or concerns regarding this transaction or service should be directed to: Texas
Facilities Commission Procurement Division, Phone: (512)463-0209 or FAX:
(512)236-6164 (The mailing address for the Texas Facilities Commission is at the
top of this purchase order.)
TERMS AND CONDITIONS: ITEMS BELOW APPLY TO AND BECOME A
PART OF BID. ANY EXCEPTIONS THERETO MUST BE IN WRITING
1.1. GENERAL. These Terms and Conditions
shall apply for goods and services including without limitation any Invitation
for Bid, Request for Offer, Request for Qualifications, and Request for Proposal
(hereinafter referred to collectively as “solicitations”) offered by the Texas
Facilities Commission (hereinafter referred to as “TFC”) and any purchase order
issued by TFC (hereinafter referred to as “Purchase Order”). The term
“Respondent” shall mean any party who responds to a solicitation for goods and
services offered by TFC. The term “Vendor” shall mean the party listed as
vendor on the purchase order.
1.2. STATUTORY AUTHORITY. This
procurement falls under the statutory authority of the Texas Government Code
Chapter 2151, commonly known as the “Purchasing Act,” Chapter 2155, General
Rules and Procedures, Chapter 2157, Purchasing Methods, and Chapter 2161,
Historically Underutilized Businesses. The purchasing procedures include
statutory requirements and those requirements established by rule of the Texas
Comptroller of Public Accounts (hereinafter referred to as “CPA”), Texas
Procurement and Support Services Division (hereinafter referred to as “TPASS”)
as contained in Title 34 Texas Administrative Code, Part 1, Chapter 20,
Subchapter C, Section 20.31 and other applicable federal and state statutes and
rules citied herein.
1.3 COST OF SUBMITTING RESPONSE. TFC will
not reimburse Respondent for any cost related to its response. Respondent
is responsible for any expense related to the preparation and submission of its
II. GENERAL INSTRUCTIONS.
2.1 SOLICITATION REQUIREMENTS. Respondent
shall comply with the following requirements when responding to a solicitation
for goods and/or services offered by TFC.
(a) Respondent must comply with all rules, regulations and
statutes relating to purchasing in the State of Texas in addition to the
requirements of this form.
(b) Respondent shall submit the number of copies required in
the manner stated in the specification or in the solicitation.
(c) Response shall be submitted on the indicated form or in
the indicated format. Response must be time stamped in TFC’s Mail Room or
hand delivered to the address on the solicitation before the hour and date
specified for the solicitation opening unless specified otherwise. Late
responses will not be considered under any circumstances once the opening has
(d) Failure to sign the solicitation will disqualify the
bid. The person signing the response must have the authorization to
contractually bind Respondent.
(e) Response cannot be altered or amended after opening
time. Alterations made before opening time should be initialed by
Respondent or its authorized agent. No response can be withdrawn after
opening time without approval by TFC based on an acceptable written reason.
(f) The State 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.
(g) If facsimile submission is acceptable per the
solicitation requirements, the telephone number for FAX submission is (512)
236-6164. This is the only number that will be used for the receipt of a
response. The subject line shall include the solicitation number.
TFC shall not be responsible for failure of electronic equipment or operator
error. Late, illegible, incomplete, or otherwise non-responsive responses
will not be considered.
(h) E-mailed responses may be accepted if stated on the
solicitation. E-mailed responses must be in Portable Document Format
(hereinafter referred to as “PDF”), signed by Respondent and attached to the
e-mail to be considered for award.
2.2 PRICING. Respondent shall comply with
the following pricing requirements when responding to a solicitation for goods
and/or services offered by TFC.
(a) Respondent must price per unit shown. Unit prices
shall govern in the event of extension errors.
(b) Respondent must quote F.O.B. destination, freight prepaid
and allowed; otherwise, Respondent must show exact delivery cost and terms.
(c) Prices are requested to be firm for TFC acceptance for
thirty (30) days from opening date if the response is an invitation for bid and
ninety (90) days for all other solicitations. “Discount from list” pricing
is not acceptable unless requested. Cash discounts are not considered in
determining an award. Cash discounts offered will be taken if earned.
(d) Proposal should give Vendor ID Number, full firm name,
and address of Respondent in the response. The Vendor ID Number is the
number assigned and used by the CPA to track payments.
(e) Purchases made for State use are exempt from the State
Sales Tax and Federal Excise Tax; therefore, tax should not be included in the
response. Tax Exemption Certificates are available upon request.
(f) Consistent and continued tie bidding could cause
rejection of response by TFC and/or investigation for antitrust violations.
2.3 SPECIFICATIONS. Respondent shall
carefully examine the solicitation and shall be responsible for securing any
additional information form the TFC point of contact needed to gain a clear and
full understanding of TFC’s requirements.
(a) Any catalog brand name or manufacturer’s references are
descriptive only, and indicate type and quality desired. Responses
including brands of like nature and quality will be considered unless advertised
under Texas Government Code, Section 2155.067. If responding with other
than reference specifications, the response should show manufacturer, brand or
trade name, and other description or product offered. If other than
brand(s) specified is offered, illustrations and complete description of product
offered are requested to be made a part of the response. Failure to take
exception to specifications or reference data will require Respondent to furnish
specified brand names, numbers, etc.
(b) The goods furnished or services performed shall be in
accordance with the specifications set forth in the solicitation and with these
terms and conditions. TFC will provide clarifications of the
specifications and determine the quality and acceptability of goods and products
furnished or work performed. If the solicitation is for a service, TFC
will determine the manner of performance, the rate of progress of the work and
whether the vendor’s performance of the services is acceptable.
(c) Manufacturer’s standard warranty shall apply unless
otherwise stated in this solicitation.
(d) Unless otherwise specified, all goods offered shall be
new, unused, and of current production, including shipping and storage
containers. Verbal agreements to the contrary will not be
(e) All electrical items must meet all applicable OSHA
standards and regulations, and bear the appropriate listing from UL, FMRC, or
(f) Samples, when requested, must be furnished free of
expense to TFC. If not destroyed in examination, samples will be returned
to Respondent, on request, at Respondent’s expense. Each sample should be
marked with Respondent’s name and address, and requisition number. Samples
shall not be enclosed or attached to a response unless specified in the
(g) Respondent shall include the number of days required to
place material in receiving agency’s designated location under normal
conditions. “Delivery days” means calendar days, unless otherwise
specified. Failure to state delivery time obligates Respondent to complete
delivery in fourteen (14) calendar days. Unrealistic delivery promises may
cause bid to be disregarded.
(h) TFC will not be bound by any oral statement or
representation contrary to the written specifications of this
solicitation. Any revision, clarification, or interpretations pertaining
to this solicitation will be in writing and issued by TFC as an addendum.
Any changes or interpretation not in an addendum will not legally bind TFC.
2.4 TIE BIDS. If this solicitation is an
Invitation for Bid, awards will be made in accordance with Title 34 Texas
Administrative Code, Part 1, Chapter 20, Subchapter C, Sections 20.36(b)(3) and
2.5 DELIVERY. No substitutions or
cancellations will be permitted without written approval from TFC.
(a) If delay is foreseen, Vendor shall give written notice to
TFC. Vendor must keep TFC advised at all times of the status of an
order. Default in promised delivery, without accepted reasons, or failure
to meet specifications authorizes TFC to purchase supplies elsewhere and charge
the full increase, if any, in cost and handling to Vendor.
(b) Delivery shall be made between 8:00 am and 4:00 pm Monday
through Friday except on regularly observed State or federal holidays, unless
prior approval has been obtained from TFC.
(c) Receipt of goods or services does not constitute
(d) Goods and materials shall be property packaged.
Damaged goods and materials will not be accepted. If the damage is not
readily apparent at the time of delivery, the goods shall be returned to the
vendor at no cost to TFC. TFC reserves the right to inspect goods at a
reasonable time subsequent to delivery where circumstances or conditions prevent
effective inspection of the goods at the time of delivery.
