DARS Standard Procurement Terms and Conditions

VENDOR (CONTRACTOR) AND BUYER (DARS DEPARTMENT) AGREE:

A. SHIPMENT AND DELIVERY

VENDOR TO PACKAGE GOODS. Vendor at Vendor's cost will package goods in accordance with commercial practice to secure the lowest appropriate transportation cost, with requirement of the common carrier and with applicable specifications. Each shipping container shall be clearly and permanently marked as follows: (i) Vendor's name and address, (ii) Buyer's name and the address of the place of delivery (iii) purchase order or purchase release number, if applicable, (iv) container number and total number of containers, for example, "box 1 of 4 boxes," and (v) the container bearing the packing list. Buyer's count or weight shall be conclusive on shipments not accompanied by packing list.
SHIPMENT UNDER RESERVATION PROHIBITED. Vendor shall not ship goods under reservation. No tender of a bill of lading will operate as a tender of goods.
TITLE AND RISK OF LOSS. Title and risk of loss of goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the place of delivery.
TRANSPORTATION CHARGES. F.O.B. Destination. Freight Prepaid and Allowed unless delivery terms are specified otherwise. If quoted delivery terms do not include transportation costs, BUYER shall reimburse Vendor for transportation costs in the amount specified in Vendor's quote or bid, or actual costs, which ever is lower. If transportation costs are based on actual costs, a copy of the freight bill showing actual charges for the shipment must be attached to the invoice. BUYER shall have the right to designate what method of transportation shall be used to ship the goods.
SUBSTITUTIONS. No substitutions permitted without prior written approval of BUYER.
PLACE OF DELIVERY. The place of delivery shall be that set forth in the block of the purchase order or purchase release entitled "Ship To". Any change shall be effected by addendum/amendment/purchase order change notice (POCN)/modification as provided for in Clause E5, "Modifications," hereof. The terms of this contract are "no arrival, no sale".
TIME OF DELIVERY. Delivery shall be made during normal working hours only, unless prior written approval has been obtained from BUYER.
INSPECTION AND TESTS. All goods will be subject to inspection and test by BUYER. Tests shall be performed on samples submitted with the bid or quote, if requested, or on samples taken from regular shipment. All costs shall be borne by the endor in the event goods fail to meet or exceed all conditions and requirements. Goods delivered and rejected in whole or in part may, at BUYER'S option, be returned to the vendor or held for disposition at Vendor's expense. Latent defects may result in revocation of acceptance.
NEW AND UNUSED. Unless otherwise specified, all goods will be new and unused and of current production.
DELAY. If delay is foreseen, Vendor shall give written notice to BUYER. Vendor must keep the BUYER advised at all times of status of order. Default on promised delivery (without accepted reasons) or failure to meet specifications authorizes BUYER to purchase goods or services elsewhere and charge full increase, if any, in cost and handling to defaulting vendor.

B. PAYMENT

INVOICES AND PAYMENT. BUYER will pay Vendor by check or warrant in accordance with Chapter 2251 of the Texas Government Code following satisfactory delivery and acceptance of products or services and the BUYER'S receipt of a properly completed invoice. Each invoice must include: the Vendor's name, address, and telephone number; the Purchase Order number; the Vendor's State Comptroller tax identification number; identification of items and services; and quantity(ies), applicable unit prices, extended prices and invoice total. Vendor shall submit one original and one copy of the invoice. Transportation costs shall be included in the invoice, if applicable, and a copy of the freight bill shall be included if transportation costs are based on actual costs. Copies of the bill of lading and the freight waybill shall be included when applicable. Invoices shall be mailed to: Accounting Operations, at the invoice address shown on the face of the purchase order. Vendor shall advise the Accounting Operations, in writing, of any changes in remittance address.
TAXES. Pursuant to Texas Tax Code 151.309, relating to Government Entities, the BUYER is exempt from most sales, excise and use taxes. BUYER shall furnish tax-exemption certificates upon request. Vendor shall not collect or pay taxes for which exemption certificates have been furnished.
PRICE INCREASE. If prices are higher than specified in the purchase order, the prices must be approved by BUYER in writing prior to shipment. No invoice will be paid in excess of the net amount of the purchase order.
WITHHOLDING/RECOUPMENT OF PAYMENTS: BUYER may withhold or recoup payments due or paid under this Contract, in whole or in part, in the event of Vendor's noncompliance with any term or provision of this Contract or with any Federal or state law or regulation relating to Vendor's performance under this Contract.
STATE DEBT OR DELINQUENT TAXES: If a debt or delinquent taxes prohibit the State Comptroller from issuing a warrant, the vendor agrees that any payments as a result of this contract will be applied to the debt or delinquent taxes until they are paid in full.

