ESBD_File_352938_IFB 3202400154.doc

Texas Workforce Commission

INVITATION FOR BIDS (IFB)

VENDOR TEXAS IDENTIFICATION NUMBER:

(issued by the Texas Comptroller of Public Accounts)

VENDOR FEDERAL EMPLOYER IDENTIFICATION NUMBER:

(issued by the Internal Revenue Service)

Check below to claim a preference under 34 TAC Rule 20.38:

FORMCHECKBOX

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

FORMCHECKBOX

Goods produced in Texas or offered by a Texas bidder that is not owned by a Texas resident service-disabled veteran.

FORMCHECKBOX

Agricultural products grown in Texas

FORMCHECKBOX

Agricultural products offered by a Texas bidder

FORMCHECKBOX

Services offered by a Texas bidder that is owned by a Texas resident service-disabled veteran.

FORMCHECKBOX

Services offered by a Texas bidder that is not owned by a Texas resident service-disabled veteran.

FORMCHECKBOX

Texas Vegetation Native to the Region

FORMCHECKBOX

USA produced supplies, materials or equipment

FORMCHECKBOX

Products of persons with mental or physical disabilities

FORMCHECKBOX

Products made of recycled, remanufactured, or environmentally sensitive materials including recycled steel

FORMCHECKBOX

Energy Efficient Products

FORMCHECKBOX

Rubberized asphalt paving material

FORMCHECKBOX

Recycled motor oil and lubricants

FORMCHECKBOX

Products produced at facilities located on formerly contaminated property

FORMCHECKBOX

Products and services from economically depressed or blighted areas

FORMCHECKBOX

Vendors that meet or exceed air quality standards

FORMCHECKBOX

Recycled or Reused Computer Equipment of Other Manufacturers

FORMCHECKBOX

Foods of Higher Nutritional Value

To Include:

· Instrument Training

· Commercial Training

· CFI Training

· Pilot in Command Training Brand/model # bidding _______________________ Delivery after receipt of order (ARO) ___________ days

Total

FAILURE TO SIGN WILL DISQUALIFY BID - SIGNATURE MUST BE IN INK

INTRODUCTION:

1.1 The Texas Workforce Commission (TWC) is requesting a bid for flight training for a vocational rehabilitation customer in the Tyler, TX area (zip code 75703). Customer cannot relocate from the local area for this service.

1.2 TWC will accept electronic email submission bids only. Hard copy bids will not be accepted or processed.

1.3 Bids must be returned to TWC not later than 3:00 p.m. (CT), March 21, 2024. Late bids will not be accepted.

1.4 TWC is not responsible for Offers received late, illegible, incomplete, or otherwise considered disqualified due to failure of electronic equipment or operator error.

2.

GUIDANCE FOR BID PREPARATION:

2.1 Each bidder by signing the bid form certifies that their bid meets or exceeds all mandatory specifications set forth in this IFB.

2.2 An authorized officer of the vendor must sign the bid. Bids must be responsive to the specifications contained herein but may contain additional information considered pertinent by the bidder. TWC reserves the right to not make an award from this IFB.

2.3 Brand and model numbers shown on the bid form are indications of desired quality only and aren’t intended to be restrictive. Indicate the brand and model number(s) bidding in the spaces provided.

3.

CONTRACT AWARD

Award will be made by item, groups of items, or on an “all or none” basis, whichever TWC determines is in its best interest.

4.

CONTRACT TERM

Date of award thru March 1, 2025.

5.

WARRANTY:

5 ??

6 ??

Manufacturer’s standard warranty applies.

6.

DEMONSTRATION AND TRAINING:

Successful bidder shall provide appropriate levels of demonstration/training for any applicable items, devices, or equipment upon completion of set up and/or installation.

7.

FREIGHT:

Delivery shall be FOB destination, prepaid and allowed (delivered pricing) to Tyler, TX (zip code 75703). If freight charges will be incurred, the charges must be included in the bid pricing. Specific delivery address and instructions will be provided to the successful bidder(s) upon award.

8.

TERMS AND CONDITIONS:

EMBED Word.Document.12 \s � EMBED MS_ClipArt_Gallery ���

VR T&Cs (01-30-24)

Attachment 1

Texas Workforce Commission (TWC) – VR Terms & Conditions

(01/2024)

By responding to the solicitation, or fulfilling the contract, awarded Purchase Order (PO), 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. Where a purchase is made without the Invitation for Bids (IFB), Request for Offers (RFO), Open Enrollment (OE), or Request for Proposals (RFP) process, IFB/RFO/RFP/OE/Proposal, equates to “Purchase Order” 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.)

