Fiscal Year 201[2] 3 Department Of State Health Services

Fiscal Year 201[2] 3 Department Of State Health Services

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Fiscal Year 201[2] 3 Department of State Health Services Contract
General Provisions
(Core/Subrecipient)
ARTICLE ICOMPLIANCE AND REPORTING
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Section I.1Compliance with Statutes and Rules. Contractor shall
comply, and shall require its subcontractor(s) to comply, with the
requirements of the Department’s rules of general applicability and
other applicable state and federal statutes, regulations, rules, and
executive orders, as such statutes, regulations, rules, and executive
orders currently exist and as they may be lawfully amended. The
Department rules are located in the Texas Administrative Code, Title
25 (Rules). To the extent this Contract imposes a higher standard, or
additional requirements beyond those required by applicable statutes,
regulations, rules or executive orders, the terms of this Contract
will control. Contractor further agrees that, upon notification from
DSHS, Contractor shall comply with the terms of any contract
provisions DSHS is required to include in its contracts under
legislation effective at the time of the effective date of this
Contract or during the term of this Contract.
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Section I.2Compliance with Requirements of Solicitation Document.
Except as specified in these General Provisions or the Program
Attachment(s), Contractor shall comply with the requirements,
eligibility conditions, assurances, certifications and program
requirements of the Solicitation Document, if any, (including any
revised or additional terms agreed to in writing by Contractor and
DSHS prior to execution of this Contract) for the duration of this
Contract or any subsequent renewals. The Parties agree that the
Department has relied upon Contractor’s response to the Solicitation
Document. The Parties agree that any misrepresentation contained in
Contractor’s response to the Solicitation Document constitutes a
breach of this Contract.
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Section I.3Reporting. Contractor shall submit reports in accordance
with the reporting requirements established by the Department and
shall provide any other information requested by the Department in the
format required by DSHS. Failure to submit any required report or
additional requested information by the due date specified in the
Program Attachment(s) or upon request constitutes a breach of
contract, may result in delayed payment and/or the imposition of
sanctions and remedies, and, if appropriate, emergency action; and may
adversely affect evaluation of Contractor’s future contracting
opportunities with the Department.
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Section I.4Client Financial Eligibility. Where applicable, Contractor
shall use financial eligibility criteria, financial assessment
procedures and standards developed by the Department to determine
client eligibility.
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Section I.5Applicable Contracts Law and Venue for Disputes. Regarding
all issues related to contract formation, performance, interpretation,
and any issues that may arise in any dispute between the Parties, this
Contract will be governed by, and construed in accordance with, the
laws of the State of Texas. In the event of a dispute between the
Parties, venue for any suit will be Travis County, Texas.
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Section I.6Applicable Laws and Regulations Regarding Funding Sources.
Where applicable, federal statutes and regulations, including federal
grant requirements applicable to funding sources, will apply to this
Contract. Contractor agrees to comply with applicable laws, executive
orders, regulations and policies, as well as Office of Management and
Budget (OMB) Circulars (as codified in Title 2 of the Code of Federal
Regulations), the Uniform Grant and Contract Management Act of 1981
(UGMA), Tex. Gov. Code Chapter 783, and Uniform Grant Management
Standards (UGMS), as revised by federal circulars and incorporated in
UGMS by the [Governor’s Budget, Planning and Policy Division]
Comptroller of Public Accounts, Texas Procurement and Support Services
Division. UGMA and UGMS can be located through web links on the DSHS
website at http://www.dshs.state.tx.us/contracts/links.shtm.
Contractor also shall comply with all applicable federal and state
assurances contained in UGMS, Part III, State Uniform Administrative
Requirements for Grants and Cooperative Agreements §__.14. If
applicable, Contractor shall comply with the Federal awarding agency’s
Common Rule, and the U.S. Health and Human Services Grants Policy
Statement, both of which may be located through web links on the DSHS
website at http://www.dshs.state.tx.us/contracts/links.shtm. For
contracts funded by block grants, Contractor shall comply with Tex.
Gov. Code Chapter 2105.
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Section I.7Statutes and Standards of General Applicability. Contractor
is responsible for reviewing and complying with all applicable
statutes, rules, regulations, executive orders and policies. To the
extent applicable to Contractor, Contractor shall comply with the
following:
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a.
the following statutes, rules, regulations, and DSHS policy (and
any of their subsequent amendments) that collectively prohibit
discrimination, exclusion from or limitation of participation in
programs, benefits or activities or denial of any aid, care,
service or other benefit on the basis of race, color, national
origin, limited English proficiency, sex, sexual orientation
(where applicable), disabilities, age, substance abuse, political
belief or religion: 1) Title VI of the Civil Rights Act of 1964,
42 USC §§ 2000d et seq.; 2) Title IX of the Education Amendments
of 1972, 20 USC §§ 1681-1683, and 1685-1686; 3) Section 504 of
the Rehabilitation Act of 1973, 29 USC § 794(a); 4) the Americans
with Disabilities Act of 1990, 42 USC §§ 12101 et seq.; 5) Age
Discrimination Act of 1975, 42 USC §§ 6101-6107; 6)
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment
and Rehabilitation Act of 1970, 42 USC § 290dd (b)(1); 7) 45 CFR
Parts 80, 84, 86 and 91; 8) U.S. Department of Labor, Equal
Employment Opportunity E.O. 11246; 9) Tex. Lab. Code Chapter 21;
10) Food Stamp Act of 1977 (7 USC § 200 et seq.; 11) Executive
Order 13279, 45 CFR Part 87 or 7 CFR Part 16 regarding equal
treatment and opportunity for religious organizations; 12) Drug
Abuse Office and Treatment Act of 1972, 21 USC §§ 1101 et seq.,
relating to drug abuse; 13) Public Health Service Act of 1912, §§
523 and 527, 42 USC § 290dd-2, and 42 CFR Part 2, relating to
confidentiality of alcohol and drug abuse patient records; 14)
Title VIII of the Civil Rights Act of 1968, 42 USC §§ 3601 et
seq., relating to nondiscrimination in housing; and 15) DSHS
Policy AA-5018, Non-discrimination Policy for DSHS Programs;
b.
Immigration Reform and Control Act of 1986, 8 USC § 1324a, and
Immigration Act of 1990, 8 USC 1101 et seq., regarding employment
verification; and Illegal Immigration Reform and Immigrant
Responsibility Act of 1996;
c.
Pro-Children Act of 1994, 20 USC §§ 6081-6084, and the
Pro-Children Act of 2001, 20 USC § 7183, regarding the non-use of
all tobacco products;
d.
National Research Service Award Act of 1971, 42 USC §§ 289a-1 et
seq., and 6601 (PL 93-348 and PL 103-43), regarding human subjects
involved in research;
e.
Hatch Political Activity Act, 5 USC §§ 1501-1508 and 7324-28,
which limits the political activity of employees whose employment
is funded with federal funds;
f.
Fair Labor Standards Act, 29 USC §§ 201 et seq., and the
Intergovernmental Personnel Act of 1970, 42 USC §§ 4701 et seq.,
as applicable, concerning minimum wage and maximum hours;
g.
Tex. Gov. Code Chapter 469, pertaining to eliminating
architectural barriers for persons with disabilities;
h.
Texas Workers’ Compensation Act, Tex. Lab. Code Chapters 401-406
and 28 Tex. Admin. Code Part 2, regarding compensation for
employees’ injuries;
i.
The Clinical Laboratory Improvement Amendments of 1988, 42 USC §
263a, regarding the regulation and certification of clinical
laboratories;
j.
The Occupational Safety and Health Administration Regulations on
Blood Borne Pathogens, 29 CFR § 1910.1030, or Title 25 Tex. Admin.
Code Chapter 96 regarding safety standards for handling blood
borne pathogens;
k.
Laboratory Animal Welfare Act of 1966, 7 USC §§ 2131 et seq.,
pertaining to the treatment of laboratory animals;
l.
environmental standards pursuant to the following: 1) Institution
of environmental quality control measures under the National
Environmental Policy Act of 1969, 42 USC §§ 4321-4347 and
Executive Order 11514 (35 Fed. Reg. 4247), “Protection and
Enhancement of Environmental Quality;” 2) Notification of
violating facilities pursuant to Executive Order 11738 (40 CFR
Part 32), “Providing for Administration of the Clean Air Act and
the Federal Water Pollution Control Act with respect to Federal
Contracts, Grants, or Loans;” 3) Protection of wetlands pursuant
to Executive Order 11990, 42 Fed. Reg. 26961; 4) Evaluation of
flood hazards in floodplains in accordance with Executive Order
11988, 42 Fed. Reg. 26951 and, if applicable, flood insurance
purchase requirements of Section 102(a) of the Flood Disaster
Protection Act of 1973 (PL 93-234); 5) Assurance of project
consistency with the approved State Management program developed
under the Coastal Zone Management Act of 1972, 16 USC §§ 1451 et
seq.; 6) Federal Water Pollution Control Act, 33 USC §1251 et
seq.; 7) Protection of underground sources of drinking water under
the Safe Drinking Water Act of 1974, 42 USC §§ 300f-300j; 8)
Protection of endangered species under the Endangered Species Act
of 1973, 16 USC §§ 1531 et seq.; 9) Conformity of federal actions
to state clean air implementation plans under the Clean Air Act of
1955, 42 USC §§7401 et seq.; 10) Wild and Scenic Rivers Act of
1968 (16 USC §§ 1271 et seq.) related to protecting certain rivers
system; and 11) Lead-Based Paint Poisoning Prevention Act (42 USC
§§ 4801 et seq.) prohibiting the use of lead-based paint in
residential construction or rehabilitation;
m.
Intergovernmental Personnel Act of 1970 (42 USC §§4278-4763)
regarding personnel merit systems for programs specified in
Appendix A of the federal Office of Program Management’s Standards
for a Merit System of Personnel Administration (5 CFR Part 900,
Subpart F);
n.
Titles II and III of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (PL 91-646), relating to
fair treatment of persons displaced or whose property is acquired
as a result of Federal or federally-assisted programs;
o.
Davis-Bacon Act (40 USC §§ 276a to 276a-7), the Copeland Act (40
U.S.C. § 276c and 18 USC § 874), and the Contract Work Hours and
Safety Standards Act (40 USC §§ 327-333), regarding labor
standards for federally-assisted construction subagreements;
p.
National Historic Preservation Act of 1966, §106 (16 USC § 470),
Executive Order 11593, and the Archaeological and Historic
Preservation Act of 1974 (16 USC §§ 469a-1 et seq.) regarding
historic property to the extent necessary to assist DSHS in
complying with the Acts;
q.
financial and compliance audits in accordance with Single Audit
Act Amendments of 1996 and OMB Circular No. A-133, “Audits of
States, Local Governments, and Non-Profit Organizations;”
r.
Trafficking Victims Protection Act of 2000, Section 106(g) (22 USC
§ 7104);
s.
Executive Order, Federal Leadership on Reducing Text Messaging
While Driving, October 1, 2009, if required by a federal funding
source of the Contract; and
t.
requirements of any other applicable state and federal statutes,
executive orders, regulations, rules and policies.
If this Contract is funded by a federal grant or cooperative
agreement, additional state or federal requirements found in the
Notice of Grant Award are imposed on Contractor and incorporated
herein by reference. Contractor may obtain a copy of any applicable
Notice of Grant Award from the contract manager assigned to the
Program Attachment.
Section I.8Applicability of General Provisions to Interagency and
Interlocal Contracts. Certain sections or portions of sections of
these General Provisions will not apply to Contractors that are State
agencies or units of local government; and certain additional
provisions will apply to such Contractors.
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a.
The following sections or portions of sections of these General
Provisions will not apply to interagency or interlocal contracts:
1.
Hold Harmless and Indemnification, Section 13.19;
2.
Independent Contractor, Section 12.15 (delete the third sentence
in its entirety; delete the word “employees” in the fourth
sentence; the remainder of the section applies);
3.
Insurance, Section 12.03;
4.
Liability Coverage, Section 12.05;
5.
Fidelity Bond, Section 12.04;
6.
Historically Underutilized Businesses, Section 12.10 (Contractor,
however, shall comply with HUB requirements of other statutes and
rules specifically applicable to that entity);
7.
Debt to State and Corporate Status, Section 3.01;
8.
Application of Payment Due, Section 3.02; and
9.
Article XV Claims against the Department (This Article is
inapplicable to interagency contracts only).
b.
The following additional provisions will apply to interagency
contracts:
1.