C. WARRANTIES

PRICE. The prices to be paid by the BUYER shall be those contained in Vendor's quote, bid or offer and Vendor warrants that such prices are no higher than Vendor's current prices on orders by other purchasers for products or services of the kind and specifications covered by this agreement for similar quantities under similar or like conditions and methods of purchase. If Vendor breaches this warranty, the prices of the items shall be reduced to the Vendor's current prices on orders by other purchasers, or BUYER may cancel this purchase order without liability to Vendor.
PRODUCT. Vendor shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the BUYER. Vendor warrants the goods furnished will conform to the specifications, drawings, and descriptions accompanying or referred to in the bid invitation, request for offers or bidder's quotation and to any samples furnished by Vendor, if any, and shall be fit for BUYER'S purposes. In the event of a conflict between the specifications, drawings and descriptions, the specifications shall govern. Manufacturer's standard warranty shall apply unless otherwise specified.
SAFETY. All electrical items must meet all applicable OSHA standards and regulations, and bear the appropriate listing from UL, FMRC or NEMA. Vendor warrants the goods conform to any standards promulgated by the U.S. Department of Labor under the Occupational Health and Safety Act of 1970 or other applicable standards.
PATENTS OR COPYRIGHTS. The vendor agrees to protect BUYER from claims involving infringement of existing licenses, patents or copyrights.
WARRANTY OF TITLE. Vendor warrants that the title to all material, supplies and equipment furnished is free of liens and encumbrances.

D. DEFAULT, TERMINATION

TERMINATION. The performance of work under this order may be terminated in whole or in part by the BUYER by the delivery to the Vendor of a written "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. BUYER shall not be liable to Vendor for any work done or materials purchased after such termination or for lost profits or other damages. Such right of termination is in addition to and not in lieu of rights of BUYER otherwise set forth in this contract.
FORCE MAJEURE. If either party is delayed in carrying out its obligations under this contract because of acts of God, war, riot or labor stoppages, the party shall give notice and full particulars of such delay supported by sufficient evidence in writing to the other party within a reasonable time after occurrence of the delay. The time for performance by the party shall be extended by the number of days of the delay, except as hereinafter provided.
RIGHT TO ASSURANCE. Whenever BUYER has reason to question the Vendor's intent to perform, BUYER may demand that the Vendor give written assurance of intent to perform. In the event that a demand is made, and no assurance is given within five (5) days, BUYER may treat this failure as an anticipatory repudiation of the Contract.

