DARS Standard Procurement Terms and Conditions

All Purchase Orders issued by DARS that do not reference an established bi-lateral contract or a solicitation that contains a set of terms and conditions will be governed by these Procurement Terms and Conditions. Purchase Orders that reference a bilateral contract or a solicitation, which contain a set of terms and conditions, shall be governed by the terms and conditions of the bi-lateral contract or solicitation.

Revision Date: 03/11/2013

CONTRACTOR AND DARS AGREE:

A. SHIPMENT AND DELIVERY

PACKAGING AND LABELING. Contractor at Contractor'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) Contractor's name and address, (ii) Contractor’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. Contractor’s count or weight shall be conclusive on shipments not accompanied by packing list.
SHIPMENT UNDER RESERVATION PROHIBITED. Contractor 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 DARS until DARS 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, DARS shall reimburse Contractor for transportation costs in the amount specified in Contractor's quote or bid, or actual costs, whichever 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. DARS 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 DARS.
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. The terms of this contract are "no arrival, no sale".
TIME OF DELIVERY. Delivery shall be made during DARS normal working hours only, unless prior written approval has been obtained from DARS.
INSPECTION AND TESTS. All goods will be subject to inspection and test by DARS. 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 Contractor in the event goods fail to meet or exceed all conditions and requirements. Goods delivered and rejected in whole or in part may, at DARS' option, be returned to the Contractor or held for disposition at Contractor'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.
LATE DELIVERY. If delay is foreseen, Contractor shall give written notice to DARS. Contractor must keep DARS advised at all times of status of order. Default on promised delivery (without accepted reasons) or failure to meet specifications authorizes DARS to purchase goods or services elsewhere and charge full increase, if any, in cost and handling to defaulting Contractor.

B. PAYMENT

INVOICES AND PAYMENT. Payments will be made in accordance with the Prompt Payment Act provided in Texas Government Code, Title 10, Subtitle D, Section 2251 following satisfactory delivery and acceptance of products or services and DARS' receipt of a properly completed invoice. Each invoice must include: the Contractor's name, address, and telephone number; the Purchase Order number; the Contractor's State Comptroller tax identification number; identification of items and services; quantity(ies), applicable unit prices, extended prices, invoice total, shipment date of merchandise and date of purchase order. Contractor 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: Accounts Payable, at the invoice address shown on the face of the purchase order. Contractor shall advise the Accounts Payable, in writing, of any changes in remittance address.
TAXES. Pursuant to Texas Tax Code 151.309, relating to Government Entities, DARS is exempt from most sales, excise and use taxes. DARS shall furnish tax-exemption certificates upon request. Contractor 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 DARS in writing prior to shipment of goods or delivery of services. No invoice will be paid in excess of the net amount of the purchase order.
WITHHOLDING/RECOUPMENT OF PAYMENTS: DARS may withhold or recoup payments due or paid under this Contract, in whole or in part, in the event of Contractor's noncompliance with any term or provision of this Contract, any Federal or state law or regulation, or any DARS rules or standards, including but not limited to requirements specifically stated in this contract, relating to Contractor's performance under this Contract.
STATE DEBT OR DELINQUENT TAXES: If the Contractor is indebted to or owes delinquent taxes to the state, pursuant to §403.0551 of the Government Code, any payments owed to the Contractor under this contract will be applied toward elimination of the Contractor's indebtedness to the state, delinquency in payment of taxes to the state, or delinquency in payment of taxes that the comptroller administers or collects until the indebtedness or delinquency is paid in full.