2.6 INSPECTIONS AND TESTS. All goods will
be subject to inspection and test by TFC. Authorized TFC 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 bid or
on samples taken from regular shipment. All costs shall be borne by Vendor
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 TFC’s option, be returned to Vendor or held for disposition
at vendor’s expense. Latent defects may result in revocation of
2.7 VENDOR PERFORMANCE. (a) TFC is
required to report a vendor’s performance on any purchase of $25,000 or more
from contracts administered by the agency or any other purchase made through
TFC’s delegated authority or a purchase made pursuant to the authority in Texas
Government Code, Title 10, Subtitle D or a purchase exempt from CPA/TPASS
procurement rules and procedures.
(b) Respondent’s past performance will be measured based upon
a classification given by the CPA rating a vendor on an A through F scale, with
A being the highest grade. TFC is required to review the rating in the
CPA’s performance tracking system to determine whether to award a contract to a
(c) Vendor performance information is located on the CPA
website at: <A
(d) TFC may conduct reference checks with other entities
regarding past performance. In addition to evaluating performance through
the Vendor Performance Tracking System, as authorized by Title 34, Part 1,
Chapter 20, Subchapter C, Section 20.108 of the Texas Administrative Code, TFC
may examine other sources of vendor performance including, but not limited to,
notices of termination, cure notices, assessments of liquidated damages,
litigation, audit reports and non-renewal of contracts. Any such
investigations shall be at the sole discretion of TFC, and any negative
findings, as determined by TFC, may result in non-award to the Respondent.
2.8 AWARD OF PURCHASE ORDER. A response
to this solicitation is an offer to contract based upon the terms, conditions,
and specifications contained herein. Responses do not become a purchase
order until they are accepted by the TFC Procurement Division through issuance
of a purchase order number. The Purchase Order shall be governed,
construed, and interpreted under the laws of the State of Texas. The
factors listed in Texas Government Code, Title 10, Subtitle D, Section 2156.007
shall also be considered in making an award.
2.9 IRREVOCABILITY OF A RESPONSE. The
response is irrevocable for thirty (30) days from opening if the response is an
invitation for bid and ninety (90) days for all other solicitations. This
period may be extended at TFC’s request with the Respondent’s written
2.10 ORDER OF PRECEDENCE. In the event of
any conflict or contradiction between or among solicitation documents, the
Notice of Award, as modified by any amendments, shall control over the
solicitation and the response. The solicitation, as modified by any
addenda, shall control over the response.
2.11 PURCHASE ORDER DOCUMENTATION. The
Purchase Order will consist of the Notice of Award, the solicitation package,
all attachments and the mandatory Price Sheet, together with any modifications
made through addenda thereto, and the successful response, together with any
clarifications thereto that are submitted at the request of TFC. No terms
or conditions that are included in any response or submitted by Respondent that
differ from or are contrary to the terms and conditions of TFC’s solicitation
documents constitute part of the Purchase Order unless specifically incorporated
by TFC in writing signed by TFC.
III. RESPONDENT AFFIRMATIONS.
3.1 FALSE STATEMENTS. Respondent
represents and warrants that all statements and information prepared and
submitted in response to the solicitation are current, complete, true, and
accurate. Signing the solicitation with a false statement is a material
breach of this Purchase Order and shall void the submitted response or any
resulting Purchase Orders, and may result in removal of the Respondent from the
Centralized Master Bidders List.
3.2 CONFORMANCE. Respondent represents
and warrants that all goods and services furnished shall conform in all respects
to the terms of this Purchase Order, including any drawings, specifications or
standards incorporated herein, and any defect in materials, workmanship and free
from such defects in design. In addition, Respondent represents and
warrants that goods and services are suitable for and will perform in accordance
with the purposes for which they are intended.
3.3 FINANCIAL INTERESTS/GIFTS. (a)
Pursuant to Texas Government Code Sections 572.051 and 2255.001 and Texas Penal
Code Section 36.09, 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 this solicitation.
(b) Pursuant to Texas Government Code Chapter 573 and
Section 2254.032, if applicable, Respondent certifies that Respondent knows of
no officer or employee of TFC, nor any relative within the second degree of
consanguinity or affinity of an officer or employee of TFC, that has a financial
interest in Respondent’s company or corporation. Respondent further
certifies that no partner, corporation, or unincorporated association which
employs, retains or contracts with, or which may employ, retain, or contract
with any of the above, has a financial interest in any entity with which
Respondent will be dealing on behalf of TFC.
3.4 ELIGIBILITY. Pursuant to Texas
Government Code Section 2155.004(b), Respondent certifies that the individual or
business entity named in this response is not ineligible to receive the
specified Purchase Order and acknowledges that the Purchase Order may be
terminated and payment withheld if this certification is inaccurate.
3.5 FAMILY CODE. Pursuant to the
requirements of Texas Family Code Section 231.006, regarding delinquent child
support, the undersigned signatory certifies that the individual or business
entity named in this Purchase Order is not ineligible to receive payment under
this Purchase Order and, if applicable, Respondent has provided the name and
Social Security Number of each person (sole proprietors, firm owners, partners,
or shareholders) with at least twenty five percent (25%) ownership of the
business entity entering into this Purchase Order prior to its execution.
Respondent acknowledges that this Purchase Order may be terminated and payment
may be withheld if this certification is inaccurate.
3.6 DEBTS OR DELINQUENCIES TO STATE.
Pursuant to Texas Government Code Section 403.055, Respondent understands and
agrees that any payment due under this Purchase Order may be applied toward
payment of any debt that is owed to the State of Texas including, but not
limited to, delinquent taxes and child support.
3.7 ANTITRUST AND ASSIGNMENT OF CLAIMS.
(a) Respondent represents and warrants that neither Respondent nor any
firm, corporation, partnership or institution represented by Respondent, or
anyone acting for such firm, corporation, or institution has: (i) violated the
antitrust laws of the State of Texas under the Texas Business and Commerce Code,
Chapter 15, or the federal antitrust laws; nor (ii) communicated directly or
indirectly the solicitation made to any competitor or any other person engaged
in such line of business.
(b) Respondent hereby assigns to the State of Texas all of
Vendor’s rights, title and interest in and to all claims and causes of action
Respondent may have under the antitrust laws of Texas or the United States for
overcharges associated with this Purchase Order.
3.8 DECEPTIVE TRADE PRACTICE; UNFAIR BUSINESS
PRACTICES. Respondent represents and warrants that it has
not been the subject of allegations of Deceptive Trade Practices violations
under the Texas Business and Commerce Code, Chapter 17, or allegations of any
unfair business practice in any administrative hearing or court suit and that
Respondent has not been found to be liable for such practices in such
proceedings. Respondent certifies that it has no officers who have served
as officers of other entities who have been the subject allegations of Deceptive
Trade Practices violations or allegations of any unfair business practices in an
administrative hearing or court suit and that such officers have not been found
to be liable for such practices in such proceedings.
3.9 AGENCY EXECUTIVE HEAD. Under Texas
Government Code Section 669.003 relating to contracting with an executive of a
state agency, Respondent represents that no person who, in the past four (4)
years, served as an executive of TFC or any other state agency, was involved
with or has any interest in this Purchase Order or contract resulting from this
solicitation. If Respondent employs or has used the services of a former
executive head of TFC or any other state agency, then Respondent shall provide
the following information: the name of the former executive, the name of the
state agency, the date of separation from the state agency, the position held
with Respondent, and the date of employment with Respondent.
3.10 NO CONFLICTS. Respondent represents
and warrants that Respondent has no actual or potential conflicts of interest in
providing services to the State of Texas under this Purchase Order and that
Respondent’s provision of services under this Purchase Order would not
reasonably create an appearance of impropriety.