E. GENERAL PROVISIONS

ENTIRE CONTRACT. This Contract constitutes the entire agreement of the parties and supersedes any prior understandings or oral or written agreements between the Vendor and the BUYER on the matters contained herein.
ASSIGNMENT. No right, interest or obligation in or under this contract shall be assigned or transferred by Vendor without the written consent of the BUYER. Any attempted assignment or transfer by Vendor without such consent shall be ineffective.
ANTI-TRUST. Vendor hereby assigns to BUYER any and all claims for overcharges associated with this contract arising under the anti-trust laws of the United States 15 U.S.C.A. Section 1, et seq. (1973), and the anti-trust laws of the State of Texas, TEX. Bus. & Comm Code Ann. Sec 15.01, et seq (1967).
ADDENDA. The addendum or addenda attached to this contract are incorporated into and are a part of this contract.
MODIFICATIONS. This contract can be modified only by a writing signed by both parties.
INTERPRETATION. This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any item used in this agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control.
APPLICABLE LAW, VENUE. This contract shall be governed, construed and interpreted under the laws of the State of Texas. Venue for any litigation arising under this contract shall lie in the Texas county of the delivery location.
INSURANCE. In the event the Vendor, its employees, agents or subcontractors enter premises occupied or under the control of BUYER in the performance of this contract, the Vendor agrees that it will maintain public liability and property damage insurance in reasonable limits covering the obligations set forth above, and will maintain worker's compensation coverage (either by insurance or if qualified pursuant to law, through a self insurance program) covering all employees performing this contract on premises occupied or under the control of BUYER.
ADVERTISING. Vendor shall not advance or publish without BUYER'S prior written consent the fact that BUYER has entered into this contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the state or Federal government.
INDEMNIFICATION. The vendor shall defend, indemnify, and hold harmless the BUYER, all of its officers, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities, arising out of, connected with, or resulting from any acts or omissions of vendor or any agent, employee, subcontractor, or supplier of vendor in the execution or performance of this contract.
Lobbying: In accordance with 3l U.S.C. § 1352 (§ 1352 of Public Law [P.L.] 101-121 effective December 22,1989), CONTRACTOR is prohibited from using funds granted under this Agreement for lobbying Congress or any Federal agency in connection with a particular contract. In addition, if at any time a contract exceeds $100,000, the law requires certification that none of the funds provided by DARS to CONTRACTOR have been used for payment to lobbyists. Regardless of funding source, if this Agreement exceeds $100,000, CONTRACTOR will provide to DARS a certification of the names of any and all registered lobbyists with whom CONTRACTOR has an agreement. This certification form is available upon request and must be forwarded to DARS along with the names of any lobbyists, if applicable, within 90 days of receipt of the executed Agreement.
SAO Audit: The vendor understands that acceptance of funds under this purchase order acts as an acceptance of the authority of the State Auditor's Office ("SAO"), or any successor agency, to conduct an investigation in connection with those funds. The vendor further agrees to cooperate fully with the SAO or its successor in the conduct of the audit or investigation, including providing all records requested. The vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through vendor and the requirement to cooperate is included in any subcontract it awards.
DISPUTE RESOLUTION. The dispute resolution process provided for in Chapter 2260 of the Texas Government Code shall be used, as further described herein, by the BUYER and the contractor to attempt to resolve any claim for breach made by the contractor.
1. A contractor's claims for breach of this contract that the parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided for in Chapter 2260, Subchapter B, of the Texas Government Code. To initiate the process, as required by Subchapter B, to the Manager, Division for Blind Services- Consumer Procurement Services, 4800 North Lamar, Suite 360, Austin, Texas 78756. Said notice shall specifically state that the provisions of Chapter 2260, Subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of BUYER and the contractor otherwise entitled to notice under the parties' contract. Compliance by the contractor with Subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, Subchapter C, of the Government Code.
2. The contested case process provided in Chapter 2260, Subchapter C, of the Government Code is the contractor's sole and exclusive process for seeking a remedy for any and all alleged breaches of contract by BUYER if the parties are unable to resolve their disputes under subparagraph (A.) of this paragraph.
3. Compliance with the contested case process provided in Subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this contract by BUYER nor any other conduct of any representative of BUYER relating to the contract shall be considered a waiver of sovereign immunity to suit.
4. Neither the occurrence of an event nor the pendency of a claim constitutes grounds for suspension of performance by the contractor, in whole or in part.
5. DEBARRED CONTRACTORS. Vendor certifies that it is not included on the Texas Building and Procurement Commission list of debarred vendors or the U.S. Comptroller General's Consolidated list of persons or firms currently debarred for violations of public contracts or the Federal EPLS database.