C. WARRANTIES

PRICE. The prices to be paid by the DARS shall be those contained in Contractor's quote, bid or offer and Contractor warrants that such prices are no higher than Contractor'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 Contractor breaches this warranty, the prices of the items shall be reduced to the Contractor's current prices on orders by other purchasers, or DARS may cancel this purchase order without liability to Contractor.
PRODUCT. Contractor shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of DARS. Contractor warrants the goods furnished will conform to the specifications, drawings, and descriptions accompanying or referred to in the bid invitation or bidder's quotation and to any samples furnished by Contractor, if any, and shall be fit for DARS' 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. Contractor 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 Contractor agrees to protect DARS from claims involving infringement of existing licenses, patents or copyrights.
WARRANTY OF TITLE. Contractor 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 DARS by the delivery to the Contractor 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. DARS shall not be liable to Contractor 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 DARS otherwise set forth in this contract.
FORCE MAJEURE. DARS may grant relief from performance of the contract if the Contractor is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the Contractor. The burden of proof for the need of such relief shall rest upon the Contractor. To obtain release based on force majeure, the Contractor shall file a written request with DARS.
RIGHT TO ASSURANCE. Whenever DARS has reason to question the Contractor's intent to perform, DARS may demand that the Contractor give written assurance of intent to perform. In the event that a demand is made, and no assurance is given within five (5) days, DARS may treat this failure as an anticipatory repudiation of the Contract.

E. GENERAL PROVISIONS

ENTIRE CONTRACT. This Contract represents the entire agreement of the parties. Any changes, deletions, extensions or amendments to this contract shall be in writing and agreed to by both parties.
ASSIGNMENT. The Contractor will notify DARS in writing at least 60 calendar days before the intended effective date of any change in legal entity status, such as ownership or control, name change, legal status with the Texas Secretary of State, or State Comptroller's Texas Identification Number. The Contractor must not assign its DARS contract in whole or in part, or any right or duty required under the contract without prior written approval from DARS. Unless otherwise approved in writing by DARS, assignment will not release the Contractor who is the assignor from its contractual obligations.
ANTI-TRUST. In submitting a proposal, and in accepting the Contract or purchase order, Contractor certifies and agrees as follows: (1) Neither the CONTRACTOR, nor the person represented by the CONTRACTOR, nor any person acting for the represented person has: (a) violated the antitrust laws codified by Chapter 15, Business & Commerce Code, or the federal antitrust laws; or (b) directly or indirectly communicated the bid/offer associated with this contract to a competitor or other person engaged in the same line of business. (2) CONTRACTOR hereby assigns to DARS 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), as amended, and the anti-trust laws of the State of Texas, TEX. BUS. & COMM. CODE ANN. Section 15.01, et seq. (1967), as amended.
ADDENDA. The addendum or addenda attached to this contract are incorporated into and are a part of this contract.
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. This contract is being executed and delivered to the State of Texas and is intended to be performed in the State of Texas and/or on behalf of the State of Texas. This contract is subject to all applicable laws of the State of Texas. Pursuant to the validity, construction, enforcement and interpretation of this contract, Texas law shall prevail to the extent that there is conflict between the laws of Texas and the laws of another state. The venue of any suit brought as a result of the contract/agreement shall be held in any competent court of jurisdiction in the Texas county in which the goods and/or services are received.
INSURANCE. In the event the Contractor, its employees, agents or subcontractors enter premises occupied or under the control of DARS in the performance of this contract, the Contractor 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 DARS.
ADVERTISING. Contractor shall not advance or publish without DARS' prior written consent the fact that DARS 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. Contractor shall defend, indemnify, and hold harmless the State of Texas, its officers, and employees, and DARS, its officers, and employees and contractors, from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities, including without limitation attorneys’ fees and court costs, arising out of, connected with, or resulting from any acts or omissions of contractor or any agent, employee, subcontractor, or supplier of contractor in the execution or performance of this contract. Contractor shall coordinate its defense with the Texas Attorney General as requested by DARS. This paragraph is not intended to and shall not be construed to require contractor to indemnify or hold harmless the State or DARS for any claims or liabilities resulting from the negligent acts or omissions of DARS or its employees.
AUDIT or INVESTIGATION: Acceptance of funds under this contract acts as acceptance of the authority of DARS, the State Auditor's Office (SAO), federal funding agency or any successor agency, to conduct an audit or investigation of the Contractor or any subcontractors in connection with those funds during the term of the contract and thereafter, as provided by law. Upon request, the Contractor and any of its subcontractors associated with this contract will provide DARS, the State Auditor's Office, federal funding agency, their successor agencies, or any of their duly authorized representatives any books, documents, papers and records which are directly pertinent to this contract for the purpose of conducting audits, examinations, investigations, matching funds validations, or making excerpts and transcriptions. The Contractor and subcontractors associated with this contract will cooperate fully with the above parties in the conduct of an audit, examination, investigation, funds validation, or the making of excerpts and transcriptions. The Contractor will ensure this clause concerning the authority to audit funds received indirectly by subcontractors through the Contractor, the requirement to make books, records, documents and papers, and the requirement to cooperate is included in any subcontract it awards.
DISPUTE RESOLUTION. Disputes and claims for breach of contract under this contract will be resolved under laws of the State of Texas, the Texas Government Code Chapter 2260 and DARS rules or standards.
DEBARRED CONTRACTORS. Contractor certifies that it is not included on the Texas Comptroller of Public Accounts list of debarred Contractors 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.
RECORD RETENTION. The Contractor and any of its subcontractors associated with this contract will retain financial and supporting documents, statistical records, and any other records pertinent to the services provided under this contract for which a claim or report was submitted to DARS. The records and documents must be kept for three years after the date of submission of the final billing or until all billing questions are resolved, whichever is later.
Under Government Code, Sections 2155.006 and 2261.053, as applicable, the Contractor or Contractor certifies that the individual or business entity named in this bid or contract is eligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.
COMPLIANCE: Contractor shall comply with all applicable state and federal laws, rules and regulations governing the provision of services under this contract and DARS rules and standards, including but not limited to requirements specifically stated in this contract.
CIVIL RIGHTS: (a) Contractor agrees to comply with state and federal antidiscrimination laws, including without limitation:

(1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.);
(2) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
(3) Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.);
(4) Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107);
(5) Title IX of the Education Amendments of 1972 (20 U.S.C. §§1681-1688);
(6) Food and Nutrition Act of 2008 (7 U.S.C. §2011 et seq.); and
(7) DARS administrative rules, as set forth in the Texas Administrative Code, to the extent applicable to this Agreement.

Contractor agrees to comply with all amendments to the above-referenced laws, and all requirements imposed by the regulations issued pursuant to these laws. These laws provide in part that no persons in the United States may, on the grounds of race, color, national origin, sex, age, disability, political beliefs, or religion, be excluded from participation in or denied any aid, care, service or other benefits provided by federal or state funding, or otherwise be subjected to discrimination.

(b) Contractor agrees to comply with Title VI of the Civil Rights Act of 1964, and its implementing regulations at 45 C.F.R. Part 80 or 7 C.F.R. Part 15, prohibiting a Contractor from adopting and implementing policies and procedures that exclude or have the effect of excluding or limiting the participation of clients in its programs, benefits, or activities on the basis of national origin. Applicable state and federal civil rights laws require Contractors to provide alternative methods for ensuring access to services for applicants and recipients who cannot express themselves fluently in English. Contractor agrees to ensure that its policies do not have the effect of excluding or limiting the participation of persons in its programs, benefits, and activities on the basis of national origin. Contractor also agrees to take reasonable steps to provide services and information, both orally and in writing, in appropriate languages other than English, in order to ensure that persons with limited English proficiency are effectively informed and can have meaningful access to programs, benefits, and activities.

(c) Contractor agrees to comply with Executive Order 13279, and it’s implementing regulations at 45 C.F.R. Part 87 or 7 C.F.R. Part 16. These provide in part that any organization that participates in programs funded by direct financial assistance from the United States Department of Agriculture or the United States Department of Health and Human Services shall not, in providing services, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.

(d) Upon request, Contractor will provide Health and Human Services Commission (HHSC) Civil Rights Office with copies of all of the Contractor’s civil rights policies and procedures.