3.11 PROHIBITION ON CERTAIN BIDS AND
CONTRACTS. Under Texas Government Code, Section 2155.006, relating
to the prohibition of certain bids and contracts, Respondent certifies that the
individual or business entity named in this Purchase Order is not ineligible to
receive the specified Purchase Order and acknowledges that this Purchase Order
may be terminated and payment withheld if this certification is
inaccurate. Respondent represents and warrants that during the five (5)
year period preceding the date of this Purchase Order, Respondent has not been:
(i) convicted of violating a federal law in connection with a contract awarded
by the federal government for relief, recovery, or reconstruction efforts as a
result of Hurricane Rita, as defined by Texas Utilities Code, Section 39.459,
Hurricane Katrina, or any other disaster occurring after September 24, 2005; or
(ii) assessed a penalty in a federal civil or administrative enforcement action
in connection with a contract awarded by the federal government for relief,
recovery, or reconstruction efforts as a result of Hurricane Rita, as defined by
Texas Utilities Code, Section 39.459, Hurricane Katrina, or any other disaster
occurring after September 24, 2005.
3.12 PRIOR EMPLOYMENT. Vendor certifies
that Vendor shall comply with all applicable Texas and federal laws and
regulations relating to the hiring of former state employees including
“revolving door” provisions. Furthermore, Vendor certifies that if it employs
any former employee of TFC, such employee will perform no work in connection
with this Purchase Order during the twelve (12) month period immediately
following the employee’s last date of employment at TFC.
4.1 PAYMENT. Payment for goods and
services purchased with state-appropriated funds is made by warrants or by
direct deposit from the State Treasury. No penalty for late payment will
be incurred by TFC if payment is made in thirty (30) days or less from receipt
of goods, services or a correct invoice, whichever is later. Payment under this
Purchase Order are subject to the availability of appropriated funds. Payment
will be made in accordance with Chapter 2251 of the Texas Government Code.
(b) If, at any time during the term of this Purchase Order,
Vendor reduces the comparable price of any article or service covered by the
Purchase Order to customers other than TFC, the prices charged to TFC for such
articles or services shall also be reduced proportionately. Such reduction
shall be effective at the same time and in the same manner as the reduction in
price to customers other than TFC. In addition to invoicing at the reduced
prices, Vendor shall furnish promptly to TFC complete information regarding the
4.2 PAYMENTS TO VENDOR FOR GOODS. To
facilitate payments for goods provided by Vendor to TFC, Vendor’s invoice shall
include, but not be limited to, the following:
(i) the Vendor’s mailing and e-mail address, if applicable;
(ii) the Vendor’s telephone number;
(iii) the name and telephone number of a person designated by
the vendor to answer questions regarding the invoice;
(iv) the TFC Purchase Order;
(v) TFC’s name, and delivery address;
(vi) the TFC requisition number, if applicable;
(vii) the TFC contract number or other reference number, if
(viii) a valid Texas Identification Number (TIN) issued by
(ix) a description of the goods or services, in sufficient
detail to identify the order which relates to the invoice;
(x) unit numbers corresponding to the original order; and
(xi) other relevant information supporting and explaining the
payment requested or identifying a successor organization to an original vendor,
4.3 PAYMENTS TO VENDOR FOR SERVICES.
(a) Payments for services provided by Vendor will be made on a monthly
basis and within thirty (30) days from receipt of a correct invoice or billing
statement in accordance with the Texas Government Code, Chapter 2251, Texas
Prompt Payment Act. An invoice is considered received on the date it is date
stamped by TFC. Vendor will be paid for completion of work accepted and
approved by TFC. For large projects, partial payment may be allowed once
per month on completed work with acceptance and approval of TFC.
(b) Vendor shall invoice TFC for services performed by vendor
identification number, building, if applicable, and purchase order number.
Invoices must include the purchase order number, the number of employees that
worked on the job and the number of hours. Additionally, invoices for any
materials purchased for each project must be provided. Address for submission
is: Texas Facilities Commission, Accounts Payable, P.O. Box 13047, Austin,
Texas 78711-3047 or by e-mail to <A
4.4 STATE FUNDING. (a) This
Purchase Order shall not be construed as creating any debt on behalf of the
State of Texas and/or TFC in violation of Tex. Const. art. III, § 49. In
compliance with Tex. Const. art. VIII, § 6, it is understood that all
obligations of TFC hereunder are subject to the availability of state
funds. If such funds are not appropriated or become unavailable, this
Purchase Order may be terminated. In that event, the parties shall be
discharged from further obligations, subject to the equitable settlement of
their respective interests accrued up to the date of termination.
(b) Furthermore, any damages due under this Purchase Order
should not exceed the amount of funds appropriated for pay¬ment under this
Purchase Order, but not yet paid to Vendor, for the fiscal year budget in
existence at the time of the breach; provided, however, the foregoing shall not
be construed as a waiver of sovereign immunity.
4.5 TRAVEL. Any travel or per diem
required by Vendor to perform its obligations under the Purchase Order will be
at Vendor’s expense. All travel and per diem that TFC requests in addition
to what the Purchase Order requires Vendor to provide at the Vendor’s expense
will be paid at rates not to exceed State of Texas travel laws, rules and
regulations. Vendor must obtain prior written approval by TFC prior to
incurring travel expenses.
V. TERMINATION AND DEFAULT.
5.1 TERMINATION. (a) TFC may
terminate this Purchase Order immediately for default by providing written
notice to Vendor of such termination if the Vendor fails to execute the work
properly, performs work in an unsatisfactory manner, or fails to perform any
provision of the Purchase Order. In the event of abandonment or default,
Vendor will be responsible for paying damages to TFC, including but not limited
to, the cost to re-solicit this Purchase Order and any consequential damages to
the State of Texas or TFC resulting from Vendor’s non-performance. The
defaulting Vendor will not be considered in the re-solicitation and may not be
considered in future solicitations for the same type of work, unless the scope
of work is significantly changed.
(b) TFC may, at its sole option and discretion, terminate
this Purchase Order at any time, for any reason whatsoever, in whole or in part,
by giving written notice (hereinafter referred to as the “Notice of
Termination”) to Vendor at least thirty (30) days prior to the effective date of
termination or reduction in the scope of work. In the event of termination
by TFC under this subsection, Vendor shall be governed by the terms and
conditions, and shall perform the acts outlined in the following Section
(c) Vendor shall terminate all work under the Purchase Order
to the extent and on the date specified in the Notice of Termination and until
such date shall, to the extent stated in the Notice of Termination, do such work
as may be necessary and be compensated only for such work as may be necessary as
determined by TFC preserve the work in progress and to protect materials,
properties, and equipment. In the event of termination by TFC, TFC shall pay
Vendor for all work satisfactorily performed up to the effective date of
termination or reduction in the scope of work in accordance with the prices
included in the scope of work.
(d) Vendor may terminate the Purchase Order upon providing
sixty (60) days’ written notice to TFC. In the event of termination by
Vendor, Vendor shall be governed by the terms and conditions of this Purchase
Order, and shall perform the acts outlined in Section 5.1(c) above. Vendor
will be held responsible for additional cost incurred from the termination of
this Purchase Order.
5.2. CHANGE IN FEDERAL OR STATE
REQUIREMENTS. If federal or state laws, rules, regulations or
requirements applicable to this Purchase Order are amended, performance under
this Purchase Order will be subject to the laws, rules, regulations or
requirements applicable at the time of performance under the Purchase
Order. If federal or state laws or regulations or other federal or state
requirements are amended or judicially interpreted so that either TFC or Vendor
cannot reasonable fulfill the Purchase Order and if the parties cannot agree to
an amendment that would enable substantial continuation of the Purchase Order,
the parties shall be discharged from any further obligations under the Purchase
5.3. RIGHTS UPON TERMINATION OR EXPIRATION OF PURCHASE
ORDER. In the event that the Purchase Order is terminated for any
reason, or upon is expiration, TFC shall retain ownership of all associated work
products and documentation obtained from Vendor under the Purchase Order.
5.4 NO LIABILITY UPON TERMINATION. If
this Purchase Order is terminated for any reason, TFC and the State of Texas
shall not be liable to Vendor for any damages, claims, losses, or any other
amounts arising from or related to any such termination absent an award of
damages pursuant to Texas Government Code, Chapter 2260.