6. RECORD RETENTION. Vendor must retain all invoices, records and other documents pertinent to this purchase order until 4 years following expiration or termination of this purchase order, until any audits in progress at the end of the 4 year period are completed, or until any lawsuits relating to this purchase order are resolved, whichever is later.
7. COMPLIANCE: Vendor shall comply with state and federal laws, rules and regulations and to the extent that such provisions are applicable to Vendor, Vendor agrees to fully comply with Title VI Of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, The Americans with Disabilities Act of 1990 and the Age Discrimination in Employment Act.
PURCHASE AWARD PROTESTS. A potential recipient of a purchase award may protest the award if: the purchase was awarded under a formal or informal competitive procurement method and the potential recipient submitted a bid or proposal that was not selected for the award; or the purchase award was a sole-source or emergency procurement. A formal competitive procurement is a competitive procurement that has an estimated value of more than $25,000. An informal competitive procurement is a competitive procurement that has an estimated value greater than $5,000 but not exceeding $25,000.
1. AWARDS EXCLUDED FROM PROTEST. The following purchase awards may not be protested: awards that are made under a noncompetitive procurement process, including enrollment contracts; the award of grants (subrecipient contracts) or subcontracts; goods or services purchased in accordance with the Interagency Cooperation Act, Chapter 771, Government Code; or Interlocal Cooperation Act, Chapter 791, Government Code; the lease, purchase, or lease-purchase of real property; interstate or international agreements executed in accordance with applicable law; or goods or services purchased under contracts or processes administered by any other state agency.
2. NOTIFICATION OF PROTEST RIGHTS. Consumer Purchasing maintains information on DARS procedures for protesting purchase awards on the purchasing page of the DARS public Internet site. Formal Competitive Procurements: When conducting a formal competitive procurement, Consumer Purchasing posts the solicitation on the Electronic State Business Daily (ESBD), and includes with the solicitation the link to the DARS Internet site where the protest procedures are posted. When the procurement is complete, Consumer Purchasing posts awards on the ESBD. Potential recipients are responsible for checking the ESBD Web site to obtain information on solicitations and posted awards, and the DARS Internet site for information on protest procedures. When a potential recipient contacts Consumer Purchasing regarding protest procedures, Consumer Purchasing may provide it with the DARS Internet site where the protest procedures are posted, if needed; may further explain the protest procedures, if needed; and documents the communications in the procurement file. Informal Competitive Procurements: When bids or proposals are being solicited under an informal competitive procurement, Consumer Purchasing notifies potential recipients in writing (such as facsimile) or by phone of the day and time that a bid or quote response is due, and decision will be made regarding the purchase award, and documents the communication in the procurement file. Potential recipients are responsible for contacting Consumer Purchasing regarding the status of the award, and for checking the DARS Internet site for information on protest procedures. Consumer Purchasing notifies the intended recipient of the intent to award, but does not routinely notify respondents who are not awarded the purchase. If a potential recipient is not selected under an informal competitive procurement and the potential recipient notifies Consumer Purchasing that it wishes to protest, Consumer Purchasing provides it with the DARS Internet site where the protest procedures are posted, may further explain the protest procedures, if needed, and documents the communication in the procurement file.
3. PROTEST LIMITATIONS. A protest is limited to matters concerning the protester's qualifications,suitability of goods or services offered by the protester, or alleged irregularities in the procurement process.
4. PROTEST SUBMISSION REQUIREMENTS. All protests must be in writing; signed by the protester or the protester's authorized representative; and submitted to the DARS designated purchaser. All protests must include the protester's company name; the action that the protester is requesting be reconsidered; how the decision, action, or inaction by DARS violated published DARS policy, or state or federal laws and regulations regarding procurement; the protester's claim, with specific supporting information such as references to pertinent parts of the original request for proposal, offer, bid, or award documents; an explanation of the facts under disagreement; and the subsequent action the protester is requesting. When a protest is made under a formal competitive procurement, the protester must deliver the written protest to the designated purchaser by hand; certified mail, return receipt requested; facsimile; or other verifiable delivery service. When a protest is made under an informal competitive procurement, the protester must deliver the written protest to the designated purchaser by email, hand, facsimile, or other verifiable delivery service.