This Contract is entered into pursuant to the authority granted
and in compliance with the provisions of the Interagency
Cooperation Act, Tex. Gov. Code Chapter 771;
2.
The Parties hereby certify that (1) the services specified are
necessary and essential for the activities that are properly
within the statutory functions and programs of the affected
agencies of State government; (2) the proposed arrangements serve
the interest of efficient and economical administration of the
State government; and (3) the services, supplies or materials
contracted for are not required by Section 21 of Article 16 of the
Constitution of the State of Texas to be supplied under contract
given to the lowest responsible bidder; and
3.
DSHS certifies that it has the authority to enter into this
Contract granted in Tex. Health & Safety Code Chapter 1001, and
Contractor certifies that it has specific statutory authority to
enter into and perform this Contract.
c.
The following additional provisions will apply to interlocal
contracts:
1.
This Contract is entered into pursuant to the authority granted
and in compliance with the provisions of the Interlocal
Cooperation Act, Tex. Gov. Code Chapter 791;
2.
Payments made by DSHS to Contractor will be from current revenues
available to DSHS; and
3.
Each Party represents that it has been authorized to enter into
this Contract.
d.
Contractor agrees that Contract Revision Requests (pursuant to the
Contractor’s Request for Revision to Certain Contract Provisions
section), when signed by a duly authorized representative of
Contractor, will be effective as of the effective date specified
by the Department, whether that date is prior to or after the date
of any ratification by Contractor’s governing body.
Section I.9Civil Rights Policies and Complaints. Upon request,
Contactor shall provide the Health and Human Services Commission
(HHSC) Civil Rights Office with copies of all Contractor’s civil
rights policies and procedures. Contractor shall notify HHSC’s Office
of Civil Rights of any civil rights complaints received relating to
performance under this Contract no more than ten (10) calendar days
after Contractor’s receipt of the claim. Notice must be directed to –
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HHSC Civil Rights Office
701 W. 51st St., Mail Code W206
Austin, Texas 78751
Toll-free phone (888) 388-6332
Phone (512) 438-4313
TTY Toll-free (877) 432-7232
Fax (512) 438-5885
Section I.10Licenses, Certifications, Permits, Registrations and
Approvals. Contractor shall obtain and maintain all applicable
licenses, certifications, permits, registrations and approvals to
conduct its business and to perform the services under this Contract.
Failure to obtain or any revocation, surrender, expiration,
non-renewal, inactivation or suspension of any such license,
certification, permit, registration or approval constitutes grounds
for termination of this Contract or other remedies the Department
deems appropriate. Contractor shall ensure that all its employees,
staff and volunteers obtain and maintain in active status all
licenses, certifications, permits, registrations and approvals
required to perform their duties under this Contract and shall
prohibit any person who does not hold a current, active required
license, certification, permit, registration or approval from
performing services under this Contract.
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Section 1.11 Funding Obligation. This Contract is contingent upon the
availability of funding. If funds become unavailable through lack of
appropriations, budget cuts, transfer of funds between programs or
health and human services agencies, amendment of the Appropriations
Act, health and human services agency consolidation, or any other
disruptions of current appropriated funding for this Contract, DSHS
may restrict, reduce or terminate funding under this Contract. Notice
of any restriction or reduction will include instructions and detailed
information on how DSHS will fund the services and/or goods to be
procured with the restricted or reduced funds.
ARTICLE IISERVICES
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Section II.1Education to Persons in Residential Facilities. If
applicable, Contractor shall ensure that all persons, who are housed
in Department-licensed and/or -funded residential facilities and who
are twenty-two (22) years of age or younger, have access to
educational services as required by Tex. Educ. Code § 29.012.
Contractor shall notify the local education agency or local early
intervention program as prescribed by Tex. Educ. Code § 29.012 not
later than the third calendar day after the date a person who is
twenty-two (22) years of age or younger is placed in Contractor’s
residential facility.
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Section II.2Disaster Services. In the event of a local, state, or
federal emergency, including natural, man-made, criminal, terrorist,
and/or bioterrorism events, declared as a state disaster by the
Governor, or as a federal disaster by the appropriate federal
official, Contractor may be called upon to assist DSHS in providing
services, as appropriate, in the following areas: community
evacuation; health and medical assistance; assessment of health and
medical needs; health surveillance; medical care personnel; health and
medical equipment and supplies; patient evacuation; in-hospital care
and hospital facility status; food, drug, and medical device safety;
worker health and safety; mental health and substance abuse; public
health information; vector control and veterinary services; and victim
identification and mortuary services. Contractor shall carry out
disaster services in the manner most responsive to the needs of the
emergency, be cost-effective, and be least intrusive on Contractor’s
primary services.
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Section II.3Consent to Medical Care of a Minor. If Contractor provides
medical, dental, psychological or surgical treatment to a minor under
this Contract, either directly or through contracts with
subcontractors, Contractor shall not provide treatment of a minor
unless informed consent to treatment is obtained pursuant to Tex. Fam.
Code Chapter 32, relating to consent to treatment of a child by a
non-parent or child or pursuant to other state law. If requirements of
federal law relating to consent directly conflict with Tex. Fam. Code
Chapter 32, federal law supersedes state law.
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Section II.4Telemedicine Medical Services. Contractor shall ensure
that if Contractor or its subcontractor uses
telemedicine/telepsychiatry that the services are implemented in
accordance with written procedures and using a protocol approved by
Contractor’s medical director and using equipment that complies with
the equipment standards as required by the Department. Procedures for
providing telemedicine service must include the following
requirements:
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a.
clinical oversight by Contractor’s medical director or designated
physician responsible for medical leadership;
b.
contraindication considerations for telemedicine use;
c.
qualified staff members to ensure the safety of the individual
being served by telemedicine at the remote site;
d.
safeguards to ensure confidentiality and privacy in accordance
with state and federal laws;
e.
use by credentialed licensed providers providing clinical care
within the scope of their licenses;
f.
demonstrated competency in the operations of the system by all
staff members who are involved in the operation of the system and
provision of the services prior to initiating the protocol;
g.
priority in scheduling the system for clinical care of
individuals;
h.
quality oversight and monitoring of satisfaction of the
individuals served; and
i.
management of information and documentation for telemedicine
services that ensures timely access to accurate information
between the two sites.
Telemedicine Medical Services does not include chemical dependency
treatment services provided by electronic means under Rule § 448.911.
Section II.5Fees for Personal Health Services. Contractor may develop
a system and schedule of fees for personal health services in
accordance with the provisions of Tex. Health & Safety Code § 12.032,
DSHS Rule §1.91 covering Fees for Personal Health Services, and other
applicable laws or grant requirements. The amount of a fee must not
exceed the actual cost of providing the services. No client may be
denied a service due to inability to pay.
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Section II.6Cost Effective Purchasing of Medications. If medications
are funded under this Contract, Contractor shall make needed
medications available to clients at the lowest possible prices and use
the most cost effective medications purchasing arrangement possible.
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Section II.7Services and Information for Persons with Limited English
Proficiency. Contractor shall take reasonable steps to provide
services and information, both orally and in writing, in appropriate
languages other than English, to ensure that persons with limited
English proficiency are effectively informed and can have meaningful
access to programs, benefits, and activities. Contractor shall
identify and document on the client records the primary
language/dialect of a client who has limited English proficiency and
the need for translation or interpretation services and shall not
require a client to provide or pay for the services of a translator or
interpreter. Contractor shall make every effort to avoid use of any
persons under the age of eighteen (18) or any family member or friend
of the client as an interpreter for essential communications with a
client with limited English proficiency, unless the client has
requested that person and using the person would not compromise the
effectiveness of services or violate the client’s confidentiality and
the client is advised that a free interpreter is available.
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ARTICLE IIIFUNDING
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Section III.1Debt to State and Corporate Status. Pursuant to Tex. Gov.
Code § 403.055, the Department will not approve and the State
Comptroller will not issue payment to Contractor if Contractor is
indebted to the State for any reason, including a tax delinquency.
Contractor, if a corporation, certifies by execution of this Contract
that it is current and will remain current in its payment of franchise
taxes to the State of Texas or that it is exempt from payment of
franchise taxes under Texas law (Tex. Tax Code §§ 171.001 et seq.).
Contractor, if a corporation, further certifies that it is and will
remain in good standing with the Secretary of State’s office. A false
statement regarding franchise tax or corporate status is a material
breach of this Contract. If franchise tax payments become delinquent
during the Contract term, all or part of the payments under this
Contract may be withheld until Contractor’s delinquent franchise tax
is paid in full.
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Section III.2 Application of Payment Due. Contractor agrees that any
payments due under this Contract will be applied towards any debt of
Contractor, including but not limited to delinquent taxes and child
support that is owed to the State of Texas.
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Section III.3Use of Funds. Contractor shall expend Department funds
only for the provision of approved services and for reasonable and
allowable expenses directly related to those services.
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Section III.4Use for Match Prohibited. Contractor shall not use funds
provided through this Contract for matching purposes in securing other
funding unless directed or approved by the Department in writing.
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Section III.5Program Income. Gross income directly generated from
Department funds through a project or activity performed under a
Program Attachment and/or earned only as a result of a Program
Attachment during the term of the Program Attachment are considered
program income. Unless otherwise required under the terms of the grant
funding this Contract, Contractor shall use the addition alternative,
as provided in UGMS § __.25(g)(2), for the use of program income to
further the program objectives of the state or federal statute under
which the Program Attachment was made, and Contractor shall spend the
program income on the same Program Attachment project in which it was
generated. Contractor shall identify and report this income in
accordance with the Compliance and Reporting Article of these General
Provisions, the Contractor’s Financial Procedures Manual located at
http://www.dshs.state.tx.us/contracts/cfpm.shtm and the provisions of
the Program Attachment(s). Contractor shall expend program income
during the Program Attachment term and may not carry forward to any
succeeding term. Contractor shall refund program income not expended
in the term in which it is earned to DSHS. DSHS may base future
funding levels, in part, upon Contractor’s proficiency in identifying,
billing, collecting, and reporting program income, and in using it for
the purposes and under the conditions specified in this Contract.
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Section III.6Nonsupplanting. Contractor shall not supplant (i.e., use
funds from this Contract to replace or substitute existing funding
from other sources that also supports the activities that are the
subject of this Contract) but rather shall use funds from this
Contract to supplement existing state or local funds currently
available for a particular activity. Contractor shall make a good
faith effort to maintain its current level of support. Contractor may
be required to submit documentation substantiating that a reduction in
state or local funding, if any, resulted for reasons other than
receipt or expected receipt of funding under this Contract.
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ARTICLE IVPAYMENT METHODS AND RESTRICTIONS
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Section IV.1Payment Methods. Except as otherwise provided by the
provisions of the Program Attachment(s), the payment method for each
Program Attachment will be one of the following methods:
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a.
cost reimbursement. This payment method is based on an approved
budget in the Program Attachment(s) and acceptable submission of a
request for reimbursement; or
b.
unit rate/fee-for-service. This payment method is based on a fixed
price or a specified rate(s) or fee(s) for delivery of a specified
unit(s) of service, as stated in the Program Attachment(s) and
acceptable submission of all required documentation, forms and/or
reports.
Section IV.2Billing Submission. Contractors shall bill the Department
in accordance with the Program Attachment(s) in the form and format
prescribed by DSHS. Unless otherwise specified in the Program
Attachment(s) or permitted under the Third Party Payors section of
this Article, Contractor shall submit requests for reimbursement or
payment monthly [within thirty (30) calendar days] by the last
business day of the month following the end of the month covered by
the bill. Contractor shall maintain all documentation that
substantiates billing submissions and make the documentation available
to DSHS upon request.
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Section IV.3Final Billing Submission. Unless otherwise provided by the
Department, Contractor shall submit a reimbursement or payment request
as a final close-out bill not later than sixty (60) calendar days
following the end of the term of the Program Attachment for goods
received and services rendered during the term. If necessary to meet
this deadline, Contractor may submit reimbursement or payment requests
by facsimile transmission. Reimbursement or payment requests received
in DSHS’s offices more than sixty (60) calendar days following the end
of the applicable term will not be paid. Consideration of requests for
an exception will be made on a case-by-case basis, subject to the
availability of funding, and only for an extenuating circumstance,
such as a catastrophic event, natural disaster, or criminal activity
that substantially interferes with normal business operations or
causes damage or destruction of a place of business and/or records. A
written statement describing the extenuating circumstance and the last
request for reimbursement must be submitted for review and approval to
the DSHS Accounting Section.