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

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

1.3 Freight: Prices quoted are to include freight prepaid, F.O.B. Destination (Free on Board). Enter unit price on quantity and unit of measure specified - extend and show total. In case of errors in extension, unit prices shall govern.

1.4 Firm Pricing: Prices submitted are expected to be firm for TWC acceptance for one hundred eighty (180) days from the solicitation deadline. "Discount from list" offers are not acceptable unless specifically requested. Cash discounts will not be considered in determining the low offer. All cash discounts submitted will be taken if earned. Prices must remain firm for the duration of the term of the PO/contract.

The default Firm Pricing timeframe in this section may be superseded by specific Firm Pricing timeframes in the solicitation or in other parts of the contract.

1.5 Ties: In the case of tie bids, the award will be made pursuant to the preferences listed under 34 Texas Administrative Code (TAC) §20.306.

1.6 Preferences: In making an award, TWC shall apply the preferences listed at 34 TAC §20.306. For purchase or lease of computer equipment TWC shall apply a preference for manufacturers that have a computer recycling program as described in 1 TAC §217.11.

1.7 Bid Alteration/Withdrawal: A submitted response to a solicitation cannot be altered or amended after the solicitation deadline, except by formal negotiation via the RFO/RFP processes. Any alteration made before the solicitation deadline is to be initialed by Vendor or the Vendor’s authorized agent. Vendors are not allowed to withdraw their submitted response after the solicitation deadline without approval by TWC.

1.8 Rejection of Bids: Under Texas Government Code §2156.008, TWC may reject a bid in which there is a material failure to comply with specification requirements. TWC may reject all bids or parts of bids if the rejection serves the State’s best interest.

1.9 Tax Exempt: State use purchases 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.

1.10 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.

1.11 No Travel: TWC will not reimburse a Vendor for travel and expenses unless specifically provided for in the contract documents. In that event, such reimbursement will not exceed the state travel reimbursement rates and limits established by the then current General Appropriations Act.

GENERAL CONDITIONS

2.1 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.

2.2 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, the 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 the 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 the Vendor who submitted it during the retention period.

2.2.4 Under Texas Government Code § 2252.907, Vendor is required to 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.

2.3 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, 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 TWC may negotiate price and terms with any and all Vendors, to accept or reject all or any part of a Vendor’s response, waive minor technicalities, to request Best and Final Offers from all or any Vendors, and make an award that represents Best Value to the agency or the State.

2.3.3 Subsequent to award, TWC may, at its sole option, request the Vendor to negotiate contract amendments or renewals as is determined to be in the best interest of the agency or the State.

2.3.4 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.

2.3.5 If the solicitation leading to a contract allows non-competitive renewal, such 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.

2.3.6 TWC may use a third party to negotiate price related to any Information Technology solicitation or contract.

2.3.7 TWC may make an award on the basis of low line item bid, 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 bid items in the sole discretion of the State.

2.4 Changes in Ownership: During the term of the contract or any extension or renewal thereof, the Vendor shall notify TWC in writing of any substantial change in the ownership or control of the Vendor as soon as possible, but no later than thirty (60) days before its occurrence.

2.5 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.

2.6 INDEMNIFICATION:

2.6.1 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 PURSUANT TO TEX. CIV. PRACT. & REM. CODE, CHAPTER 104.

2.6.2 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.

2.6.2.1 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,.

2.6.2.2 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 EXPENSE 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.

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

2.6.3.1 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 THE 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.

2.6.3.2 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.

2.7 Vendor Performance: Under 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.

2.8 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 pursuant to the contract or otherwise waive Vendor’s right to a Force Majeure defense.

2.9 Dispute Resolution Procedures:

2.9.1 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.

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

2.10 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.

2.11 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.

2.12 Records Retention: Vendor and any subcontractor shall maintain and retain all records relating to contract performance including supporting fiscal documents that show 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 shall 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.

2.13 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 14 for additional TWC Monitoring terms and conditions.)

2.14 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.

2.15 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.

2.16 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.

2.16.1 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.

2.16.2 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.

2.16.3 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.

2.16.4 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.

2.17 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.

2.18 Most Favored Customer: If during the term of the contract, the Vendor enters into another contract with any customer for substantially similar services at prices more favorable than those provided to TWC, the contract may be amended at TWC’s direction to provide the more favorable prices to TWC.

2.19 Governing Law and Venue: The contract shall be governed, construed, and interpreted under Texas law, 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.

2.20 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.

2.21 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.

2.22 Block Terrorism: TWC and the 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

2.23 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.

2.24 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 the following requirements:

2.24.1 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, Texas Government Code Chapter 552 (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. _.”