5. PROHIBITION ON AWARDING PURCHASES THAT ARE UNDER PROTEST. When a protester has complied with all protest requirements, DARS does not award the purchase until the Procurement and Business Services (PBS) director makes a decision regarding the protest and sends the protester a written disposition. Exceptions to awarding purchases that are under protest are as follows: DARS may award a purchase when there is a pending protest if: there is a documented bona fide emergency, (defined as: Emergency Purchase a purchase of goods or services required as a direct result of a bona fide emergency that constitutes an immediate threat to public health or safety or which creates an imminent risk of loss to the purchasing entity that the entity documents and justifies in the procurement record. Despite the existence of a bona fide emergency, a purchasing entity must use its best efforts to conduct the procurement with as much competition as is practical under the circumstances), or state or federal laws require a contract to be awarded by a particular date.
6. PROTEST DISPOSITION PROCEDURES FOR FORMAL COMPETITIVE PROCUREMENTS. Under a formal competitive procurement, DARS must receive a protest no later than seven calendar days after DARS' notice of decision to execute a purchase award. When DARS has decided who will receive a purchase award, the purchasing staff notifies the recipient that it is the tentative recipient of the award, barring any protest. Staff members may take steps to finalize the award; however, they must not actually finalize the award or process the purchase order until the seven-day protest period has expired. If a purchaser does not receive a protest that meets all submission requirements within the seven-day protest period, staff members may complete the award and process the purchase order. If a purchaser receives a protest that meets all submission requirements within the seven-day protest period, staff members may not complete the award or process the purchase order until the PBS director sends the protester a written disposition. The DARS designated purchaser forwards to the PBS director, within five to seven calendar days of receiving the protest, the following: documents submitted by the protestor, and DARS documents that refute the protestor's allegations, and support DARS' award actions and decisions. The PBS director may request additional oral or written information from the protester or DARS staff to evaluate the protest. The PBS director limits the review of the protest to a desk review of the materials supplied by the protester and the DARS staff member who made the award decision, and any supplemental oral or written information provided by the protester or DARS staff member. Within 30 calendar days of receiving the written protest, the PBS director conducts a desk review of the protest documents; obtains supplemental, oral, or written information from the protester or DARS staff, if needed, to evaluate the protest; makes a final determination; sends the protester a written determination; and sends a copy of the written determination to the DARS designated purchaser. After DARS makes a decision on a protest, DARS does not take any further administrative action on the protest.
7. PROTEST DISPOSITION PROCEDURES FOR INFORMAL COMPETITIVE PROCUREMENTS Under an informal competitive procurement, DARS must receive a protest no later than 24 hours, excluding weekends, and state and federal holidays, after the date and time by which the Consumer Purchasing staff told potential recipients that a decision would be made on the award. When DARS has decided who will receive a purchase award, the purchasing staff notifies the recipient that it is the tentative recipient of the award, barring any protest. Staff members may take steps to finalize the award; however, they must not actually complete the award or process the purchase order until the 24-hour protest period has expired. If a purchaser does not receive a protest that meets all submission requirements within the 24-hour protest period, the staff may complete the award and process the purchase order. If a purchaser receives a protest that meets all submission requirements within the 24-hour protest period, the staff may not complete the award or process the purchase order until the PBS director sends the protester a written disposition. The designated purchaser forwards to the PBS director, within one workday of receiving the protest, the following: documents submitted by the protestor, and DARS documents that refute the protestor's allegations, and support DARS' award actions and decisions. The PBS director may request additional oral or written information from the protester or DARS staff to evaluate the protest. The PBS director limits the review of the protest to a desk review of the materials supplied by the protester and the DARS staff member who made the award decision, and any supplemental oral or written information provided by the protestor or DARS staff member. Within one workday of receiving the written protest, the PBS director conducts a desk review of the protest documents; obtains supplemental, oral, or written information from the protester or DARS staff if needed, to evaluate the protest; makes a final determination; sends the protester a written determination; and sends a copy of the written determination to the DARS designated purchaser. After DARS makes a decision on a protest, DARS does not take any further administrative action on the protest.
8. PROTEST DISMISSAL. DARS dismisses a protest if the protester does not comply with all protest requirements.
9. DIFFERENCES BETWEEN FORMAL AND INFORMAL COMPETITIVE PROCUREMENT PROTESTS. The following chart is a synopsis of the differences in the protest procedures used for formal and informal competitive procurements.
  1. Formal Competitive Procurement
    Consumer Purchasing posts the solicitation on the Electronic State Business Daily (ESBD), and includes with the solicitation, the link to the DARS Internet site where the protest procedures are posted
    