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Section IV.4Working Capital Advance. If allowed under this Contract, a
single one-time working capital advance per term of the Program
Attachment may be granted at the Department’s discretion. Contractor
must submit documentation to the contract manager assigned to the
Program Attachment to justify the need for a working capital advance.
Contractor shall liquidate the working capital advance as directed by
the Department. The requirements for the documentation justifying the
need for an advance and the directions for liquidating the advance are
found in the Contractor’s Financial Procedures Manual located at
http://www.dshs.state.tx.us/contracts/cfpm.shtm.
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Section IV.5Financial Status Reports (FSRs). Except as otherwise
provided in these General Provisions or in the terms of the Program
Attachment(s), for contracts with categorical budgets, Contractor
shall submit quarterly FSRs to Accounts Payable by the last business
day of the month following the end of each quarter of the Program
Attachment term for Department review and financial assessment.
Contractor shall submit the final FSR no later than sixty (60)
calendar days following the end of the applicable term.
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Section IV.6Third Party Payors. A third party payor is any person or
entity who has the legal responsibility for paying for all or part of
the services provided. Third party payors include, but are not limited
to, commercial health or liability insurance carriers, Medicaid, or
other federal, state, local, and private funding sources. Except as
provided in this Contract, Contractor shall screen all clients and
shall not bill the Department for services eligible for reimbursement
from third party payors. Contractor shall (a) enroll as a provider in
Children’s Health Insurance Program and Medicaid if providing approved
services authorized under this Contract that may be covered by those
programs, and bill those programs for the covered services; (b)
provide assistance to individuals to enroll in such programs when the
screening process indicates possible eligibility for such programs;
(c) allow clients who are otherwise eligible for Department services,
but cannot pay a deductible required by a third party payor, to
receive services up to the amount of the deductible and to bill the
Department for the deductible; (d) not bill the Department for any
services eligible for third party reimbursement until all appeals to
third party payors have been exhausted, in which case the thirty
(30)-day requirement in the Billing Submission section will be
extended until all such appeals have been exhausted; (e) maintain
appropriate documentation from the third party payor reflecting
attempts to obtain reimbursement; (f) bill all third party payors for
services provided under this Contract before submitting any request
for reimbursement to Department; and (g) provide third party billing
functions at no cost to the client.
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ARTICLE VTERMS AND CONDITIONS OF PAYMENT
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Section V.1Prompt Payment. Upon receipt of a timely, undisputed
invoice pursuant to this Contract, Department will pay Contractor.
Payments and reimbursements are contingent upon a signed Contract and
will not exceed the total amount of authorized funds under this
Contract. Contractor is entitled to payment or reimbursement only if
the service, work, and/or product has been authorized by the
Department and performed or provided pursuant to this Contract. If
those conditions are met, Department will make payment in accordance
with the Texas prompt payment law (Tex. Gov. Code Chapter 2251).
Contractor shall comply with Tex. Gov. Code Chapter 2251 regarding its
prompt payment obligations to subcontractors. Payment of invoices by
the Department will not constitute acceptance or approval of
Contractor’s performance, and all invoices and Contractor’s
performance are subject to audit or review by the Department.
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Section V.2Withholding Payments. Department may withhold all or part
of any payments to Contractor to offset reimbursement for any
ineligible expenditures, disallowed costs, or overpayments that
Contractor has not refunded to Department, or if financial status
report(s) required by the Department are not submitted by the date(s)
due. Department may take repayment (recoup) from funds available under
this Contract in amounts necessary to fulfill Contractor’s repayment
obligations.
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Section V.3Condition Precedent to Requesting Payment. Contractor shall
disburse program income, rebates, refunds, contract settlements, audit
recoveries, and interest earned on such funds before requesting cash
payments including any advance payments from Department.
----------------------------------------------------------------------
Section V.4Acceptance as Payment in Full. Except as permitted in the
Fees for Personal Health Services section of the Services Article of
these General Provisions or under 25 Tex. Admin. Code § 444.413,
Contractor shall accept reimbursement or payment from DSHS as payment
in full for services or goods provided to clients or participants, and
Contractor shall not seek additional reimbursement or payment for
services or goods from clients or participants or charge a fee or make
a profit with respect to the Contract. A fee or profit is considered
to be an amount in excess of actual allowable costs that are incurred
in conducting an assistance program.
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ARTICLE VIALLOWABLE COSTS AND AUDIT REQUIREMENTS
================================================
Section VI.1Allowable Costs. For services satisfactorily performed,
and sufficiently documented, pursuant to this Contract, DSHS will
reimburse Contractor for allowable costs. Contractor must have
incurred a cost prior to claiming reimbursement and within the
applicable term to be eligible for reimbursement under this Contract.
DSHS will determine whether costs submitted by Contractor are
allowable and eligible for reimbursement. If DSHS has paid funds to
Contractor for unallowable or ineligible costs, DSHS will notify
Contractor in writing, and Contractor shall return the funds to DSHS
within thirty (30) calendar days of the date of this written notice.
DSHS may withhold all or part of any payments to Contractor to offset
reimbursement for any unallowable or ineligible expenditures that
Contractor has not refunded to DSHS, or if financial status report(s)
required under the Financial Status Reports section are not submitted
by the due date(s). DSHS may take repayment (recoup) from funds
available under this Contract in amounts necessary to fulfill
Contractor’s repayment obligations. Applicable cost principles, audit
requirements, and administrative requirements include-
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Applicable Entity
Applicable Cost Principles
Audit Requirements
Administrative Requirements
State, Local and Tribal Governments
OMB Circular A‑87 (2 CFR, Part 225)
OMB Circular A‑133 and UGMS
UGMS, OMB Circular A-102, and applicable Federal awarding agency
common rule
Educational Institutions
OMB Circular A‑21 (2 CFR, Part 220)[; and UGMS, as applicable]
OMB Circular A‑133
OMB Circular A‑110 (2 CFR, Part 215) and applicable Federal awarding
agency common rule; and UGMS, as applicable
Non‑Profit Organizations
OMB Circular A‑122 (2 CFR, Part 230)
OMB Circular A‑133 and UGMS
UGMS; OMB Circular A-110 (2 CFR, Part 215) and applicable Federal
awarding agency common rule
For-profit Organization other than a hospital and an organization
named in OMB Circular A-122 (2 CFR Part, 230) as not subject to that
circular.
48 CFR Part 31, Contract Cost Principles Procedures, or uniform cost
accounting standards that comply with cost principles acceptable to
the federal or state awarding agency
OMB Circular A-133 and UGMS
UGMS and applicable Federal awarding agency common rule
A chart of applicable Federal awarding agency common rules is located
through a weblink on the DSHS website at
http://www.dshs.state.tx.us/contracts/links.shtm. OMB Circulars will
be applied with the modifications prescribed by UGMS with effect given
to whichever provision imposes the more stringent requirement in the
event of a conflict.
Section VI.2Independent Single or Program-Specific Audit. If
Contractor within Contractor’s fiscal year expends a total amount of
at least $500,000 in federal funds awarded, Contractor shall have a
single audit or program-specific audit in accordance with the Office
of Management and Budget (OMB) Circ. No. A-133, the Single Audit Act
of 1984, P L 98-502, 98 Stat. 2327, and the Single Audit Act
Amendments of 1996, P L 104-156, 110 Stat. 1396. The $500,000 federal
threshold amount includes federal funds passed through by way of state
agency awards. If Contractor within Contractor’s fiscal year expends a
total amount of at least $500,000 in state funds awarded, Contractor
must have a single audit or program-specific audit in accordance with
UGMS, State of Texas Single Audit Circular. For-profit Contractors
whose expenditures meet or exceed the federal and/or state expenditure
thresholds stated above shall follow the guidelines in OMB Circular
A-133 or UGMS, as applicable, for their program-specific audits. The
HHSC Office of Inspector General (OIG) will notify Contractor to
complete the Single Audit [Determination] Status Registration Form. If
Contractor fails to complete the Single Audit [Determination] Status
Form within thirty (30) calendar days after notification by OIG to do
so, Contractor shall be subject to DSHS sanctions and remedies for
non-compliance with this Contract. The audit must be conducted by an
independent certified public accountant and in accordance with
applicable OMB Circulars, Government Auditing Standards, and UGMS,
which is accessible through a web link on the DSHS website at
http://www.dshs.state.tx.us/contracts/links.shtm. Contractor shall
procure audit services in compliance with this section, state
procurement procedures, as well as with the provisions of UGMS.
Contractor, unless Contractor is a state governmental entity, shall
competitively re-procure independent single audit services at least
every five (5) years [and shall use the same lead auditor or
coordinating audit partner (having primary responsibility for the
audit) to conduct the independent audit for more than five (5)
consecutive years].
----------------------------------------------------------------------
Section VI.3Submission of Audit. Within thirty (30) calendar days of
receipt of the audit reports required by the Independent Single or
Program-Specific Audit section, Contractor shall submit one copy to
the Department’s Contract Oversight and Support Section, and one copy
to the OIG, at the following addresses:
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Department of State Health Services
Contract Oversight and Support, Mail Code 1326
P.O. Box 149347
Austin, Texas 78714-9347
Health and Human Services Commission
Office of Inspector General
Compliance/Audit, Mail Code 1326
P.O. Box 85200
Austin, Texas 78708-5200
If Contractor fails to submit the audit report as required by the
Independent Single or Program-Specific Audit section within thirty
(30) calendar days of receipt by Contractor of an audit report,
Contractor shall be subject to DSHS sanctions and remedies for
non-compliance with this Contract.
ARTICLE VIICONFIDENTIALITY
==========================
Section VII.1Maintenance of Confidentiality. Contractor must maintain
the privacy and confidentiality of information and records received
during or related to the performance of this Contract, including
patient and client records that contain protected health information
(PHI), and any other information that discloses confidential personal
information or identifies any client served by DSHS, in accordance
with applicable federal and state laws, rules and regulations,
including but not limited to 7 CFR Part 246; 42 CFR Part 2; 45 CFR
Parts 160 and 164 (Health Insurance Portability and Accountability Act
[HIPAA]); Tex. Health & Safety Code Chapters 12, 47, 81, 82, 85, 88,
92, 161, 181, 241, 245, 251, 534, 576, 577, 596, 611, and 773; and
Tex. Occ. Code Chapters 56 and 159 and all applicable rules and
regulations.
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Section VII.2Department Access to PHI and Other Confidential
Information. Contractor shall cooperate with Department to allow
Department to request, collect and receive PHI and other confidential
information under this Contract, without the consent of the individual
to whom the PHI relates, for funding, payment and administration of
the grant program, and for purposes permitted under applicable state
and federal confidentiality and privacy laws.
----------------------------------------------------------------------
Section VII.3Exchange of Client-Identifying Information. Except as
prohibited by other law, Contractor and DSHS shall exchange PHI
without the consent of clients in accordance with 45 CFR §
164.504(e)(3)(i)(B), Tex. Health & Safety Code § 533.009 and Rule
Chapter 414, Subchapter A or other applicable laws or rules.
Contractor shall disclose information described in Tex. Health &
Safety Code § 614.017(a)(2) relating to special needs offenders, to an
agency described in Tex. Health & Safety Code § 614.017(c) upon
request of that agency, unless Contractor documents that the
information is not allowed to be disclosed under 45 CFR Part 164 or
other applicable law.
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Section VII.4Security of Patient or Client Records. Contractor shall
maintain patient and client records in compliance with state and
federal law relating to security and retention of medical or mental
health and substance abuse patient and client records. Department may
require Contractor to transfer original or copies of patient and
client records to Department, without the consent or authorization of
the patient or client, upon termination of this Contract or a Program
Attachment to this Contract, as applicable, or if the care and
treatment of the individual patient or client is transferred to
another entity. Prior to providing services funded under this Contract
to a patient or client, Contractor shall attempt to obtain consent
from the patient or client to transfer copies of patient or client
records to another entity funded by DSHS upon termination of this
Contract or a Program Attachment to this Contract, as applicable, or
if care or treatment is transferred to another DSHS-funded contractor.
----------------------------------------------------------------------
Section VII.5HIV/AIDS Model Workplace Guidelines. If providing direct
client care, services, or programs, Contractor shall implement
Department’s policies based on the HIV/AIDS (human immunodeficiency
virus/acquired immunodeficiency syndrome) Model Workplace Guidelines
for Businesses, State Agencies, and State Contractors, Policy No.