2.24.2 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/.

2.25 American Recovery and Reinvestment Act (ARRA or the Recovery Act) (As applicable to the services/products):

2.25.1 Buy American Requirements for Construction Material prohibits the use of funds appropriated for the Recovery Act for any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

2.26 Build America, Buy America Act (BABAA) (As applicable to the services/products):

2.26.1 Vendor acknowledges that it understands and agrees that the infrastructure goods it is providing or acquiring under this Agreement are supported with Federal funds subject to the Build America, Buy America Act (BABAA). See Section 70912, the Build America, Buy America Act, the “Infrastructure Investment and Jobs Act” (IIJA; P.L. 117-58). Under that provision, BABAA applies where Federal funding supports an infrastructure project as defined in Section 70912 of BABAA. BABAA requires all of the iron and steel, manufactured products, and construction materials used in the project to be produced in the United States (“Build America, Buy America Requirements”) including iron and steel, manufactured products, and construction materials provided by Vendor pursuant to this Agreement. Vendor hereby represents and warrants to TWC (a) Vendor has reviewed and understands the Build America, Buy America Requirements, (b) all of the iron and steel, manufactured products, and construction materials used in the project will be and/or have been produced in the United States in a manner that complies with the Build America, Buy America Requirements, unless a waiver of the requirements is approved, and (c) Vendor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support a waiver of the Build America, Buy America Requirements, as may be requested by TWC. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by Vendor shall permit TWC to recover as damages against Vendor any loss, expense, or cost (including without limitation attorney’s fees) incurred by the Funding Authority resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part, from TWC or any damages owed to TWC).

2.26.2 Waiver: The Secretary of Education or designee may issue a waiver to the Buy America requirements in limited circumstances including (i) compliant iron, steel, manufactured products, and or construction materials are not available; (ii) utilizing compliant iron, steel, manufactured products, and or construction materials will increase the cost of the overall project by more than 25 percent; (iii) for a reason determined to be in the public interest based on criteria established by the DOE; or (iv) to address exigent circumstances.

Vendors seeking to request a waiver from the BABAA Buy America preference must submit a waiver request and written justification to TWC. Waivers requested will be considered on a case-by-case basis. TWC will also inform the Vendor if there is an existing Waiver in effect covering Vendor’s Waiver request along with the existing Waiver’s parameters. If TWC agrees with the waiver request, TWC will submit the request to the responsible federal agency. Upon receiving the federal agency response, TWC will inform the Vendor whether the request was rejected or granted in whole or part.

2.26.3 Certification: Vendor certifies that it will comply with the provisions of BABAA (Public Law 117-58, §§ 70901-70952) for Infrastructure Projects.

2.26.4 Pass-Through Requirement: Vendor must pass BABAA compliance obligations to any subcontractors for Infrastructure projects paid for with federal funds. Vendor shall require the subcontractor to certify compliance as a condition of any applicable subcontract.

2.27 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.

2.28 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.

2.28.1 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.

2.28.2 Awarded Vendor must have a Non-Disclosure Agreement (NDA) on file with TWC prior to handling Sensitive PII.

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

2.28.3.1. Collect Sensitive PII only as authorized.

2.28.3.2. Limit the use of Sensitive PII.

2.28.3.3. Minimize the proliferation of Sensitive PII.

2.28.3.4. Secure Sensitive PII both physically and in electronic form.

2.28.3.5. 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.

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

2.28.3.7. 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.

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

2.29 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 hereto, and shall become effective on the date designated by such law or by regulation.

2.30 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.”)

2.31 Anti-Kickback: Vendor will comply with the Copeland “Anti-Kickback” Act (18 U.S.C. § 874) and “Regulations Governing Contractors and Subcontractors” (40 U.S.C. §3145), as supplemented by Department of Labor regulations (29 CFR Part 3, Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States).

2.32 Contract Work Hours and Safety Standards Act (40 U.S.C. §§3701-3708) (As applicable to services/products): For all contracts in excess of $100,000 that involve the employment of mechanics and laborers, Vendor shall comply with 40 U.S.C. §§3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5).

2.33 Environmental Protection (As applicable to services/products): Vendor shall comply with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended (33 U.S.C. §1251 et seq.).