    Consumer Purchasing posts awards on the ESBD.
    
    Potential recipients are responsible for checking the ESBD Web site for information on
    - solicitations and protest procedures, including the DARS Internet site where the protest procedures are posted, and
    - posted awards.
    DARS must receive the protest no later than 7 calendar days after DARS' notice of decision to execute a purchase award.
  2. Informal Competitive Procurement
    When bids or proposals are being solicited, Consumer Purchasing notifies potential recipients of the day and time that a bid or response is due and a decision will be made regarding the purchase award.
    
    Consumer Purchasing notifies the intended recipient of the intent to award.
    
    Potential recipients are responsible for contacting Consumer Purchasing to obtain information on
    - the status of the award, and
    - protest procedures, if needed.
    DARS must receive a protest no later than 24 hours, excluding weekends, and state and federal holidays, after the date and time by which the Consumer Purchasing staff told potential recipients that a decision would be made on the award.

F. PROHIBITED CONDITIONS

PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS. Employees and officers of BUYER and its contractors and subcontractors must not participate in the selection, award or administration of a contract paid with funds received from or through BUYER if a conflict of interest, real or apparent, is involved. A conflict of interest arises anytime such an employee or officer has a financial interest or other interest, e.g. dual employment, in the entity selected for an award, and the existence of such conflict of interest will result in a voided contract.
FORMER EMPLOYMENT. In accordance with Texas Government Code, Section 2252.901, Vendor certifies that it has not been an employee or officer of the Buyer within one year of the execution of this contract.
REPRESENTATION BY FORMER OFFICER OR EMPLOYEE OF REGULATORY AGENCY RESTRICTED; CRIMINAL OFFENSE. A. In accordance with Texas Government Code, Section 572.054, the following former BUYER employees may not represent Offeror or receive compensation for services rendered on behalf of Offeror regarding a particular matter in which the employee participated during his or her period of BUYER employment, either through personal involvement or because the matter was within the employee's official responsibilities: Employees who ceased employment with BUYER on or after January 1, 1992, who were compensated as of the last date of BUYER employment at or above the amount prescribed by the General Appropriations Act for salary group 17, Schedule A or salary group 9, Schedule B, of the position classification salary schedule. B. Any entity that is represented by or that compensates a former BUYER employee described in Section A is not eligible to be awarded this Contract. Offeror certifies that it is not ineligible to be awarded this Contract under this Section B.
GRATUITIES. The BUYER may, by written notice to the Vendor, cancel this contract without liability to Vendor if it is determined by BUYER that Vendor gave, offered to give or 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 quote, bid, or offer.
COLLUSION. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage or contingency fee except bona fide employees of bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business and has disclosed to BUYER prior to the date of this contract. For breach of this warranty, BUYER may, in addition to any other rights it may have, deduct from the contract price or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee, cancel this contract without liability to Seller.