090.021, and Contractor shall educate employees and clients concerning
HIV and its related conditions, including AIDS, in accordance with the
Tex. Health & Safety Code § 85.112-114. A link to the Model
Workplace Guidelines can be found at
http://www.dshs.state.tx.us/hivstd/policy/policies.shtm.
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ARTICLE VIIIRECORDS RETENTION
=============================
Section VIII.1Retention. Contractor shall retain records in accordance
with applicable state and federal statutes, rules and regulations. At
a minimum, Contractor shall retain and preserve all other records,
including financial records that are generated or collected by
Contractor under the provisions of this Contract, for a period of four
(4) years after the termination of this Contract. If services are
funded through Medicaid, the federal retention period, if more than
four (4) years, will apply. Contractor shall retain all records
pertaining to this Contract that are the subject of litigation or an
audit until the litigation has ended or all questions pertaining to
the audit are resolved. Legal requirements for Contractor may extend
beyond the retention schedules established in this section. Contractor
shall retain medical records in accordance with Tex. Admin. Code Title
22, Part 9, § 165.1(b) and (c) or other applicable statutes, rules and
regulations governing medical information. Contractor shall include
this provision concerning records retention in any subcontract it
awards. If Contractor ceases business operations, it shall ensure that
records relating to this Contract are securely stored and are
accessible by the Department upon Department's request for at least
four (4) years from the date Contractor ceases business or from the
date this Contract terminates, whichever is sooner. Contractor shall
provide, and update as necessary, the name and address of the party
responsible for storage of records to the contract manager assigned to
the Program Attachment.
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ARTICLE IXACCESS AND INSPECTION
===============================
Section IX.1Access. In addition to any right of access arising by
operation of law, Contractor, and any of Contractor’s affiliate or
subsidiary organizations or subcontractors shall permit the Department
or any of its duly authorized representatives, as well as duly
authorized federal, state or local authorities, including the
Comptroller General of the United States, OIG, and the State Auditor’s
Office (SAO), unrestricted access to and the right to examine any site
where business is conducted or client services are performed, and all
records (including financial records, client and patient records, if
any, and Contractor’s personnel records and governing body personnel
records), books, papers or documents related to this Contract; and the
right to interview members of Contractor’s governing body, staff,
volunteers, participants and clients concerning the Contract,
Contractor’s business and client services. If deemed necessary by the
Department or the OIG, for the purpose of investigation or hearing,
Contractor shall produce original documents related to this Contract.
The Department and HHSC will have the right to audit billings both
before and after payment, and all documentation that substantiates the
billings. Payments will not foreclose the right of Department and HHSC
to recover excessive or illegal payments. Contractor shall make
available to the Department information collected, assembled or
maintained by Contractor relative to this Contract for the Department
to respond to requests that it receives under the Public Information
Act. Contractor shall include this provision concerning the right of
access to, and examination of, sites and information related to this
Contract in any subcontract it awards.
----------------------------------------------------------------------
Section IX.2State Auditor’s Office. Contractor shall, upon request,
make all records, books, papers, documents, or recordings related to
this Contract available for inspection, audit, or reproduction during
normal business hours to any authorized representative of the SAO.
Contractor understands that the acceptance of funds under this
Contract acts as acceptance of the authority of the SAO, or any
successor agency, to conduct an audit or investigation in connection
with those funds. Contractor shall cooperate fully with the SAO or its
successor in the conduct of the audit or investigation, including
providing all records requested, and providing access to any
information the SAO considers relevant to the investigation or audit.
The SAO’s authority to audit funds will apply to Contract funds
disbursed by Contractor to its subcontractors, and Contractor shall
include this provision concerning the SAO’s authority to audit and the
requirement to cooperate, in any subcontract Contractor awards.
----------------------------------------------------------------------
Section IX.3Responding to Deficiencies. Any deficiencies identified by
DSHS or HHSC upon examination of Contractor’s records or during an
inspection of Contractor’s site(s) will be conveyed in writing to
Contractor. Contractor shall submit, by the date prescribed by DSHS, a
resolution to the deficiency identified in a site inspection, program
review or management or financial audit to the satisfaction of DSHS
or, if directed by DSHS, a corrective action plan to resolve the
deficiency. A DSHS or HHSC determination of either an inadequate or
inappropriate resolution of the findings may result in contract
remedies or sanctions under the Breach of Contract and Remedies for
Non-Compliance Article of these General Provisions.
----------------------------------------------------------------------
ARTICLE XNOTICE REQUIREMENTS
============================
Section X.1Child Abuse Reporting Requirement. This section applies to
mental health and substance abuse contractors and contractors for the
following public health programs: Human Immunodeficiency
Virus/Sexually Transmitted Diseases (HIV/STD); Family Planning (Titles
V, X and XX); Primary Health Care; Maternal and Child Health; and
Women, Infants and Children (WIC) Nutrition Services. Contractor shall
make a good faith effort to comply with child abuse reporting
guidelines and requirements in Tex. Fam. Code Chapter 261 relating to
investigations of reports of child abuse and neglect. Contractor shall
develop, implement and enforce a written policy that includes at a
minimum the Department’s Child Abuse Screening, Documenting, and
Reporting Policy for Contractors/Providers and train all staff on
reporting requirements. Contractor shall use the DSHS Child Abuse
Reporting Form as required by the Department located at
www.dshs.state.tx.us/childabusereporting. Contractor shall retain
reporting documentation on site and make it available for inspection
by DSHS.
----------------------------------------------------------------------
Section X.2Significant Incidents. In addition to notifying the
appropriate authorities, Contractor shall report to the contract
manager assigned to the Program Attachment significant incidents
involving substantial disruption of Contractor’s program operation, or
affecting or potentially affecting the health, safety or welfare of
Department-funded clients or participants within seventy-two (72)
hours of discovery.
----------------------------------------------------------------------
Section X.3Litigation. Contractor shall notify the contract manager
assigned to the Program Attachment of litigation related to or
affecting this Contract and to which Contractor is a party within
seven (7) calendar days of becoming aware of such a proceeding. This
includes, but is not limited to an action, suit or proceeding before
any court or governmental body, including environmental and civil
rights matters, professional liability, and employee litigation.
Notification must include the names of the parties, nature of the
litigation and remedy sought, including amount of damages, if any.
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Section X.4Action Against the Contractor. Contractor shall notify the
contract manager assigned to the Program Attachment if Contractor has
had a contract suspended or terminated for cause by any local, state
or federal department or agency or nonprofit entity within three (3)
working days of the suspension or termination. Such notification must
include the reason for such action; the name and contact information
of the local, state or federal department or agency or entity; the
date of the contract; and the contract or case reference number. If
Contractor, as an organization, has surrendered its license or has had
its license suspended or revoked by any local, state or federal
department or agency or non-profit entity, it shall disclose this
information within three (3) working days of the surrender, suspension
or revocation to the contract manager assigned to the Program
Attachment by submitting a one-page description that includes the
reason(s) for such action; the name and contact information of the
local, state or federal department or agency or entity; the date of
the license action; and a license or case reference number.
----------------------------------------------------------------------
Section X.5Insolvency. Contractor shall notify in writing the contract
manager assigned to the Program Attachment of Contractor’s insolvency,
incapacity, or outstanding unpaid obligations to the Internal Revenue
Service (IRS) or Texas Workforce Commission (TWC) within three (3)
working days of the date of determination that Contractor is insolvent
or incapacitated, or the date Contractor discovered an unpaid
obligation to the IRS or TWC. Contractor shall notify in writing the
contract manager assigned to the Program Attachment of its plan to
seek bankruptcy protection within three (3) working days of such
action by Contractor’s governing body.
----------------------------------------------------------------------
Section X.6Misuse of Funds and Performance Malfeasance. Contractor
shall report to the contract manager assigned to the Program
Attachment, any knowledge of debarment, suspected fraud, program
abuse, possible illegal expenditures, unlawful activity, or violation
of financial laws, rules, policies, and procedures related to
performance under this Contract. Contractor shall make such report no
later than three (3) working days from the date that Contractor has
knowledge or reason to believe such activity has taken place.
Additionally, if this Contract is federally funded by the Department
of Health and Human Services (HHS), Contractor shall report any
credible evidence that a principal, employee, subcontractor or agent
of Contractor, or any other person, has submitted a false claim under
the False Claims Act or has committed a criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity, or
similar misconduct involving those funds. Contractor shall make this
report to the SAO at http://sao.fraud.state.tx.us, and to the HHS
Office of Inspector General at http://www.oig.hhs.gov/fraud/hotline/
no later than three (3) working days from the date that Contractor has
knowledge or reason to believe such activity has taken place.
----------------------------------------------------------------------
Section X.7Criminal Activity and Disciplinary Action. Contractor
affirms that no person who has an ownership or controlling interest in
the organization or who is an agent or managing employee of the
organization has been placed on community supervision, received
deferred adjudication, is presently indicted for or has been convicted
of a criminal offense related to any financial matter, federal or
state program or felony sex crime. Contractor shall notify in writing
the contract manager assigned to the Program Attachment if it has
reason to believe Contractor, or a person with ownership or
controlling interest in the organization or who is an agent or
managing employee of the organization, an employee or volunteer of
Contractor, or a subcontractor providing services under this Contract
has engaged in any activity that would constitute a criminal offense
equal to or greater than a Class A misdemeanor or if such activity
would reasonably constitute grounds for disciplinary action by a state
or federal regulatory authority, or has been placed on community
supervision, received deferred adjudication, or been indicted for or
convicted of a criminal offense relating to involvement in any
financial matter, federal or state program or felony sex crime.
Contractor shall make the reports required by this section no later
than three (3) working days from the date that Contractor has
knowledge or reason to believe such activity has taken place.
Contractor shall not permit any person who engaged, or was alleged to
have engaged, in an activity subject to reporting under this section
to perform direct client services or have direct contact with clients,
unless otherwise directed by DSHS.
----------------------------------------------------------------------
Section X.8Retaliation Prohibited. Contractor shall not retaliate
against any person who reports a violation of, or cooperates with an
investigation regarding, any applicable law, rule, regulation or
standard to the Department, another state agency, or any federal,
state or local law enforcement official.
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Section X.9Documentation. Contractor shall maintain appropriate
documentation of all notices required under these General Provisions.
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ARTICLE XIASSURANCES AND CERTIFICATIONS
=======================================
Section XI.1Certification. Contractor certifies by execution of this
Contract to the following:
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a.
it is not disqualified under 2 CFR §376.935 or ineligible for
participation in federal or state assistance programs;
b.
neither it, nor its principals, are presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this transaction by any federal or
state department or agency in accordance with 2 CFR Parts 376 and
180 (parts A-I), 45 CFR Part 76 (or comparable federal
regulations);
c.
it has not knowingly failed to pay a single substantial debt or a
number of outstanding debts to a federal or state agency;
d.
it is not subject to an outstanding judgment in a suit against
Contractor for collection of the balance of a debt;
e.
it is in good standing with all state and/or federal agencies that
have a contracting or regulatory relationship with Contractor;
f.
that no person who has an ownership or controlling interest in
Contractor or who is an agent or managing employee of Contractor
has been convicted of a criminal offense related to involvement in
any program established under Medicare, Medicaid, or a federal
block grant;
g.
neither it, nor its principals have within the three(3)-year
period preceding this Contract, has been convicted of or had a
civil judgment rendered against them for commission of fraud or a
criminal offense in connection with obtaining, attempting to
obtain, or performing a private or public (federal, state or
local) transaction or contract under a private or public
transaction, violation of federal or state antitrust statutes
(including those proscribing price-fixing between competitors,
allocation of customers between competitors and bid-rigging), or
commission of embezzlement, theft, forgery, bribery, falsification
or destruction of records, making false statements or false
claims, tax evasion, obstruction of justice, receiving stolen
property or any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects
the present responsibility of Contactor or its principals;
h.
neither it, nor its principals is presently indicted or otherwise
criminally or civilly charged by a governmental entity (federal,
state or local) with the commission of any of the offenses
enumerated in subsection g) of this section; and
i.
neither it, nor its principals within a three(3)-year period
preceding this Contract has had one or more public transaction
(federal, state or local) terminated for cause or default.
Contractor shall include the certifications in this Article, without
modification (except as required to make applicable to the
subcontractor), in all subcontracts and solicitations for
subcontracts. Where Contractor is unable to certify to any of the
statements in this Article, Contractor shall submit an explanation to
the contract manager assigned to the Program Attachment. If
Contractor’s status with respect to the items certified in this
Article changes during the term of this Contract, Contractor shall
immediately notify the contract manager assigned to the Program
Attachment.