2.34 Contracting Information Responsibilities: If the contract has a stated value equal to or in excess of $1 million or results in the expenditure of an amount equal to or in excess of $1 million in public funds, in accordance with Texas Government Code § 552.372, Vendor shall (1) preserve all contracting information related to the contract as provided by the records retention requirement applicable to TWC for the duration of the contract, (2) promptly provide to TWC any contracting information related to the contract that is in the custody or possession of the Vendor on request of TWC, and (3) on termination or expiration of the contract, either provide at no cost to TWC all contracting information related to the contract that is in the custody or possession of the Vendor or preserve the contracting information related to the contract as provided by the records retention requirements applicable to TWC. Except as provided by Texas Government Code §552.374(c), the requirements of Subchapter J, Chapter 552, Texas Government Code, may apply to the contract and Vendor agrees that the contract may be terminated if the Vendor knowingly or intentionally fails to comply with a requirement of that subchapter.

2.35 Disaster Recovery Plan (As applicable to the services/products): Pursuant to 13 TAC §6.94(a)(9), Vendor shall provide to TWC the description of its business continuity and disaster recovery plans.

2.36 Media Releases: Vendor shall not use TWC’s name, logo, or other likeness in any press release, marketing material, or other announcement without TWC’s or the relevant state agency’s prior written approval. TWC does not endorse any vendor, commodity, or service. Vendor shall not make or participate in any media releases or public announcements pertaining to this procurement, the solicitation response or the services to which they relate without the prior written consent of the relevant state agency, and then only in accordance with explicit written instruction from the relevant state agency. Vendors must obtain written approval from the TWC Contract Manager not more that fifteen (15) business days and not less than five (5) business days prior to any media release related to the contract.

2.37 Specific Conditions for Disclosing Federal Funding in Public Announcements: The parties agree that for all statements, press releases, requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or in part with Federal money, the parties shall clearly state:

2.37.1 the percentage of the total costs of the program or project which will be financed with Federal money;

2.37.2 the dollar amount of Federal funds for the project or program; and,

2.37.3 the percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.

2.38 Prohibition of Text Messaging and E-mailing While Driving During Official Federal Grant Business: The parties and their employees and representatives are prohibited from text messaging while driving a government owned vehicle, or while driving their own privately-owned vehicle during official contract business, or from using government supplied electronic equipment to text message or email when driving. The parties must comply with these conditions under Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," October 1, 2009.

2.39 All work performed and Services provided under the contract shall be performed in the United States.

2.40 Key Personnel Background Check: Upon request by TWC, Vendors must submit criminal background checks on all key personnel assigned to the services related to this solicitation, as authorized by Texas law, and at Vendor expense. Key personnel are defined as personnel whose oversight and guidance are essential to the subject services. TWC may provide any finalist for a contract position a Contractor Criminal History Report Investigation Request form P33 which Vendor must complete and submit back to TWC as required on the form. To obtain a facility access badge, Vendor must provide TWC with either a completed form P-33 or a recent criminal background check within fifteen (15) days of contract award. If requested, TWC will not issue a Purchase Order until the criminal background check has been completed and passed.

REQUIRED CERTIFICATIONS

By responding to this solicitation and accepting the award of a contract or purchase order, Vendor certifies to the following:

3.1 Vendor certifies that all statements and information prepared and submitted in this Proposal are current, complete, true and accurate. Submitting a Proposal 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 Proposal and any resulting contract.

3.2 All Terms and Conditions Met: Vendor certifies that all terms and conditions listed in the solicitation will be met.

3.3 Signatory Authority: By submitting the Proposal, Vendor certifies that the individual submitting this document and the documents made part of this Proposal is authorized to sign such documents on behalf of the Vendor and to bind the Vendor under any contract that may result from the submission of this Proposal.

3.4 U.S. Department of Homeland Security’s E-Verify System: By entering into the contract, the Vendor certifies and ensures that it utilizes and will continue to utilize, for the term of the contract, the U.S. Department of Homeland Security’s E-Verify system to determine eligibility of:

3.4.1 All persons employed to perform duties within Texas, during the term of the contract; and

3.4.2 All persons (including subcontractors) assigned by the Respondent to perform work pursuant to the contract, within the United States of America.

3.4.3 The Vendor shall provide, upon request of TWC, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three (3) most recent hires that match the criteria above, by the Vendor, and Vendor’s subcontractors, as proof that this provision is being followed.

3.4.4 If this certification is falsely made, the contract may be immediately terminated, at the discretion of TWC and at no fault to TWC, with no prior notification. The Vendor shall also be responsible for the costs of any re-solicitation that TWC must undertake to replace the terminated contract.

3.5 Inducements/Dealings with Public Servants: Pursuant to Texas Government Code § 2155.003, Vendor affirms it 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 solicitation response.

3.6 Lobbying: that the Vendor will not and has not used any federally appropriated funds to pay any person or organization for influencing or attempting to influence any officer or employee of any federal agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. §1352.