(e) Contractor must notify HHSC’s Civil Rights Office of any civil rights complaints received relating to its performance under this Agreement. This notice must be delivered no more than 10 calendar days after receipt of a complaint. Notice provided pursuant to this section must be directed to:

HHSC Civil Rights Office
701 W. 51st Street, Mail Code W206
Austin, Texas 78751
Phone Toll Free: 1-888-388-6332
Phone: (512) 438-4313
TTY Toll Free: 1-877-432-7232
Fax: (512) 438-5885

This contract is subject to the availability of state and/or federal funds. If funds are not available or if available funding is reduced, DARS will provide the Contractor with written notice of termination in accordance with provisions of this contract, payment suspension, or funding reduction. Contractor will have no right of action against the State of Texas or DARS in the event that DARS is unable to fulfill its obligations under this contract as a result of lack of sufficient funding.
The Contractor and any subcontractors associated with this contract agree to permit on-site monitoring visits, as deemed necessary by DARS to review all financial or other records and management control systems relevant to the provision of goods and services under this contract. The Contractor will include this requirement in any subcontract associated with this agreement.
The Contractor and any of its subcontractors associated with this agreement will remedy in a timely manner, any weaknesses, deficiencies or program noncompliance found as a result of a review, audit or investigation, and performance or fiscal exceptions found by DARS, the State Auditor's Office, federal funding agency, their successor agencies, or any of their duly authorized representatives. Such remedy can include refund of disallowed costs or billed amounts or any other appropriate sanctions or penalties deemed necessary by DARS.
The Contractor's records related to this contract are subject to the requirements of Texas Government Code Chapter 552, Public Information (the Public Information Act).
Contractor will comply with Chapter 48, Human Resources Code, regarding reporting of abuse, exploitation or neglect of elderly or disabled persons.
The Contractor represents and warrants that it will buy Texas products and materials for use in providing the goods or services authorized herein when such products and materials are available at a comparable price and in a comparable period of time when compared to non-Texas products and materials.
The Contractor and any of its subcontractors associated with this contract will maintain reasonable and appropriate administrative, physical, and technical safeguards to ensure the integrity and confidentiality of DARS-related information and to protect against any reasonably anticipated threats or hazards to the security or integrity of the information and unauthorized use or disclosure of the information in accordance with applicable federal and state laws, rules, and regulations and DARS policies and procedures. Different requirements apply to different types of contractors. Requirements that may apply include, but are not limited to:

Federal Vocational Rehabilitation regulations at 34 C.F.R. Part 361;
Federal Early Intervention regulations at 34 C.F.R. Part 303;
Texas Health and Safety Code Sections 85.113 and 85.115;
HIPAA privacy and security rules, 45 C.F.R. parts 160, 162 and 164;
American Recovery and Reinvestment Act of 2009; Sections 13400–13411 (42 U.S.C § 17921);
Title 1 Texas Administrative Code, Sections 202.1 and 202.3 through 202.28;
Federal Information Security Management Act of 2002 (FISMA);
Publication 1075—Tax Information Security Guidelines for Federal, State and Local Agencies;
NIST Special Publication 800-53 Revision 3—Recommended Security Controls for Federal Information Systems and Organizations;
NIST Special Publication 800-47—Security Guide for Interconnecting Information Technology Systems; and
Health and Human Services Enterprise Information Security Standards and Guidelines.

Upon reasonable notice, the Contractor must provide and cause its subcontractors and agents to provide DARS or its designee prompt, reasonable, and adequate access to any information security records, books, documents, and papers that are directly pertinent to the performance of the scope of work including, but not limited to:

Contractor information security policies;
Contractor information security procedures;
Contractor information security standards;
Contractor information security guidelines;
Contractor security plan in compliance with NIST Special Publication 800-53 Revision 3;
Contractor security violation reports;
Contractor employee security acknowledgement agreements; and
Lists of Contractor’s employees with authorized access to DARS confidential information.

