including relevant legal authority, in support of the confidential treatment of the designated portion(s) of the Offer.

Printed Name & Title of Authorized Representative Entity Name (“Respondent”)

NOTE: THIS EXHIBIT MUST BE COMPLETED & RETURNED WITH THE SUBMITTAL

http://www.lbb.state.tx.us/