5.5 SURVIVAL OF TERMS. Termination of the
Purchase Order for any reason shall not release Vendor from any liability of
obligation set forth in the Purchase Order that is expressly stated to survive
any such termination or by its nature would be intended to be applicable
following any such termination, including the provisions regarding
confidentiality, indemnification, transition, records, audit, property rights,
dispute resolution and invoice and verification.
VI. CRIMINAL BACKGROUND CHECK AND E-VERIFY.
6.1 GENERAL AND CRIMINAL BACKGROUND
CHECKS. (a) Vendor represents and warrants that Vendor and
Vendor’s employees have not been convicted of a felony criminal offense, or
that, if such a conviction has occurred, Vendor has fully advised TFC as to the
facts and circumstances surrounding the conviction.
(b) Vendor’s employees and subcontractors that will
complete any work on-site at a state-owned property may be subject to a criminal
background check. Any expense associated with such criminal background check
shall be borne by Vendor. A complete criminal background check shall be
completed before any employee performs services at the site, and may be
requested at any time thereafter. Criminal background checks must be
accomplished by the Texas Department of Public Safety (“DPS”), which includes
fingerprint processing by an independent third-party company selected by DPS.
Upon receipt of the fingerprints of Vendor’s employees and/or subcontractors,
DPS or TFC, will adjudicate the results of the criminal background searches in
accordance with the criteria set forth in the TFC Criminal Background Checks and
Application Guidelines attached hereto and incorporated herein for all
6.2 E-VERIFY. (a) By entering into
this Purchase Order, Vendor certifies and ensures that it utilizes and will
continue to utilize, for the term of this Purchase Order, the U.S. Department of
Homeland Security’s E-Verify system, in accordance with the U.S. Department of
Homeland Security’s rules, to determine the eligibility of:
(i) all persons employed to perform duties within the State
of Texas, during the term of the Purchase Order; and
(i.) all persons, including subcontractors, assigned by the
Vendor to perform work pursuant to the Purchase Order, within the United States
(b) Vendor shall provide, upon request of TFC and if
available, 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. If this certification is falsely made, the
Purchase Order may be immediately terminated, at the discretion of TFC, and at
no fault to TFC, with no prior notification. Vendor shall also be responsible
for the costs of any re-solicitation that TFC must undertake to replace the
terminated Purchase Order.
VII. RECORDS, AUDIT, PROPRIETARY INFORMATION, AND PUBLIC
7.1 SUPPORTING DOCUMENTS, RETENTION; RIGHT TO AUDIT;
(a) Vendor shall maintain and retain
supporting fiscal and any other documents relevant to showing that any payments
under this Purchase Order 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 this Purchase Order
and the State’s property for a period of seven (7) years after the date of
submission of the final invoices or until a resolution of all billing questions,
whichever is later. Vendor shall make available at reasonable times and
upon reasonable notice, and for reasonable periods, all documents and other
information related to the Purchase Order. Vendor and any subcontractors
shall provide the State Auditor with any information that the State Auditor
deems relevant to any investigation or audit. Vendor must retain all work
and other supporting documents pertaining to this Purchase Order, for purposes
of inspecting, monitoring, auditing, or evaluating by TFC and any authorized
agency of the State of Texas, including an investigation or audit by the State
(b) Vendor shall cooperate with any authorized agents of the
State of Texas and shall provide them with prompt access to all of such State’s
work as requested. The acceptance of funds by Vendor or any other entity
or person directly under this Purchase Order, or indirectly through a
subcontractor under this Purchase Order, shall constitute acceptance of the
authority of the State Auditor to conduct an audit or investigation in
connection with those funds. Vendor acknowledges and understands that the
acceptance of funds under this Purchase Order shall constitute consent to an
audit by the State Auditor, Comptroller or other agency of the State of
Texas. Vendor shall ensure that this paragraph concerning the State’s
authority to audit funds received indirectly by subcontractor through Vendor and
the requirement to cooperate is included in any subcontractor it awards.
Furthermore, 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.
7.2 CONFIDENTIALITY. Vendor shall keep
confidential all information, in whatever form, produced, prepared, observed or
received by Vendor to the extent that such information is:
(a) confidential by law;
(b) marked or designated “confidential” (or words to that
effect) by TFC; or
(c) information that Vendor is otherwise required to keep
confidential by this Purchase Order.
RECORDS. Notwithstanding any provisions of this Purchase Order to
the contrary, Vendor understands that TFC will comply with the Texas Public
Information Act, Texas Government Code, Chapter 552. If contacted by TFC,
Vendor will cooperate with TFC in the production of documents responsive to the
request. Vendor agrees to provide the documents responsive to the request
in the format and within the time frame specified by TFC. Vendor may
request that TFC seek an opinion from the Office of the Texas Attorney
General. However, the final decision whether to seek a ruling from the
Office of the Texas Attorney General will be made by TFC in its sole discretion
to comply with the legal requirements of the Texas Public Information Act.
Additionally, Vendor will notify TFC’s general counsel within twenty-four (24)
hours of receipt of any third-party requests for information written, produced,
collected, assembled, or maintained in connection with this Purchase Order
and/or any amendment to this Purchase Order. This Purchase Order and/or
any amendment to this Purchase Order and all data and other information
generated or otherwise obtained in its performance is subject to the Texas
Public Information Act. Vendor agrees to maintain the confidentiality of
information received from the State of Texas during the performance of this
Purchase Order, including information which discloses confidential personal
information particularly, but not limited to, social security numbers.
Furthermore, Vendor is required to make any information created or exchanged
with the State pursuant to this Purchase Order, and not otherwise excepted from
disclosure under the Texas Public Information Act, available in a format that is
accessible by the public as specified by TFC at no additional charge to the
7.4 PUBLIC DISCLOSURE. No public
disclosures or news releases pertaining to this Purchase Order shall be made
without prior written approval of TFC.
VIII. BONDS AND INSURANCE.
8.1 BONDS. (a) Prior to
commencement of construction work, if applicable under the solicitation, Vendor
is required to tender payment and performance bonds to TFC, as required by Texas
Government Code, Chapter 2253, when the following circumstances apply:
(i) A performance bond is required if the Purchase
Order amount is in excess of $100,000.00. The performance bond is solely for the
protection of TFC. The performance bond is to be for the sum of the Delivery
Release to guarantee the faithful performance of the work in accordance with the
Purchase Order. The performance bond shall be effective through Contractor’s
(ii) A payment bond is required if the Purchase Order
amount is in excess of $25,000.00. The payment bond is to be for the sum
of the Purchase Order and is payable to TFC solely for the protection and use of
payment bond beneficiaries who have a direct contractual relationship with
Vendor or a subcontractor.
(b) Each bond shall be executed by a corporate surety or
sureties authorized to do business in the State of Texas and acceptable to TFC,
on TFC’s form (a copy of which can be provided by TFC upon request), and in
compliance with the relevant provisions of the Texas Insurance Code. If any bond
is for more than ten (10) percent of the surety’s capital and surplus, TFC may
require certification that the company has reinsured the excess portion with one
or more reinsurers authorized to do business in the State. A reinsurer may not
reinsure for more than ten (10) percent of its capital and surplus. If a surety
upon a bond loses its authority to do business in the State, Vendor shall,
within thirty (30) days after such loss, furnish a replacement bond at no added
cost to TFC.
(c) Each bond shall be accompanied by a valid power of
attorney (issued by the surety company and attached, signed and sealed with the
corporate embosses seal, to the bond) authorizing the attorney in fact who signs
the bond to commit the company to the terms of the bond, and stating any limit
in the amount for which the attorney can issue a single bond.
(d) The process of requiring and accepting bonds and making
claims thereunder shall be conducted in compliance with Texas Government Code,
Chapter 2253. IF FOR ANY REASON A STATUTORY PAYMENT OF PERFORMANCE BOND IS NOT
HONORED BY THE SURETY, VENDOR SHALL FULLY INDEMNIFY AND HOLD OWNER HARMLESS OF
AND FROM ANY COSTS, LOSSES, OBLIGATIONS OR LIABILITIES IT INCURS AS A
(e) TFC shall furnish certified copies of the payment bond
and the related Purchase Order to any qualified person seeking copies who
complies with Texas Government Code, Section 2253.026.