Section XI.2Child Support Delinquencies. As required by Tex. Fam. Code
§ 231.006, a child support obligor who is more than thirty (30)
calendar days delinquent in paying child support and a business entity
in which the obligor is a sole proprietor, partner, shareholder, or
owner with an ownership interest of at least twenty-five percent (25%)
is not eligible to receive payments from state funds under a contract
to provide property, materials, or services or receive a state-funded
grant or loan. If applicable, Contractor shall maintain its
eligibility to receive payments under this Contract, certifies that it
is not ineligible to receive the payments specified in this Contract,
and acknowledges that this Contract may be terminated and payment may
be withheld if this certification is inaccurate.
----------------------------------------------------------------------
Section XI.3Authorization. Contractor certifies that it possesses
legal authority to contract for the services described in this
Contract and that a resolution, motion or similar action has been duly
adopted or passed as an official act of Contractor’s governing body,
authorizing the binding of the organization under this Contract
including all understandings and assurances contained in this
Contract, and directing and authorizing the person identified as the
authorized representative of Contractor to act in connection with this
Contract and to provide such additional information as may be
required.
----------------------------------------------------------------------
Section XI.4Gifts and Benefits Prohibited. Contractor certifies that
it has not given, offered to give, nor intends to give at any time
hereafter, any economic opportunity, present or future employment,
gift, loan, gratuity, special discount, trip, favor, service or
anything of monetary value to a DSHS or HHSC official or employee in
connection with this Contract.
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Section XI.5Ineligibility to Receive the Contract. (a) Pursuant to
Tex. Gov. Code § 2155.004 and federal law, Contractor is ineligible to
receive this Contract if this Contract includes financial
participation by a person who received compensation from DSHS to
participate in developing, drafting or preparing the specifications,
requirements, statement(s) of work or Solicitation Document on which
this Contract is based. Contractor certifies that neither Contractor,
nor its employees, nor anyone acting for Contractor has received
compensation from DSHS for participation in the development, drafting
or preparation of specifications, requirements or statement(s) of work
for this Contract or in the Solicitation Document on which this
Contract is based; (b) pursuant to Tex. Gov. Code §§ 2155.006 and
2261.053, Contractor is ineligible to receive this Contract, if
Contractor or any person who would have financial participation in
this Contract has been convicted of violating federal law, or been
assessed a federal civil or administrative penalty, in connection with
a contract awarded by the federal government for relief, recovery or
reconstruction efforts as a result of Hurricanes Rita or Katrina or
any other disaster occurring after September 24, 2005; (c) Contractor
certifies that the individual or business entity named in this
Contract is not ineligible to receive the specified Contract under
Tex. Gov. Code §§ 2155.004, 2155.006 or 2261.053, and acknowledges
that this Contract may be terminated and payment withheld if these
certifications are inaccurate.
----------------------------------------------------------------------
Section XI.6Antitrust. Pursuant to 15 USC § 1, et seq. and Tex. Bus. &
Comm. Code § 15.01, et seq. Contractor certifies that neither
Contractor, nor anyone acting for Contractor has violated the
antitrust laws of this state or federal antitrust laws, nor
communicated directly or indirectly regarding a bid with any
competitor or any other person engaged in Contractor’s line of
business for the purpose of substantially lessening competition in
such line of business.
----------------------------------------------------------------------
Section XI.7Initiation and Completion of Work. Contractor certifies
that it shall initiate and complete the work under this Contract
within the applicable time frame prescribed in this Contract.
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ARTICLE XIIGENERAL BUSINESS OPERATIONS OF CONTRACTOR
====================================================
Section 12.01 Responsibilities and Restrictions Concerning Governing
Body, Officers and Employees. Contractor and its governing body shall
bear full responsibility for the integrity of the fiscal and
programmatic management of the organization. This provision applies to
all organizations, including Section 501(c)(3) organizations as
defined in the Internal Revenue Service Code as not-for-profit
organizations. Each member of Contractor’s governing body shall be
accountable for all funds and materials received from Department. The
responsibility of Contractor’s governing body shall also include
accountability for compliance with Department Rules, policies,
procedures, and applicable federal and state laws and regulations; and
correction of fiscal and program deficiencies identified through
self-evaluation and Department’s monitoring processes. Further,
Contractor’s governing body shall ensure separation of powers, duties,
and functions of governing body members and staff. Staff members,
including the executive director, shall not serve as voting members of
Contractor’s governing body. No member of Contractor’s governing body,
or officer or employee of Contractor shall vote for, confirm or act to
influence the employment, compensation or change in status of any
person related within the second degree of affinity or the third
degree of consanguinity (as defined in Tex. Gov. Code Chapter 573) to
the member of the governing body or the officer or any employee
authorized to employ or supervise such person. This prohibition does
not prohibit the continued employment of a person who has been
continuously employed for a period of two (2) years prior to the
election, appointment or employment of the officer, employee, or
governing body member related to such person in the prohibited degree.
These restrictions also apply to the governing body, officers and
employees of Contractor’s subcontractors. Ignorance of any Contract
provisions or other requirements contained or referred to in this
Contract will not constitute a defense or basis for waiving or
appealing such provisions or requirements.
Section XII.1Management and Control Systems. Contractor shall comply
with all the requirements of the Department’s Contractor's Financial
Procedures Manual, and any of its subsequent amendments, which is
available at the Department’s web site:
http://www.dshs.state.tx.us/contracts/cfpm.shtm. Contractor shall
maintain an appropriate contract administration system to ensure that
all terms, conditions, and specifications are met. Contractor shall
develop, implement, and maintain financial management and control
systems that meet or exceed the requirements of UGMS and adhere to
procedures detailed in Department’s Contractor’s Financial Procedures
Manual. Those requirements and procedures include, at a minimum, the
following:
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a.
financial planning, including the development of budgets that
adequately reflect all functions and resources necessary to carry
out authorized activities and the adequate determination of costs;
b.
financial management systems that include accurate accounting
records that are accessible and identify the source and
application of funds provided under each Program Attachment of
this Contract, and original source documentation substantiating
that costs are specifically and solely allocable to the Program
Attachment and are traceable from the transaction to the general
ledger; and
c.
effective internal and budgetary controls; comparison of actual
costs to budget; determination of reasonableness, allowableness,
and allocability of costs; timely and appropriate audits and
resolution of any findings; billing and collection policies; and a
mechanism capable of billing and making reasonable efforts to
collect from clients and third parties.
Section 12.03 Insurance. Contractor shall maintain insurance or other
means of repairing or replacing assets purchased with Department
funds. Contractor shall repair or replace with comparable equipment
any such equipment not covered by insurance that is lost, stolen,
damaged or destroyed. If any insured equipment purchased with DSHS
funds is lost, stolen, damaged or destroyed, Contractor shall notify
the contract manager assigned to the Program Attachment to obtain
instructions whether to submit and pursue an insurance claim.
Contractor shall use any insurance proceeds to repair the equipment or
replace the equipment with comparable equipment or remit the insurance
proceeds to DSHS.
Section XII.2Fidelity Bond. For the benefit of DSHS, Contractor is
required to carry a fidelity bond or insurance coverage equal to the
amount of funding provided under this Contract up to $100,000 that
covers each employee of Contractor handling funds under this Contract,
including person(s) authorizing payment of such funds. The fidelity
bond or insurance must provide for indemnification of losses
occasioned by (1) any fraudulent or dishonest act or acts committed by
any of Contractor’s employees, either individually or in concert with
others, and/or (2) failure of Contractor or any of its employees to
perform faithfully his/her duties or to account properly for all
monies and property received by virtue of his/her position or
employment. The bond or insurance acquired under this section must
include coverage for third party property [and include DSHS as a loss
payee or equivalent designation]. Contractor shall notify, and obtain
prior approval from, the DSHS Contract Oversight and Support Section
before settling a claim on the fidelity bond or insurance.
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Section XII.3Liability Coverage. For the benefit of DSHS, Contractor
shall at all times maintain liability insurance coverage, referred to
in Tex. Gov. Code § 2261.102, as “director and officer liability
coverage” or similar coverage for all persons in management or
governing positions within Contractor’s organization or with
management or governing authority over Contractor’s organization
(collectively “responsible persons”). Contractor shall maintain copies
of liability policies on site for inspection by DSHS and shall submit
copies of policies to DSHS upon request. This section applies to
entities that are organized as non-profit corporations under the Texas
Non-Profit Corporation Act; for-profit corporations organized under
the Texas Business Corporations Act; and any other legal entity.
Contractor shall maintain liability insurance coverage in an amount
not less than the total value of this Contract and that is sufficient
to protect the interests of Department in the event an actionable act
or omission by a responsible person damages Department’s interests.
Contractor shall notify, and obtain prior approval from, the DSHS
Contract Oversight and Support Section before settling a claim on the
insurance.
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Section XII.4Overtime Compensation. Except as provided in this
section, Contractor shall not use any of the funds provided by this
Contract to pay the premium portion of overtime. Contractor shall be
responsible for any obligations of premium overtime pay due employees.
Premium overtime pay is defined as any
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compensation paid to an individual in addition to the employee’s
normal rate of pay for hours worked in excess of normal working hours.
Funds provided under this Contract may be used to pay the premium
portion of overtime only under the following conditions: 1) with the
prior written approval of DSHS; 2) temporarily, in the case of an
emergency or an occasional operational bottleneck; 3) when employees
are performing indirect functions, such as administration,
maintenance, or accounting; 4) in performance of tests, laboratory
procedures, or similar operations that are continuous in nature and
cannot reasonably be interrupted or otherwise completed; or 5) when
lower overall cost to DSHS will result.
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Section XII.5Program Site. Contractor shall provide services only in
locations that are in compliance with all applicable local, state and
federal zoning, building, health, fire, and safety standards.
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Section XII.6Cost Allocation Plan. Contractor shall submit a Cost
Allocation Plan in the format provided in the Department’s
Contractor’s Financial Procedures Manual to the Department’s Contract
Oversight and Support Section, at Mail Code 1326, P.O. Box 149347,
Austin, Texas 78714-9347, or by email to
mailto:[email protected] no later than the 60th calendar day
after the effective date of the Contract, except when a Contractor has
a current Cost Allocation Plan on file with the Department. Contractor
shall implement and follow the applicable Cost Allocation Plan. If
Contractor’s plan is the same as [in the previous year] the plan
previously submitted to DSHS, by signing this Contract, Contractor
certifies that its current Cost Allocation Plan for the current year
is the same as [that] the plan previously submitted [to DSHS for the
previous year]. If the Cost Allocation Plan changes during the
Contract term, Contractor shall submit a new Cost Allocation Plan to
the Contract Oversight and Support Section within thirty (30) calendar
days after the effective date of the change. Cost Allocation Plans
must comply with the guidelines provided in the Department’s
Contractor’s Financial Procedures Manual located at
http://www.dshs.state.tx.us/contracts/cfpm.shtm.
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Section XII.7No Endorsement. Other than stating the fact that
Contractor has a contract with DSHS, Contractor and its subcontractors
are prohibited from publicizing the contractual relationship between
Contractor and DSHS, and from using the Department’s name, logo or
website link in any manner that is intended, or that could be
perceived, as an endorsement or sponsorship by DSHS or the State of
Texas of Contractor’s organization, program, services or product,
without the express written consent of DSHS.
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Section 12.10 Historically Underutilized Businesses (HUBs). If
Contractor was not required to submit a HUB subcontracting plan and if
subcontracting is permitted under this Program Attachment, Contractor
is encouraged to make a good faith effort to consider subcontracting
with HUBs in accordance with Tex. Gov. Code Chapter 2161 and 34 Tex.
Admin. Code § 20.1[4]0 et seq. Contractors may obtain a list of HUBs
at http://www.window.state.tx.us/procurement/prog/hub. If Contractor
has filed a HUB subcontracting plan, the plan is incorporated by
reference in this Contract. If Contractor desires to make a change in
the plan, Contractor must obtain prior approval from the Department’s
HUB Coordinator of the revised plan before proposed changes will be
effective under this Contract. Contractor shall make a good faith
effort to subcontract with HUBs during the performance of this
Contract and shall report HUB subcontract activity to the Department’s
HUB Coordinator by the 15th day of each month for the prior month’s
activity, if there was any such activity, in accordance with 34 Tex.
Admin. Code § 20.16([c] b).
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Section XII.8Buy Texas. Contractor shall purchase products and
materials produced in Texas when the products and materials are
available at a price and time comparable to products and materials
produced outside of Texas as required by Tex. Gov. Code § 2155.4441.