Items (1) through (5) above are subject to DARS review and approval. Neither DARS review or approval, nor its failure to review or approve will relieve, waive, or satisfy any of the Contractor’s obligations under this Agreement.

The Contractor will provide and will cause its subcontractors and agents to provide to DARS periodic written certifications of compliance with controls and provisions relating to information security, including but not limited to those related to confidential data transfers and the handling and disposal of Protected Health Information (PHI), Electronic Protected Health Information (EPHI), and Personally Identifiable Information (PII). Acceptable forms of written compliance may be, but are not limited to:

Statement on Standards for Attestation Engagements (SSAE) No.16, Service Organization Control (SOC) Report;
General Security Controls Audit;
Application Controls Audit;
Vulnerability Assessment; and
Network/Systems Penetration Test.

If any part of this contract is held unenforceable, the rest of the contract will remain in full force and effect.
Failure to enforce any provision of the contract does not constitute a waiver of that provision, or any other provision, of the contract.
The terms of this contract are accepted by the parties of the contract. Persons entering into the contract are authorized to obligate the parties to the terms of the contract.
The Contractor will immediately notify DARS if at any time the Contractor is not in compliance with the provisions of this contract. A false statement regarding the Contractor's compliance with the terms of this contract may be treated as a material breach of this contract and may be grounds for DARS to terminate the contract.
The Contractor accepts liability and retains responsibility for the performance of any of its personnel and subcontractors providing services under the terms of this contract.
The Contractor accepts responsibility for compensating any party with whom the Contractor enters into a subcontract to provide services under the terms of this contract.
The Contractor, Contractor's employees, subcontractors under this contract and their employees are not employees of DARS, are not eligible for DARS employee benefits and will not represent themselves as DARS employees.
The Contractor will comply with the requirements of the Immigration Reform and Control Act of 1986 (8 U.S.C. §1324a, et seq.) regarding employment verification and retention of verification forms for any individuals hired after November 6, 1986, who will perform any labor or services under this contract.
DARS and the federal awarding agency reserve a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for federal or State of Texas government purposes: 1. the copyright in any work developed under this contract, and 2. any rights of copyright to which the Contractor purchases ownership with contract support.
The Contractor will maintain all state and federal licenses and/ or certifications required to provide goods and services under this contract.

F. PROHIBITED CONDITIONS

CONFLICT OF INTEREST. The Contractor will comply with all applicable state and federal laws, rules, regulations and policies regarding conflicts of interest under this contract. The Contractor warrants that it has no interest and will acquire no direct or indirect interest that would conflict in any manner with its performance under this contract.

G. OTHER PROVISIONS

Recycled Products: Definitions:

Environmentally Sensitive (or Environmentally Preferable) Products: Products that protect or enhance the environment, or that damage the environment less than traditionally available products.

Pre-consumer Materials: Materials or by-products that have not reached a business entity or consumer for an intended end use including industrial scrap material and overstock, or obsolete inventories from distributors, wholesalers and other companies. The term does not include materials and by-products generated from, and commonly reused within, an original manufacturing process or separate operation within the same or a parent company.

Post-consumer Materials: Finished products, packages or materials generated by a business entity or consumer that have served their intended end uses, and that have been recovered or otherwise diverted from the waste stream for the purpose of recycling.

Recycled Material Content: The portion of a product made with recycled materials consisting of pre-consumer materials (waste), post-consumer materials (waste), or both.

Recycled Materials: Materials, goods or products that contain recyclable materials, industrial waste, or hazardous waste that may be used in place of raw or virgin materials in manufacturing a new product.

Recycled Product: A product, including recycled steel, that meets the requirements for recycled material content as prescribed by the rules established by the Texas Commission on Environmental Quality (TCEQ) in consultation with the CPA. The product must be clearly identified as recycled by packaging, markings, literature, etc.

Remanufactured Product: A product that has been repaired, rebuilt, or otherwise restored to meet or exceed the original equipment manufacturer's (OEM) performance specifications; provided, however, the warranty period for a remanufactured product may differ from the OEM warranty period.