(f) Claims on payment bonds must be sent directly to Vendor
and its surety in accordance with Texas Government Code, Section 2253.041. All
payment bond claimants are cautioned that no lien exists on the funds unpaid to
Vendor on such contract, and that reliance on notices sent to TFC may result in
loss of their rights against Vendor and/or its surety. TFC is not
responsible in any manner to a claimant for collection of unpaid bills, and
accepts no such responsibility because of any representation by any agent or
(g) The rights of subcontractors regarding payment are
governed by Texas Property Code, Sections 53.231–53.239 when the value of a
Purchase Order is less than $25,000.00. These provisions set out the
requirements for filing a valid lien on funds unpaid to Vendor as of the time of
filing the claim, actions necessary to release the lien and satisfaction of such
(h) Sureties shall be listed on the US Department of
the Treasury’s Listing Approved Sureties stating companies holding Certificates
of Authority as acceptable sureties on federal bonds and acceptable reinsuring
companies (Department Circular 570).
8.2 INSURANCE. Prior to the commencement
of work under this Purchase Order, Vendor agrees to carry and maintain insurance
in the following types and amounts for the duration of this Purchase Order, to
furnish certificates of insurance including corresponding policy endorsements,
and make available, at no cost to TFC, copies of policy declaration pages as
(a) Workers’ Compensation and Employers’ Liability
coverage with minimum policy limits for employers’ liability of $100,000.00
bodily injury per accident, $100,000.00 bodily injury disease policy limit and
$500,000.00 per disease, per employee. Workers’ compensation insurance
coverage must meet the statutory requirements of Texas Labor Code, Section
401.011(46). Certification in writing from Vendor and subcontractor shall
be provided to TFC in accordance with Texas Labor Code, Section 406.096. A
Waiver of Transfer Right of Recovery Against Others in favor of TFC shall be
(b) Commercial General Liability with a combined
single limit of $500,000.00 per occurrence for coverage A and B including
products/completed operations, where appropriate, with a separate aggregate of
$1,000,000.00 for bodily injury and for property damages. The general aggregate
limit shall apply on a per Project basis. The policy shall contain the following
(i) blanket contractual liability coverage for liability
assumed under the Purchase Order;
(ii) independent Vendors’ coverage;
(iii) State of Texas, TFC, its officials, directors,
employees, representatives and volunteers must be listed as additional
(iv) thirty (30) day Notice of Cancellation in favor of TFC;
(v) Waiver of Transfer Right of Recovery Against Others in
favor of TFC.
(c) Business Automobile Liability Insurance for all owned,
non-owned and hired vehicles with a minimum combined single limit of $500,000.00
per accident for bodily injury and property damage. Alternate acceptable
limits are $500,000.00 bodily injury per person, $500,000.00 bodily injury per
occurrence and at least $500,000.00 property damage liability per
accident. The policy shall contain the following endorsements in favor of
(i) Waiver of Subrogation endorsement;
(ii) Thirty (30) day Notice of Cancellation endorsement;
(iii) Additional Insured endorsement.
(d) For renovation projects or projects that involve
portions of work contained within an existing structure, the policy must also
include Existing Property coverage in an amount equivalent to the Total Purchase
Order Sum. For purposes herein, “Existing Property” means existing
buildings or structures as well as, all personal property contained
therein. “Existing Property” does not include personal property owned or
operated by Vendor or any subcontractors.
(e) For TFC furnished equipment or materials that will be in
care, custody or control of Vendor, Vendor shall be responsible for any and all
damages and losses thereto.
(f) The policy must be written jointly in the names of TFC
and Vendor. Subcontractors must be named as additional insureds. The
policy shall have endorsements as follows:
(i) this insurance shall be specific as to coverage and not
contributing insurance with any insurance or self-insurance carried by TFC, if
(ii) this insurance shall not contain an occupancy clause
suspending or reducing coverage should Owner partially occupy the Site and
before the parties have determined Substantial Completion; and
(iii) loss, if any, shall be adjusted with and made payable
to TFC as trustee for the insureds as their interests may appear. TFC
shall be named as loss payee.
(g) Valuation of any loss for the renovation and any
existing property (exclusive of building and existing structures) shall be at
(h) Policy shall remain in effect until Substantial
Completion is achieved as to all phases of the Project.
8.3 GENERAL REQUIREMENTS FOR INSURANCE.
(a) Vendor shall be responsible for deductibles and self-insured
retention, if any, stated in policies. All deductibles or self-insured
retention shall be disclosed on the certificate of insurance required
above. If coverage is underwritten on a claims-made basis, the retroactive
date shall be coincident with the date of this Purchase Order and the
certificate of insurance shall state that the coverage is claims made and the
(b) Vendor shall maintain coverage for the duration of this
Purchase Order. Coverage, including any renewals, shall have the same
retroactive date as the original policy applicable to the Purchase Order.
Vendor shall, on at least an annual basis, provide TFC with an insurance
certificate as evidence of such insurance. The premium for this extended
reporting period shall be paid by Vendor.
(c) Vendor shall not commence work under this Purchase Order
until they have obtained the required insurance and until such insurance has
been reviewed by TFC. Vendor shall not allow any subcontractors to
commence work until the required insurance has been obtained and approved.
Approval of insurance by TFC shall not relieve or decrease the liability of
(d) Insurance shall be written by a company licensed to do
business in the State of Texas at the time the policy is issued and shall be
written by a company with an A.M. Best rating of A- or better.
(e) TFC shall be an additional insured as its interests may
apply on the Commercial General Liability and Business Automobile Liability
(f) Vendor shall produce endorsements upon TFC's request to
each affected policy:
(i) Naming TFC, P.O. Box 13047, Austin, Texas 78711 as
additional insured (except Workers' Compensation and employers’ Liability);
(ii) That obligates the insurance company to notify the TFC
Purchase Order Administrator, TFC, P.O. Box 13047, Austin, Texas 78711, of any
non-renewal, cancellations or material changes at least thirty (30) days prior
to change or cancellation; and,
(iii) That the “other” insurance clause shall not apply to
the State where TFC is an additional insured shown on the policy. It is
intended that policies required in this Purchase Order, covering both TFC and
Vendor, shall be considered primary coverage as applicable.
(g) TFC shall be entitled, upon request and without expense,
to receive copies of policies and endorsements thereto and may make any
reasonable requests for deletion or revision or modification of particular
policy terms, conditions, limitations, or exclusions except where policy
provisions are established by law or regulations binding upon either of the
parties hereto or the underwriter on any such policies and if such request for
deletions, revisions, or modifications are commercially available.
(h) Vendor shall not cause any insurance required under this
Purchase Order to cancel nor permit any insurance to lapse during the term of
this Purchase Order.
(i) TFC reserves the right to review the insurance
requirements of this section during the effective period of the Purchase Order
and to make reasonable adjustments to insurance coverage and their limits when
deemed necessary and prudent by TFC based upon changes in statutory law, court
decisions or the claims history of the industry as well as Vendor (such
adjustments shall be commercially available to Vendor).
(j) Vendor shall provide TFC thirty (30) days written notice
of erosion of the aggregate limit.
(k) Actual losses not covered by insurance as required by
this Purchase Order shall be paid by Vendor.
(l) Vendor’s insurance shall include a waiver of subrogation
to TFC for the Workers' Compensation and Employers' Liability, Commercial
General Liability, and Business Automobile Liability policies.