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Section 12.12 Contracts with Subrecipient and Vendor Subcontractors.
Contractor may enter into contracts with subrecipient subcontractors
unless restricted or otherwise prohibited in a specific Program
Attachment(s). Prior to entering into a subrecipient agreement
equaling or exceeding $100,000, Contractor shall obtain written
approval from DSHS. Contractor shall establish written policies and
procedures for competitive procurement and monitoring of subcontracts
and shall produce a subcontracting monitoring plan. Contractor shall
monitor subrecipient subcontractors for both financial and
programmatic performance and shall maintain pertinent records that
must be available for inspection by DSHS. Contractor shall ensure that
subcontractors are fully aware of the requirements placed upon them by
state/federal statutes, rules, and regulations and by the provisions
of this Contract.
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Contracts with all subcontractors, whether vendor or subrecipient,
must be in writing and include the following:
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a.
name and address of all parties and the subcontractor’s Vendor
Identification Number (VIN) or Employee Identification Number
(EIN);
b.
a detailed description of the services to be provided;
c.
measurable method and rate of payment and total not-to-exceed
amount of the contract;
d.
clearly defined and executable termination clause; and
e.
beginning and ending dates that coincide with the dates of the
applicable Program Attachment(s) or that cover a term within the
beginning and ending dates of the applicable Program
Attachment(s).
Contractor is responsible to DSHS for the performance of any
subcontractor. Contractor shall not contract with a subcontractor, at
any tier, that is debarred, suspended, or excluded from or ineligible
for participation in federal assistance programs; or if the
subcontractor would be ineligible under the following sections of
these General Provisions: Ineligibility to Receive the Contract
section (Assurances and Certifications Article); or the Conflict of
Interest or Transactions Between Related Parties sections (General
Terms Article).
Section XII.9Status of Subcontractors. Contractor shall require all
subcontractors to certify that they are not delinquent on any
repayment agreements; have not had a required license or certification
revoked; and have not had a contract terminated by the Department.
Contractors shall further require that subcontractors certify that
they have not voluntarily surrendered within the past three (3) years
any license issued by the Department.
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Section XII.10Incorporation of Terms in Subrecipient Subcontracts.
Contractor shall include in all its contracts with subrecipient
subcontractors and solicitations for subrecipient subcontracts,
without modification (except as required to make applicable to the
subcontractor), (1) the certifications stated in the Assurances and
Certifications Article; (2) the requirements in the Conflicts of
Interest section and the Transaction Between Related Parties section
of the General Terms Article; and (3) a provision granting to DSHS,
SAO, OIG, and the Comptroller General of the United States, and any of
their representatives, the right of access to inspect the work and the
premises on which any work is performed, and the right to audit the
subcontractor in accordance with the Access and Inspection Article in
these General Provisions. Each subrecipient subcontract contract must
also include a copy of these General Provisions and a copy of the
Statement of Work and any other provisions in the Program
Attachment(s) applicable to the subcontract. Contractor shall ensure
that all written agreements with subrecipient subcontractors
incorporate the terms of this Contract so that all terms, conditions,
provisions, requirements, duties and liabilities under this Contract
applicable to the services provided or activities conducted by a
subcontractor are passed down to that subcontractor. No provision of
this Contract creates privity of contract between DSHS and any
subcontractor of Contractor. If a subcontractor is unable to certify
to any of the statements in Section 12.13 or any of the certifications
stated in the Assurances and Certifications Article, Contractor shall
submit an explanation to the contract manager assigned to the Program
Attachment. If the subcontractor’s status with respect to the items
certified in Section 12.13 or the assurances stated in the Assurances
and Certifications Article changes during the term of this Contract,
Contractor shall immediately notify the contract manager assigned to
the Program Attachment.
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Section 12.15 Independent Contractor. Contractor is an independent
contractor. Contractor shall direct and be responsible for the
performance of its employees, subcontractors, joint venture
participants or agents. Contractor is not an agent or employee of the
Department or the State of Texas for any purpose whatsoever. For
purposes of this Contract, Contractor acknowledges that its employees,
subcontractors, joint venture participants or agents will not be
eligible for unemployment compensation from the Department or the
State of Texas.
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Section XII.11Authority to Bind. The person or persons signing this
Contract on behalf of Contractor, or representing themselves as
signing this Contract on behalf of Contractor, warrant and guarantee
that they have been duly authorized by Contractor to execute this
Contract for Contractor and to validly and legally bind Contractor to
all of its terms.
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Section XII.12Tax Liability. Contractor shall comply with all state
and federal tax laws and is solely responsible for filing all required
state and federal tax forms and making all tax payments. If the
Department discovers that Contractor has failed to remain current on a
liability to the IRS, this Contract will be subject to remedies and
sanctions under this Contract, including immediate termination at the
Department’s discretion. If the Contract is terminated under this
section, the Department will not enter into a contract with Contractor
for three (3) years from the date of termination.
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Section XII.13Notice of Organizational Change. Contractor shall submit
written notice to the contract manager assigned to the Program
Attachment within ten (10) business days of any change to the
Contractor's name; contact information; key personnel, officer,
director or partner; organizational structure, such as merger,
acquisition or change in form of business; legal standing; or
authority to do business in Texas. A change in Contractor’s name and
certain changes in organizational structure require an amendment to
this Contract in accordance with the Amendments section of these
General Provisions.
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Section XII.14Quality Management. Contractor shall comply with quality
management requirements as directed by the Department.
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Section XII.15Equipment (Including Controlled Assets) [Purchases].
Equipment means an article of nonexpendable, tangible personal
property having a useful lifetime of more than one year and an
acquisition cost of $5,000 or more, and “controlled assets.”
Controlled assets include firearms regardless of the acquisition cost,
and the following assets with an acquisition cost of $500 or more, but
less than $5,000: desktop and laptop computers (including notebooks,
tablets and similar devices), non-portable printers and copiers,
emergency management equipment, communication devices and systems,
medical and laboratory equipment, and media equipment. Prior approval
by DSHS of the purchase of controlled assets is not required.
Contractors on a cost reimbursement payment method shall inventory all
equipment, including controlled assets. Contractor shall initiate the
purchase of all equipment approved in writing by DSHS and any
controlled assets, in the first quarter of the Contract or Program
Attachment term, as applicable. Failure to timely initiate the
purchase of controlled assets or other equipment may result in the
loss of availability of funds for the purchase of equipment. Requests
to purchase controlled assets, or previously approved equipment after
the first quarter of the Program Attachment must be submitted to the
contract manager assigned to the Program Attachment.
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Section XII.16Supplies. Supplies are defined as consumable items [purchase
of equipment may result in the loss of availability of funds for the
purchase of equipment.] necessary to carry out the services under this
Contract including medical supplies, drugs, janitorial supplies,
office supplies, patient educational supplies, software, and any items
of tangible personal property other than those defined as equipment
above.
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Section XII.17Changes to Equipment List. All items of equipment, other
than controlled assets, to be purchased with funds under this Contract
must be itemized in Contractor’s equipment list as finally approved by
the Department in the executed Contract. Any changes to the approved
equipment list in the executed Contract must be approved in writing by
Department prior to the purchase of equipment. Contractor shall submit
to the contract manager assigned to the Program Attachment, a written
description including complete product specifications and need
justification prior to purchasing any item of unapproved equipment. If
approved, Department will acknowledge its approval by means of a
written amendment or by written acceptance of Contractor’s Contract
Revision Request, as appropriate; or, in the case of minor changes to
Contractor’s approved equipment list, by email in accordance with the
Contractor’s Financial Procedures Manual .
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Section XII.18Property Inventory and Protection of Assets. Contractor
shall maintain an inventory of equipment, including controlled assets,
and property described in the Other Intangible Property section of
Article XIII and submit an annual cumulative report of the equipment
and other property on Form GC-11 (Contractor’s Property Inventory
Report) to the Department’s Contract Oversight and Support Section,
Mail Code 1326, P.O. Box 149347, Austin, Texas 78714-9347, no later
than October 15th of each year. The report is located on the DSHS
website at http://www.dshs.state.tx.us/contracts/forms.shtm.
Contractor shall maintain, repair, and protect assets under this
Contract to assure their full availability and usefulness. If
Contractor is indemnified, reimbursed, or otherwise compensated for
any loss of, destruction of, or damage to the assets provided or
obtained under this Contract, Contractor shall use the proceeds to
repair or replace those assets.
----------------------------------------------------------------------
Section XII.19Bankruptcy. In the event of bankruptcy, Contractor shall
sever Department property, equipment, and supplies in possession of
Contractor from the bankruptcy, and title must revert to Department.
If directed by DSHS, Contractor shall return all such property,
equipment and supplies to DSHS. Contractor shall ensure that its
subcontracts, if any, contain a specific provision requiring that in
the event the subcontractor’s bankruptcy, the subcontractor must sever
Department property, equipment, and supplies in possession of the
subcontractor from the bankruptcy, and title must revert to
Department, who may require that the property, equipment and supplies
be returned to DSHS.
----------------------------------------------------------------------
Section XII.20Title to Property. At the conclusion of the contractual
relationship between the Department and Contractor, for any reason,
title to any remaining equipment and supplies purchased with funds
under this Contract reverts to Department. Title may be transferred to
any other party designated by Department. The Department may, at its
option and to the extent allowed by law, transfer the reversionary
interest to such property to Contractor.
----------------------------------------------------------------------
Section XII.21Property Acquisitions. Department funds must not be used
to purchase buildings or real property. Any costs related to the
initial acquisition of the buildings or real property are not
allowable.
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Section XII.22Disposition of Property. Contractor shall follow the
procedures in the American Hospital Association’s (AHA’s) “Estimated
Useful Lives of Depreciable Hospital Assets” in disposing, at any time
during or after the Contract term, of equipment purchased with the
Department funds, except when federal or state statutory requirements
supersede or when the equipment requires licensure or registration by
the state, or when the acquisition price of the equipment is equal to
or greater than $5,000. All other equipment not listed in the AHA
reference (other than equipment that requires licensure or
registration or that has an acquisition cost equal to or greater than
$5,000) will be controlled by the requirements of UGMS. If, prior to
the end of the useful life, any item of equipment is no longer needed
to perform services under this Contract, or becomes inoperable, or if
the equipment requires licensure or registration or had an acquisition
price equal to or greater than $5,000, Contractor shall request
disposition approval and instructions in writing from the contract
manager assigned to the Program Attachment. After an item reaches the
end of its useful life, Contractor shall ensure that disposition of
any equipment is in accordance with Generally Accepted Accounting
Principles, and any applicable federal guidance.
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Section XII.23Closeout of Equipment. At the end of the term of a
Program Attachment that has no additional renewals or that will not be
renewed (Closeout) or when a Program Attachment is otherwise
terminated, Contractor shall submit to the contract manager assigned
to the Program Attachment, an inventory of equipment purchased with
Department funds and request disposition instructions for such
equipment. All equipment purchased with Department funds must be
secured by Contractor at the time of Closeout or termination of the
Program Attachment and must be disposed of according to the
Department’s disposition instructions, which may include return of the
equipment to DSHS or transfer of possession to another DSHS
contractor, at Contractor’s expense.
----------------------------------------------------------------------
Section XII.24Assets as Collateral Prohibited. Contractors on a cost
reimbursement payment method shall not encumber equipment purchased
with Department funds without prior written approval from the
Department.
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ARTICLE XIIIGENERAL TERMS
=========================
Section XIII.1Assignment. Contractor shall not transfer, assign, or
sell its interest, in whole or in part, in this Contract, or in any
equipment purchased with funds from this Contract, without the prior
written consent of the Department.
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Section XIII.2Lobbying. Contractor shall comply with Tex. Gov. Code §
556.0055, which prohibits contractors who receive state funds from
using those funds to pay lobbying expenses. Further, Contractor shall
not use funds paid under this Contract, either directly or indirectly,
to support the enactment, repeal, modification, or adoption of any
law, regulation or policy at any level of government, or to pay the
salary or expenses of any person related to any activity designed to
influence legislation, regulation, policy or appropriations pending
before Congress or the state legislature, or for influencing or
attempting to influence an officer or employee of any federal or state
agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the awarding of
any contract or the extension, continuation, renewal, amendment, or
modification of any contract (31 USC § 1352 and UGMS). If at any time
this Contract exceeds $100,000 of federal funds, Contractor shall file
with the contract manager assigned to the Program Attachment a
declaration containing the name of any registrant under the Lobbying
Disclosure Act of 1995 who has made lobbying contacts on behalf of
Contractor in connection with this Contract, a certification that none
of the funds provided by Department have been or will be used for
payment to lobbyists, and disclosure of the names of any and all
registered lobbyists with whom Contractor has an agreement. Contractor
shall file the declaration, certification, and disclosure at the time
of application for this Contract; upon execution of this Contract
unless Contractor previously filed a declaration, certification, or
disclosure form in connection with the award; and at the end of each
calendar quarter in which any event occurs that materially affects the
accuracy of the information contained in any declaration,
certification, or disclosure previously filed. Contractor shall
require any person who requests or receives a subcontract to file the
same declaration, certification, and disclosure with the contract
manager assigned to the Program Attachment. Contractor shall also
comply, as applicable, with the lobbying restrictions and requirements
in 2 CFR Part 230 (OMB Circulars A-122), Appendix B paragraph 25; 2
CFR Part 225 (A-87) Appendix B section 24; 2 CFR §215.27 (A-110) and 2
CFR Part 220 (A-21) Appendix A, subsection J.17 and J.28. Contractor
shall include this provision in any subcontracts.
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Section XIII.3Conflict of Interest. Contractor represents to the
Department that it and its -subcontractors, if any, do not have nor
shall Contractor or its subcontractors knowingly acquire or retain,
any financial or other interest that would conflict in any manner with
the performance of their obligations under this Contract. Potential
conflicts of interest include, but are not limited to, an existing or
potential business or personal relationship between Contractor (or
subcontractor), its principal (or a member of the principal’s
immediate family), or any affiliate or subcontractor and the
Department or HHSC, their commissioners or employees, or any other
entity or person involved in any way in any project that is the
subject of this Contract. Contractor shall establish safeguards to
prohibit employees and subcontractors and their employees from using
their positions for a purpose that constitutes or presents the
appearance of personal or organizational conflict of interest or
personal gain. If, at any time during the term of this Contract,
Contractor or any of its subcontractors has a conflict of interest or
potential conflict of interest, Contractor shall disclose the actual
or potential conflict of interest to the contract manager assigned to
the Program Attachment within ten (10) days of when Contractor becomes
aware of the existence of the actual or potential conflict of
interest. Contractor shall require each of its subcontractors to
report to Contractor any conflict of interest or potential conflict of
interest the subcontractor has or may have within ten (10) days of
when the subcontractor becomes aware of the actual or potential
conflict of interest.
----------------------------------------------------------------------
Section XIII.4Transactions Between Related Parties. Contractor shall
identify and report to DSHS any transactions between Contractor and a
related party that is part of the work that the Department is
purchasing under this Contract before entering into the transaction or
immediately upon discovery. Contractor shall submit to the contract
manager assigned to the Program Attachment the name, address and
telephone number of the related party, how the party is related to
Contractor and the work the related party will perform under this
Contract. A related party is a person or entity related to Contractor
by blood or marriage, common ownership or any association that permits
either to significantly influence or direct the actions or policies of
the other. Contractor, for purposes of reporting transactions between
related parties, includes the entity contracting with the Department
under this Contract as well as the chief executive officer, chief
financial officer and program director of Contractor. Contractor shall
comply with Tex. Gov. Code Chapter 573. Contractor shall maintain
records and supply any additional information requested by the
Department, regarding a transaction between related parties, needed to
enable the Department to determine the appropriateness of the
transaction pursuant to applicable state or federal law, regulations
or circulars, which may include 45 CFR part 74, OMB Circ. No. A-110, 2
CFR § 215.42, and UGMS.
----------------------------------------------------------------------
Section XIII.5Intellectual Property. Tex. Health & Safety Code §
12.020 authorizes DSHS to protect intellectual property developed as a
result of this Contract.
----------------------------------------------------------------------
a.
“Intellectual property” means created property that may be
protected under copyright, patent, or trademark/service mark law.
b.
For purposes of this Contract intellectual property prepared for
DSHS use, or a work specially ordered or commissioned through a
contract for DSHS use is “work made for hire.” DSHS owns works
made for hire unless it agrees otherwise by contract. To the
extent that title and interest to any such work may not, by
operation of law, vest in DSHS, or such work may not be considered
a work made for hire, Contractor irrevocably assigns the rights,
title and interest therein to DSHS. DSHS has the right to obtain
and hold in its name any and all patents, copyrights,
registrations or other such protections as may be appropriate to
the subject matter, and any extensions and renewals thereof.
Contractor shall give DSHS and the State of Texas, as well as any
person designated by DSHS and the State of Texas, all assistance
required to perfect the rights defined herein without charge or
expense beyond those amounts payable to Contractor for goods
provided or services rendered under this Contract.
c.
If federal funds are used to finance activities supported by this
Contract that result in the production of intellectual property,
the federal awarding agency reserves a royalty-free, nonexclusive,
and irrevocable license to reproduce, publish, or otherwise use,
and to authorize others to use, for federal government purposes
(1) the copyright in any intellectual property developed under
this Contract, including any subcontract; and (2) any rights of
copyright to which a Contractor purchases ownership with contract
funds. Contractor shall place an acknowledgment of federal
awarding agency grant support and a disclaimer, as appropriate, on
any publication written or published with such support and, if
feasible, on any publication reporting the results of or
describing a grant-supported activity. An acknowledgment must be
to the effect that “This publication was made possible by grant
number _____ from (federal awarding agency)” or “The project
described was supported by grant number ______ from (federal
awarding agency)” and “Its contents are solely the responsibility
of the authors and do not necessarily represent the official views
of the (federal awarding agency).”
d.
If the terms of a federal grant award the copyright to Contractor,
DSHS reserves a royalty-free, nonexclusive, worldwide and
irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for DSHS, public health, and state
governmental noncommercial purposes (1) the copyright, trademark,
service mark, and/or patent on an invention, discovery, or
improvement to any process, machine, manufacture, or composition
of matter; products; technology; scientific information; trade
secrets; and computer software, in any work developed under a
grant, subgrant, or contract under a grant or subgrant; and (2)
any rights of copyright, service or trade marks or patents to
which a grantee, subgrantee or a Contractor purchases ownership
with contract funds.
e.
If the results of the contract performance are subject to
copyright law, Contractor cannot publish those results without
prior review and approval of DSHS. Contractor shall submit
requests for review and approval to the contract manager assigned
to the Program Attachment.
Section XIII.6Other Intangible Property. At the conclusion of the
contractual relationship between Department and Contractor, for any
reason, Department shall have the sole ownership rights and interest
in all non-copyrightable intangible property that was developed,
produced or obtained by Contractor as a specific requirement under
this Contract or under any grant that funds this Contract, such as
domain names, URLs, software licenses with a value of $500 or more,
etc. Contractor shall inventory all such non-copyrightable intangible
property. Contractor shall cooperate with Department and perform all
actions necessary to transfer ownership of such property to the
Department or its designee, or otherwise affirm Department’s ownership
rights and interest in such property. This provision will survive the
termination or expiration of this Contract.
----------------------------------------------------------------------
Section XIII.7Severability and Ambiguity. If any provision of this
Contract is construed to be illegal or invalid, the illegal or invalid
provision will be deemed stricken and deleted to the same extent and
effect as if never incorporated, but all other provisions will
continue. The Parties represent and agree that the language contained
in this Contract is to be construed as jointly drafted, proposed and
accepted.
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Section XIII.8Legal Notice. Any notice required or permitted to be
given by the provisions of this Contract will be deemed to have been
received by a Party on the third business day after the date on which
it was mailed to the Party at the address specified by the Party to
the other Party in writing or, if sent by certified mail, on the date
of receipt.
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Section XIII.9Successors. This Contract will be binding upon the
Parties and their successors and assignees, except as expressly
provided in this Contract.
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Section XIII.10Headings. The articles and section headings used in
this Contract are for convenience of reference only and will not be
construed in any way to define, limit or describe the scope or intent
of any provisions.
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Section XIII.11Parties. The Parties represent to each other that they
are entities fully familiar with transactions of the kind reflected by
the contract documents, and are capable of understanding the
terminology and meaning of their terms and conditions and of obtaining
independent legal advice pertaining to this Contract.
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Section XIII.12Survivability of Terms. Termination or expiration of
this Contract or a Program Attachment for any reason will not release
either Party from any liabilities or obligations in this Contract that
(a) the Parties have expressly agreed will survive any such
termination or expiration, or (b) remain to be performed or (c) by
their nature would be intended to be applicable following any such
termination or expiration.
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Section XIII.13Direct Operation. At the Department’s discretion, the
Department may temporarily assume operations of a Contractor’s program
or programs funded under this Contract when the continued operation of
the program by Contractor puts at risk the health or safety of clients
and/or participants served by Contractor.
----------------------------------------------------------------------
Section XIII.14Customer Service Information. If requested, Contractor
shall supply such information as required by the Department to comply
with the provisions of Tex. Gov. Code Chapter 2114 regarding Customer
Service surveys.
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Section XIII.15Amendment. The Parties agree that the Department may
unilaterally reduce funds pursuant to the terms of this Contract
without the written agreement of Contractor. All other amendments to
this Contract must be in writing and agreed to by both Parties, except
as otherwise specified in the Contractor’s Notification of Change to
Certain Contract Provisions section or the Contractor’s Request for
Revision to Certain Contract Provisions section of this Article.
Contractor’s request for certain budget revisions or other amendments
must be submitted in writing, including a justification for the
request, to the contract manager assigned to the Program Attachment;
and if a budget revision or amendment is requested during the last
quarter of the Contract or Program Attachment term, as applicable,
Contractor’s written justification must include a reason for the delay
in making the request. Revision or other amendment requests may be
granted at the discretion of DSHS. Except as otherwise provided in
this Article, Contractor shall not perform or produce, and DSHS will
not pay for the performance or production of, different or additional
goods, services, work or products except pursuant to an amendment of
this Contract that is executed in compliance with this section; and
DSHS will not waive any term, covenant, or condition of this Contract
unless by amendment or otherwise in compliance with this Article.
----------------------------------------------------------------------
Section XIII.16Contractor’s Notification of Change to Certain Contract
Provisions. The following changes may be made to this Contract without
a written amendment or the Department’s prior approval:
----------------------------------------------------------------------
a.
contractor’s contact person and contact information;
b.
contact information for key personnel, as stated in Contractor’s
response to the Solicitation Document, if any;
c.
cumulative budget transfers that exceed [10] 25% among direct cost
categories, other than the equipment category, of cost
reimbursement contract Program Attachments of less than $100,000,
provided that the total budget amount is unchanged (This
subsection does not apply to contracts funded by funding sources
that have different percentage requirements);
d.
minor corrections or clarifications to the Contract language that
in no way alter the scope of work, objectives or performance
measures; and
e.
a change in Contractor’s share of the budget concerning non-DSHS
funding other than program income and match, regardless of the
amount of the change, provided that in changing the budget,
Contractor is not supplanting DSHS funds.
Contractor within ten (10) calendar days shall notify in writing the
contract manager assigned to the Program Attachment of any change
enumerated in this section. The notification may be by letter, fax or
email. Except for contracts funded by funding sources that have
different percentage requirements, cumulative budget line item
transfers of [10] 25% or less among direct cost categories, other than
equipment, of cost reimbursement contracts of any amount do not
require written amendment or prior approval or notification.
Section 13.17 Contractor’s Request for Revision of Certain Contract
Provisions. A Contractor’s Revision Request is an alternative method
for amending certain specified provisions of this Contract that is
initiated by Contractor, but must be approved by DSHS. The following
amendments to this Contract may be made through a Contractor’s
Revision Request, rather than through the amendment process described
in the Amendment section of this Article:
---------------------------------------------------------------------
a.
cumulative budget transfers among direct cost categories, other
than the equipment category, that exceed [10] 25% of Program
Attachments of $100,000 or more, provided that the total budget
amount is unchanged (This subsection does not apply to contracts
funded by funding sources that have different percentage
requirements);
b.
budget transfer to other categories of funds for direct payment to
trainees for training allowances;
c.
change in clinic hours or location;
d.
change in the equipment list substituting an item of equipment
equivalent to an item of equipment on the approved budget;
e.
changes in the equipment category of a previously approved
equipment budget [(other than acquisition of additional equipment,
which requires an amendment to this Contract); [and]
f.
changes specified in applicable OMB Circular cost principles as
requiring prior approval, regardless of dollar threshold (e.g.,
foreign travel expenses, overtime premiums, membership fees; and
g.
cumulative budget transfers into or out of the equipment category
that do not exceed 10% of any Program Attachment, provided that
the total budget amount is unchanged (cumulative transfers from or
to the equipment category that equal or exceed 10% of any Program
Attachment require an amendment to this Contract as described in
the Amendment section of this Article).