IX. INDEMNIFICATION AND LEGAL OBLIGATIONS.
9.1 INDEMNIFICATION. VENDOR SHALL
INDEMNIFY AND HOLD HARMLESS TFC AND THE STATE OF TEXAS, THEIR AGENTS AND
EMPLOYEES, FROM ALL LIABILITY AND DAMAGES ACTIONS, CLAIMS, DEMANDS OR SUITS FOR
ANY AND ALL INJURIES OR DAMAGES SUSTAINED BY ANY PERSON OR PROPERTY TO THE
EXTENT CAUSED BY ANY NEGLIGENCE IN THE PERFORMANCE OF THE SERVICES REFERENCED
HEREIN AND FROM ANY CLAIMS OR AMOUNTS ARISING OR RECOVERABLE UNDER BOTH FEDERAL
AND STATE WORKERS COMPENSATION LAWS, TEXAS TORT CLAIMS ACT (TEXAS CIVIL PRACTICE
AND REMEDIES CODE, CHAPTER 101), OR ANY OTHER SUCH LAWS. VENDOR SHALL
FURTHER SO INDEMNIFY AND BE RESPONSIBLE FOR ALL DAMAGES OR INJURY TO PROPERTY OF
ANY CHARACTER TO THE EXTENT CAUSED BY ANY NEGLIGENT ACT, OMISSION OR MISCONDUCT
OF VENDOR, VENDOR'S AGENTS OR EMPLOYEES, IN THE MANNER OR METHOD OF EXECUTION OF
THE SERVICES HEREIN TO BE PERFORMED; OR FROM FAILURE TO PROPERLY PERFORM THE
SERVICES TO THE REQUIRED STANDARD STATED HEREIN; OR FROM DEFECTIVE WORK OR
MATERIALS; OR FROM BREACH OF ANY REPRESENTATION OR WARRANTY HEREIN. THESE
REQUIREMENTS SHALL SURVIVE THE TERM OF THIS AGREEMENT UNTIL ALL CLAIMS HAVE BEEN
SETTLED OR RESOLVED AND SUITABLE EVIDENCE TO THAT EFFECT HAS BEEN FURNISHED TO
TFC. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE
ATTORNEY GENERAL WHEN TFC AND/OR THE STATE OF TEXAS 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.
9.2 INFRINGEMENT INDEMNIFICATION.
(a) VENDOR SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND
CUSTOMERS, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, VENDORS ASSIGNEES
AND/OR DESIGNEES FROM ANY AND ALL THIRD PARTY CLAIMS INVOLVING INFRINGEMENT OF
UNITED STATES PATENTS, COPYRIGHTS, TRADE AND SERVICE MARKS, AND ANY OTHER
INTELLECTUAL OR INTANGIBLE PROPERTY RIGHTS IN CONNECTION WITH THE PERFORMANCES
OR ACTIONS OF VENDOR PURSUANT TO THIS PURCHASE ORDER. VENDOR AND TFC 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 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.
(b) Vendor shall have no liability under this section if the
alleged infringement is caused in whole or in part by:
(i) use of the product or service for a purpose or in a
manner for which the product or service was not designed;
(ii) any modification made to the product without Vendor’s
(iii) any modifications made to the product by the Vendor
pursuant to TFC’s specific instructions;
(iv) any intellectual property right owned by or licensed to
(v) any use of the product or service by TFC that is not in
conformity with the terms of any applicable license agreement.
(c) If Vendor becomes aware of an actual or potential claim,
or TFC provides Vendor with notice of an actual or potential claim, Vendor may
(or in the case of an injunction against TFC, shall), at Vendor’s sole option
(i) procure for TFC the right to continue to use the
affected portion of the product or service, or
(ii) modify or replace the affected portion of the product
or service with functionally equivalent or superior product or service so that
TFC’s use is non-infringing.
9.3 LEGAL OBLIGATIONS. Vendor shall
procure and maintain for the duration of this Purchase Order any state, county,
city, or federal license, authorization, insurance, waiver, permit,
qualification or certification required by statute, ordinance, law, or
regulation to be held by Vendor to provide the goods or services required by
this Purchase Order. Vendor will be responsible to pay all taxes,
assessments, fees, premiums, permits, and licenses required by law. Vendor
agrees to be responsible for payment of any such government obligations not paid
by its subcontractors during performance of this Purchase Order.
9.4 COMPLIANCE WITH LAWS. Vendor shall
comply with all applicable federal, state, and local laws, including laws
governing labor, equal employment opportunity, safety, and environmental
protection. Vendor shall make itself familiar with and at all times shall
observe and comply with all federal, state, and local laws, ordinances, and
regulations which in any manner affect performance under this purchase order.
9.5 GOVERNING LAW AND VENUE. This
Purchase Order and the rights and obliga¬tions of the parties hereto shall be
governed by, and con¬strued according to, the laws of the State of Texas,
exclusive of conflicts of law provisions. Venue of any suit brought under this
Purchase Order shall be in a court of competent jurisdiction in Travis County,
Texas. Vendor irrevocably waives any objection, including any objection to
personal jurisdiction or proper venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the filing of any action or
proceeding in such jurisdiction in respect of this Purchase Order or any
document related hereto. Nothing in this section shall be construed as a
waiver of sovereign immunity by TFC.
X. ASSIGNMENT AND SUBCONTRACTING.
10.1 ASSIGNMENT. Vendor shall neither
assign, transfer, nor delegate any rights, obligations, or duties under this
Purchase Order without the prior written consent of TFC.
10.2 SUBCONTRACTING. It is mutually
understood and agreed that Vendor may subcontract with others for some or all of
the services to be performed. Subcontractors providing service under this
Purchase Order shall meet the same requirements and level of experience as
required of the Vendor. No subcontract under the Purchase Order shall
relieve Vendor of responsibility for the service. If Vendor uses a
subcontractor for any or all of the work required, the following conditions
shall apply under the listed circumstances.
(i) Vendors planning to subcontract Order all or a portion
of the work to be performed under this Purchase Order shall identify the
proposed subcontractor on the HUB Subcontracting Plan, as further described in
Section 10.3 below.
(ii) Subcontracting shall be at the Vendor’s expense.
(iii) TFC retains the right to check any subcontractor’s
background and make the determination to approve or reject the use of
(iv) Vendor shall be the only contact for TFC and
subcontractor. Vendor shall list a designated point of contact for all TFC and
10.3 HISTORICALLY UNDERUTILIZED BUSINESSES
(HUBS). In accordance with State law, it is TFC’s policy to assist
HUBs, whether minority or women owned, whenever possible, to participate in
providing goods and services to the agency. TFC encourages those parties with
whom it does business for the provision of goods and services to adhere to this
same philosophy in selecting subcontractors to assist in fulfilling Vendor's
obligations with TFC. If Vendor subcontractors with others for some or all
of the services to be performed under this Purchase Order, Vendor shall comply
with all HUB requirements pursuant to Texas Government Code, Chapter 2161 as
described in the HUB Subcontracting Plan. In addition to information
required by Section 10.2 above, Vendor shall provide TFC with pertinent details
of any participation by a HUB in fulfilling the duties and obligations arising
hereunder on a HSP Progress Assessment Report (hereinafter referred to as
“PAR”), attached hereto and incorporated herein for all purposes. PARs
shall be submitted monthly with each invoice and are a condition of payment.
10.4 PAYMENT OF SUBCONTRACTORS. As
provided by Section 2251.022 of the Texas Government Code, Vendor shall pay a
subcontractor its appropriate share of a payment received by TFC not later than
the tenth (10th) day after the date Vendor received payment.
11.1 PERFORMANCE WARRANTY. All work
performed under this Purchase Order shall be in accordance with applicable terms
and conditions of this Purchase Order and of local codes and ordinances and any
other authority having lawful jurisdiction. Vendor shall guarantee all work
included in the Purchase Order against any defects in workmanship and shall
satisfactorily correct, at no cost to TFC, any such defect that may become
apparent within a period of one (1) year after completion of work. The
warranty period shall commence upon the date of acceptance by TFC.
11.2. MATERIAL WARRANTY. All material
furnished under this Purchase Order is guaranteed by Vendor to be in compliance
with this Purchase Order, fit and sufficient for the purpose intended, new and
free from defects. Materials furnished under this Purchase Order shall be
the latest improved product in current production, as offered to commercial
trade, and shall be of quality material. Used, shopworn, demonstrator,
prototype, reconditioned, or discontinued products or material are not
acceptable. The warranty period for Vendor-provided materials shall be for
a period of one (1) year after completion of the installation or within the
manufacturer’s warranty, whichever is longer. The warranty period shall
commence upon date of acceptance by TFC.
11.3 NO LITIGATION WARRANTY. Vendor
represents and warrants that it is not a party to or otherwise substantively
involved in any matter involving litigation, or any administrative or regulatory
proceeding, which, if decided adversely to Vendor's interests, could be
reasonably expected to adversely affect Vendor's ability to fully and timely
perform all of its obligations under this Purchase Order. Vendor agrees that in
the event any action, event or circumstance occurs, that could be reasonably
expected to adversely affect Vendor's ability to fully and timely perform all of
its obligations under this Purchase Order, Vendor shall provide written notice
to TFC of such action, event or circumstance, and shall continue to update TFC
in writing every thirty (30) days thereafter of the status of the action, event
or circumstance, until otherwise directed by TFC.
11.4 WARRANTY ON SAFETY AND HEALTH
REQUIREMENTS. Vendor shall procure, at Vendor’s expense, all
necessary and required licenses and permits necessary for the performance of
this Purchase Order. Vendor represents and warrants that the services
provided under this Purchase Order comply with all applicable federal health and
safety standards, including but not limited to, OSHA, and all Texas health and
XII. MISCELLANEOUS PROVISIONS.
12.1 NOTICES. Any notice required or
permitted to be delivered under this Purchase Order shall be deemed delivered
when deposited in the United States mail, postage prepaid, certified mail,
return receipt requested, addressed to Vendor at the address provided on the
response and to TFC at the address set forth below:
TFC: Texas Facilities Commission
Attention: Legal Services
1711 San Jacinto Blvd., Room 400
Phone: (512) 463-3446
Fax: (512) 236-6171
Notice given in any other manner shall be deemed effective only if
and when received by the party to be notified. Either party may change its
address for notice by written notice to the other party as herein provided.
12.2 SECURITY AND IDENTIFICATION. Vendor
shall abide by all procedures and rules as conveyed by TFC regarding security
requirements of the building where work is to be performed. All Vendor's and
Subcontractor’s personnel must wear uniform clothing to identify the company for
which they work.
12.3 VENDOR ACCESS. Access routes,
entrance gates or doors, parking and storage areas, and other necessary
Contactor access, along with any imposed time limitations shall be designated by
TFC. Vendor shall conduct operations in strict observation of the access
routes and other areas established. Under no circumstances shall any of
Vendor's employees, vehicles, or equipment enter or move upon any area not
authorized by TFC for access by Vendor.
12.4 EXAMINATION OF PREMISES.
Vendor shall be held to have examined all properties at which the work will take
place and to be familiar with the conditions under which the work will be
accomplished. Vendor shall inspect existing conditions prior to commencing
work, including elements subject to damage or movement during the performance of
services under this Purchase Order.
12.5 EXISTING UTILITIES AND STRUCTURES.
Vendor shall adequately protect the work, TFC’s property, adjacent property and
the public. In the event of damage to facilities as a result of Vendor’s
operations, Vendor shall take immediate steps to notify TFC and subsequently
repair or restore all services to the satisfactory approval of TFC.
Further, Vendor shall engage any additional outside services which may be
necessary to facilitate repairs until services are restored. All costs
involved in making repairs and restoring disrupted services shall be at the
expense of Vendor, and Vendor shall be fully responsible for any and all claims
resulting from the damage. TFC may elect to perform such repairs and
deduct the cost of such repairs, replacements, and outside services from amounts
due to Vendor. Upon the approval of TFC, Vendor shall have permission to utilize
air, water, gas, steam, electricity, and similar items of expense from existing
resources on TFC property.
12.6 WASTE REMOVAL. Vendor will be
allowed to store materials and equipment in performance of the Purchase Order
only if space is available in each building and approved by TFC. Vendor shall
keep the premises clean on a continual basis, and no trash or debris will be
permitted to accumulate in work areas. Vendor shall be responsible for
removal and disposal of all waste packaging material associated with services
being performed which may include, if applicable, the rental of a waste
receptacle associated with this Purchase Order. If needed, site placement
of the waste receptacle shall be approved by TFC.
12.7 SMOKING. All TFC facilities are
nonsmoking buildings. Vendor’s employees are prohibited from smoking in
all areas except in areas designated for smoking.
12.8 FEDERAL, STATE, AND LOCAL
REQUIREMENTS. Vendor shall demonstrate on-site compliance with the
Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the
Revenue Act of 1978, dealing with issuance of Form W-2’s to common law
employees. Vendor is responsible for both federal and State unemployment
insurance coverage and standard Workers' Compensation Insurance coverage.
Vendor shall comply with all federal and State tax laws and withholding
requirements. The State of Texas shall not be liable to Vendor or its
employees for any unemployment or workers’ compensation coverage, or federal or
State withholding requirements. Vendor shall indemnify the State of Texas
and shall pay all costs, penalties, or losses resulting from Vendor’s omission
or breach of this Section.
12.9 DRUG FREE WORK PLACE. Vendor shall
comply with the applicable provisions of the Drug-Free Work Place Act of 1988
(Public Law No. 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 Vendor, Vendor’s employees, and Subcontractors
shall comply with the relevant provisions thereof, including any amendments to
the final rule that may hereafter be issued.
12.10 RELATIONSHIP OF THE PARTIES. Vendor
is associated with TFC only for the purposes and to the extent specified in this
Purchase Order, and with respect to performance of the services pursuant to this
Purchase Order, Vendor is and shall be an independent contractor. Subject only
to the terms of this Purchase Order, Vendor shall have the sole right to
supervise, manage, operate, control, and direct performance of the details
incident to its duties under this Purchase Order. Nothing contained in
this Purchase Order shall be deemed or construed to create a partnership or
joint venture, to create relationships of an employer-employee or
principal-agent, or to otherwise create any liability for TFC whatsoever with
respect to the indebtedness, liabilities, and obligations of Vendor or any other
party. Vendor shall be solely responsible for, and TFC shall have no
obligation with respect to:
(i) withholding of income taxes, FICA or any other
taxes or fees;
(ii) industrial or workers' compensation insurance
(iii) participation in any group insurance plans
available to employees of the State of Texas;
(iv) participation or contributions by the State of
Texas to the State Employees Retirement System;
(v) accumulation of vacation leave or sick leave;
(vi) unemployment compensation coverage provided by
12.11 NAME AND ORGANIZATIONAL CHANGES.
(a) Vendor must provide TFC with written notification of all name changes
and organizational changes relating to Vendor including, but not limited to,
merger, acquisition or sale no later than ten (10) business days of such
change. Vendor, in its notice, shall describe the circumstances of the
name change or organizational change, state its new name, provide the new Tax
Identification Number, and describe how the change will impact its ability to
perform under the Purchase Order. If the change entails personnel changes for
personnel performing the responsibilities of the Purchase Order for Vendor,
Vendor shall identify the new personnel and provide resumes to TFC, if resumes
were originally required by the solicitation. TFC may request other
information about the change and its impact on the Purchase Order and Vendor
shall supply the requested information within five (5) working days of receipt
of the request. All written notifications of organizational change must
include a detailed statement specifying the change and supporting documentation
evidencing continued right of Vendor or successor entity, as applicable, to
maintain its status as a party to this Purchase Order.
(b) TFC may terminate the Purchase Order due to any
change to Vendor that materially alters Vendor’s ability to perform under the
12.12 FORCE MAJEURE. Any delays in or
failure of performance by either party, except in respect of the obligation of
payments under this Purchase Order, shall not constitute default hereunder if
and to the extent such delays or failure of performance are caused by
occurrence(s) beyond the reasonable control of the party affected, and which by
the exercise of due diligence such party is unable to prevent, herein called
“Force Majeure”, including acts of God or the public enemy, sabotage, war,
mobilization, revolution, civil unrest, riots, strikes, lockouts, fires,
accidents, breakdowns, or floods, earthquakes, hurricanes or any other natural
disaster or governmental actions. In any such event, the party claiming
Force Majeure shall promptly notify the other party of the Force Majeure event
in writing and, if possible, such notice shall set forth the extent and duration
thereof. The party claiming Force Majeure shall exercise due diligence to
prevent, eliminate, or overcome such Force Majeure event where it is possible to
do so and resume performance at the earliest possible date. However, if
non-performance continues for more than thirty (30) days, TFC may terminate this
Purchase Order immediately upon written notification to Vendor.
12.13 ELECTRONIC AND INFORMATION RESOURCES
ACCESSIBILITY STANDARDS. (a) Effective September 1, 2006,
all state agencies and institutions of higher education shall procure products
which comply with the State of Texas accessibility requirements for electronic
and information resources specified in Title 1 of the Texas Administrative Code,
Chapter 213 when such products are available in the commercial marketplace or
when such products are developed in response to a procurement solicitation.
(b) If applicable, Vendor shall provide the Texas
Department of Information Resources (“DIR”) with the universal resource locator
(“URL”) to its Voluntary Product Accessibility Template (VPAT) for reviewing
compliance with the State of Texas Accessibility requirements (based on the
federal standards established under Section 508 of the Rehabilitation Act), or
indicate that the product/service accessibility information is available from
the General Services Administration “Buy Accessible Wizard” (<A
Vendors not listed with the “Buy Accessible Wizard” or supplying a URL to their
VPAT must provide DIR with a report that addresses the same accessibility
criteria in substantively the same format. Additional information regarding the
“Buy Accessible Wizard” or obtaining a copy of the VPAT is located at <A
12.14 BUY TEXAS. If Vendor is authorized
to make purchases under this Purchase Order, Vendor certifies that Vendor will
buy Texas products, services, and materials when available at a comparable price
and in a comparable period of time pursuant to Texas Government Code Ch.
12.15 PATENT, TRADEMARK, COPYRIGHT AND OTHER
INFRINGEMENT CLAIMS. Vendor shall indemnify, save and hold
harmless the State of Texas from and against claims of patent, trademark,
copyright, trade secret or other proprietary rights, violations or infringements
arising from the State’s or Vendor’s use of or acquisition of any services or
other items provided to the State of Texas by Vendor or otherwise to which the
State of Texas has access as a result of Vendor’s performance under this
Purchase Order, provided that the State shall notify Vendor of any such claim
within a reasonable time of the State’s receiving notice of any such
claim. If Vendor is notified of any claim subject to this section, Vendor
shall notify TFC of such claim within five (5) business days of such
notice. No settlement of any such claim shall be made by Vendor without
TFC’s prior written approval. Vendor shall reimburse the State of Texas
for any claims, damages, losses, costs, expenses, judgments or any other
amounts, including, but not limited to, attorneys' fees and court costs, arising
from any such claim. Vendor shall pay all reasonable costs of the State’s
counsel and shall also pay costs of multiple counsels, if required to avoid
conflicts of interest. Vendor represents that it has determined what
licenses, patents and permits are required under this Purchase Order and has
acquired all such licenses, patents and permits.
12.16 EQUAL OPPORTUNITY. Vendor shall not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, age, or national origin. Vendor shall take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment without regard to their race, color, sex, religion, age, or
national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. Vendor
agrees to post in conspicuous places, available to employees or applicants for
employment, notices to be provided setting forth the provisions of this
non-discrimination article. Vendor shall include the above provisions in all
subcontractors pertaining to the work.
12.17 LIABILITY FOR TAXES. Vendor
represents and warrants that it shall pay all taxes or similar amounts resulting
from this Purchase Order, including, but not limited to, any federal, state, or
local income, sales or excise taxes of Vendor or its employees. TFC shall
not be liable for any taxes resulting from this Purchase Order.
12.18 IMMIGRATION REFORM. The Immigration
Reform and Control Act of 1986, as amended, the Immigration Act of 1990, and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, require
that all employees provide proof of identity and employment eligibility before
they can work in the United States. TFC is committed to complying with all
applicable immigration laws of the United States and requires compliance by its
contractors and subcontractors. Vendor shall not place any employee of Vendor at
a worksite, nor shall Vendor permit any employees, nor any employee of its
subcontractors to perform any work on behalf of, or for the benefit of, TFC
without first ensuring said employee’s authorization to lawfully work in the
12.19 MINIMUM WAGE RATE REQUIREMENTS. Notwithstanding
any other provision of this Purchase Order, Vendor hereby represents and
warrants that Vendor shall pay to each of its employees a wage not less than
what is currently known as the "Federal Minimum Wage" and any increase or
amendments thereto. Furthermore, Vendor shall produce proof of compliance
with this provision by Vendor to TFC. TFC shall withhold payments due to
Vendor until Vendor has complied with this provision. Prior to any payment
being made for work satisfactorily completed and accepted, Vendor shall submit
Wage Rate Affidavits with its billing documents affirming that all employees
have been paid not less than the current "Federal Minimum Wage.”
12.20 SEVERABILITY. If any provision
contained in this Purchase Order is held to be unenforceable by a court of law
or equity, this Purchase Order shall be construed as if such provision did not
exist and the non-enforceability of such provision shall not be held to render
any other provision or provisions of this Purchase Order unenforceable.
12.21 PROPER AUTHORITY. The parties
hereto represent and warrant that the person execut¬ing this Purchase Order on
behalf of each party has full power and authority to enter into this Purchase
Order. Vendor acknowledges Purchase Order is effective for the period of
time specified in the Purchase Order. Any services performed by Vendor
before this Purchase Order is effective or after it ceases to be effective are
performed at the sole risk of Vendor.
12.22 LABOR ACTIVITY. If any strike,
boycott, picketing, work stoppage, slowdown, or other labor activity is directed
against the Vendor at TFC’s facility, which results in the curtailment or
discontinuation of services performed herein, TFC shall have the right during
said period to employ any means legally permissible to have the work
12.23 COUNTERPARTS. This Purchase Order
may be executed in any number of counterparts, each of which shall be an
original, and each such counterpart shall together constitute but one and the
12.24 NO WAIVER. Nothing in this Purchase
Order shall be construed as a waiver of sovereign immunity by the State of
Texas. This Purchase Order shall not constitute or be construed as a
waiver of any of the privileges, rights, defenses, remedies, or immunities
available to the State of Texas. The failure to enforce, or any delay in
the enforcement, of any privileges, rights, defenses, remedies, or immunities
available to the State of Texas under this Purchase Order 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. TFC does
not waive any privileges, rights, defenses, or immunities available to TFC by
entering into this Purchase Order or by its conduct prior to or subsequent to
entering into this Purchase Order.
12.25 FALSE STATEMENTS; BREACH OF
REPRESENTATIONS. By signature to this Purchase Order, Vendor makes
all the representations, warranties, guarantees, certifications and affirmations
included in this Purchase Order. If Vendor signs this Purchase Order with
a false statement or it is subsequently determined that Vendor has violated any
of the representations, warranties, guarantees, certifications or affirmations
included in this Purchase Order, Vendor shall be in default under this Purchase
Order, and TFC may terminate or void this Purchase Order for cause and pursue
other remedies available to TFC under this Purchase Order and applicable
12.26 ENTIRE PURCHASE ORDER &
MODIFICATION. This Purchase Order and its integrated attachment(s)
constitute the entire agreement of the parties and such are intended as a
complete and exclusive statement of the promises, representations, negotiations,
discussions, and other agreements that may have been made in connection with the
subject matter hereof. Unless an integrated attachment to this Purchase
Order specifically displays a mutual intent to amend a particular part of this
Purchase Order, general conflicts in language between any such attachment and
this Purchase Order shall be construed consistently with the terms of this
Purchase Order. Unless otherwise expressly authorized by the terms of this
Purchase Order, no modification, renewal, extension or amendment to this
Purchase Order shall be binding upon the parties unless the same is in writing
and signed by the respective parties hereto.