In order to request a revision of any of the enumerated provisions,
Contractor shall obtain a Contract Revision Request form from the DSHS
website available at http://www.dshs.state.tx.us/grants/forms.shtm,
and complete the form as directed by the Department. Two copies of the
completed form must be signed by Contractor’s representative who is
authorized to sign contracts on behalf of Contractor, and both
original, signed forms must be submitted to the contract manager
assigned to the Program Attachment. Any approved revision will not be
effective unless signed by the DSHS Director of the Client Services
Contracting Unit. A separate Contractor Revision Request is required
for each Program Attachment to be revised. Circumstances of a
requested contract revision may indicate the need for an amendment
described in the Amendment section of this Article rather than a
contract revision amendment under this section.
Section 13.18 Immunity Not Waived. THE PARTIES EXPRESSLY AGREE THAT NO
PROVISION OF THIS CONTRACT IS IN ANY WAY INTENDED TO CONSTITUTE A
WAIVER BY DEPARTMENT OR THE STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT
OR FROM LIABILITY THAT DEPARTMENT OR THE STATE OF TEXAS MAY HAVE BY
OPERATION OF LAW.
----------------------------------------------------------------------
Section 13.19 Hold Harmless and Indemnification. Contractor, as an
independent contractor, agrees to hold Department, the State of Texas,
individual state employees and officers, and the federal government
harmless and to indemnify them from any and all liability, suits,
claims, losses, damages and judgments; and to pay all costs, fees, and
damages to the extent that such costs, fees, and damages arise from
performance or nonperformance of Contractor, its employees,
subcontractors, joint venture participants or agents under this
Contract.
----------------------------------------------------------------------
Section 13.20 Waiver. Acceptance by either Party of partial
performance or failure to complain of any action, non-action or
default under this Contract will not constitute a waiver of either
Party’s rights under this Contract.
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Section 13.21 Electronic and Information Resources Accessibility and
Security Standards. As required by 1 Tex. Admin. Code Chapters 213 and
206, as a state agency, DSHS must procure products that comply with
the State of Texas Accessibility requirements for Electronic and
Information Resources specified in 1 Tex. Admin. Code Chapter 213 and
Website Accessibility Standards/Specifications specified in 1 Tex.
Admin. Code Chapter 206 (collectively EIR Standards) when such
products are available in the commercial marketplace or when such
products are developed in response to a procurement solicitation. If
performance under this Contract includes the development, modification
or maintenance of a website or other electronic and information
resources for DSHS or for the public on behalf of DSHS, Contractor
certifies that the website or other electronic and information
resources comply with the EIR Standards. Contractor further certifies
that any network hardware or software purchased or provided under this
Contract has undergone independent certification testing for known and
relevant vulnerabilities, in accordance with rules adopted by
Department of Information Resources.
Section 13.22 Force Majeure. Neither Party will be liable for any
failure or delay in performing all or some of its obligations, as
applicable, under this Contract if such failure or delay is due to any
cause beyond the reasonable control of such Party, including, but not
limited to, extraordinarily severe weather, strikes, natural
disasters, fire, civil disturbance, epidemic, war, court order, or
acts of God. The existence of any such cause of delay or failure will
extend the period of performance in the exercise of reasonable
diligence until after the cause of the delay or failure no longer
exists and, if applicable, for any reasonable period of time
thereafter required to resume performance. A Party, within a period of
time reasonable under the circumstances, must inform the other by any
reasonable method (phone, email, etc.) and, as soon as practicable,
must submit written notice with proof of receipt, of the existence of
a force majeure event or otherwise waive the right as a defense to
non-performance.
Section 13.23 Interim Contracts. The Parties agree that the Contract
and/or any of its Program Attachments will automatically continue as
an “Interim Contract” beyond the expiration date of the term of the
Contract or Program Attachment(s), as applicable, under the following
circumstances: (1) on or shortly prior to the expiration date of the
Contract or Program Attachment, there is a state of disaster declared
by the Governor that affects the ability or resources of the DSHS
contract or program staff managing the Contract to complete in a
timely manner the extension, renewal, or other standard contract
process for the Contract or Program Attachment; and (2) DSHS makes the
determination in its sole discretion that an Interim Contract is
appropriate under the circumstances. DSHS will notify Contractor
promptly in writing if such a determination is made. The notice will
specify whether DSHS is extending the Contract or Program Attachment
for additional time for Contractor to perform or complete the
previously contracted goods and services (with no new or additional
funding) or is purchasing additional goods and services as described
in the Program Attachment for the term of the Interim Contract, or
both. The notice will include billing instructions and detailed
information on how DSHS will fund the goods or services to be procured
during the Interim Contract term. The Interim Contract will terminate
thirty (30) days after the disaster declaration is terminated unless
the Parties agree to a shorter period of time.
Section 13.24 Cooperation and Communication. Contractor shall
cooperate with Department staff and, as applicable, other DSHS
contractors, and shall promptly comply with requests from DSHS for
information or responses to DSHS inquiries concerning Contractor’s
duties or responsibilities under this Contract.
ARTICLE XIVBREACH OF CONTRACT AND REMEDIES FOR NON-COMPLIANCE
=============================================================
Section XIV.1Actions Constituting Breach of Contract. Actions or
inactions that constitute breach of contract include, but are not
limited to, the following:
-----------------------------------------------------------------
a.
failure to properly provide the services and/or goods purchased
under this Contract;
b.
failure to comply with any provision of this Contract, including
failure to comply with all applicable statutes, rules or
regulations;
c.
failure to pay refunds or penalties owed to the Department;
d.
failure to comply with a repayment agreement with the Department
or agreed order issued by the Department;
e.
failure by Contractor to provide a full accounting of funds
expended under this Contract;
f.
discovery of a material misrepresentation in any aspect of
Contractor’s application or response to the Solicitation Document;
g.
any misrepresentation in the assurances and certifications in
Contractor’s application or response to the Solicitation Document
or in this Contract; or
h.
Contractor is on or is added to the Excluded Parties List System
(EPLS).
Section XIV.2General Remedies and Sanctions. The Department will
monitor Contractor for both programmatic and financial compliance. The
remedies and sanctions in this section are available to the Department
against Contractor and any entity that subcontracts with Contractor
for provision of services or goods. HHSC OIG may investigate, audit
and impose or recommend imposition of remedies or sanctions to
Department for any breach of this Contract and may monitor Contractor
for financial compliance. The Department may impose one or more
remedies or sanctions for each item of noncompliance and will
determine remedies or sanctions on a case-by-case basis. Contractor is
responsible for complying with all of the terms of this Contract. The
listing of or use of one or more of the remedies or sanctions in this
section does not relieve Contractor of any obligations under this
Contract. A state or federal statute, rule or regulation, or federal
guideline will prevail over the provisions of this Article unless the
statute, rule, regulation, or guideline can be read together with the
provision(s) of this Article to give effect to both. If Contractor
breaches this Contract by failing to comply with one or more of the
terms of this Contract, including but not limited to compliance with
applicable statutes, rules or regulations, the Department may take one
or more of the following actions:
----------------------------------------------------------------------
a.
terminate this Contract or a Program Attachment of this Contract
as it relates to a specific program type. In the case of
termination, the Department will inform Contractor of the
termination no less than thirty (30) calendar days before the
effective date of the termination in a notice of termination,
except for circumstances that require immediate termination as
described in the Emergency Action section of this Article. The
notice of termination will state the effective date of the
termination, the reasons for the termination, and, if applicable,
alert Contractor of the opportunity to request a hearing on the
termination pursuant to Tex. Gov. Code Chapter 2105 regarding
administration of Block Grants. Contractor shall not make any
claim for payment or reimbursement for services provided from the
effective date of termination;
b.
suspend all or part of this Contract. Suspension is an action
taken by the Department in which the Contractor is notified to
temporarily (1) discontinue performance of all or part of the
Contract, and/or (2) discontinue incurring expenses otherwise
allowable under the Contract as of the effective date of the
suspension, pending DSHS’s determination to terminate or amend the
Contract or permit the Contractor to resume performance and/or
incur allowable expenses. Contractor shall not bill DSHS for
services performed during suspension, and Contractor’s costs
resulting from obligations incurred by Contractor during a
suspension are not allowable unless expressly authorized by the
notice of suspension;
c.
deny additional or future contracts with Contractor;
d.
reduce the funding amount for failure to 1) provide goods and
services as described in this Contract or consistent with Contract
performance expectations, 2) achieve or maintain the proposed
level of service, 3) expend funds appropriately and at a rate that
will make full use of the award, or 4) achieve local match, if
required;
e.
disallow costs and credit for matching funds, if any, for all or
part of the activities or action not in compliance;
f.
temporarily withhold cash payments. Temporarily withholding cash
payments means the temporary withholding of a working capital
advance, if applicable, or reimbursements or payments to
Contractor for proper charges or obligations incurred, pending
resolution of
issues of noncompliance with conditions of this Contract or
indebtedness to the United States or to the State of Texas;
g.
permanently withhold cash payments. Permanent withholding of cash
payment means that Department retains funds billed by Contractor
for (1) unallowable, undocumented, disputed, inaccurate, improper,
or erroneous billings; (2) material failure to comply with
Contract provisions; or (3) indebtedness to the United States or
to the State of Texas;
h.
declare this Contract void upon the Department’s determination
that this Contract was obtained fraudulently or upon the
Department’s determination that this Contract was illegal or
invalid from this Contract’s inception and demand repayment of any
funds paid under this Contract;
i.
request that Contractor be removed from the Centralized Master
Bidders List (CMBL) or any other state bid list, and barred from
participating in future contracting opportunities with the State
of Texas;
j.
delay execution of a new contract or contract renewal with
Contractor while other imposed or proposed sanctions are pending
resolution;
k.
place Contractor on probation. Probation means that Contractor
will be placed on accelerated monitoring for a period not to
exceed six (6) months at which time items of noncompliance must be
resolved or substantial improvement shown by Contractor.
Accelerated monitoring means more frequent or more extensive
monitoring will be performed by Department than would routinely be
conducted;
l.
require Contractor to obtain technical or managerial assistance;
m.
establish additional prior approvals for expenditure of funds by
Contractor;
n.
require additional or more detailed, financial and/or programmatic
reports to be submitted by Contractor;
o.
demand repayment from Contractor when it is verified that
Contractor has been overpaid, e.g., because of disallowed costs,
payments not supported by proper documentation, improper billing
or accounting practices, or failure to comply with Contract terms;
p.
pursue a claim for damages as a result of breach of contract;
q.
require Contractor to prohibit any employee or volunteer of
Contractor from performing under this Contract or having direct
contact with DSHS-funded clients or participants, or require
removal of any employee, volunteer, officer or governing body
member, if the employee, volunteer, officer or member of the
governing body has been indicted or convicted of the misuse of
state or federal funds, fraud or illegal acts that are in
contraindication to continued obligations under this Contract, as
reasonably determined by DSHS;
r.
withhold any payments to Contractor to satisfy any recoupment,
liquidated damages, match insufficiency, or any penalty (if the
penalty is permitted by statute) imposed by DSHS, and take
repayment from funds available under this Contract in amounts
necessary to fulfill Contractor’s payment or repayment
obligations;
s.
reduce the Contract term;
t.
recoup improper payments when it is verified that Contractor has
been overpaid, e.g., because of disallowed costs, payments not
supported by proper documentation, improper billing or accounting
practices or failure to comply with Contract terms;
u.
assess liquidated damages;
v.
demand repayment of an amount equal to the amount of any match
Contractor failed to provide, as determined by DSHS;
w.
impose other remedies, sanctions or penalties permitted by
statute.
Section XIV.3Notice of Remedies or Sanctions. Department will formally
notify Contractor in writing when a remedy or sanction is imposed
(with the exception of accelerated monitoring, which may be
unannounced), stating the nature of the remedies and sanction(s), the
reasons for imposing them, the corrective actions, if any, that must
be taken before the actions will be removed and the time allowed for
completing the corrective actions, and the method, if any, of
requesting reconsideration of the remedies and sanctions imposed.
Other than in the case of repayment or recoupment, Contractor is
required to file, within fifteen (15) calendar days of receipt of
notice, a written response to Department acknowledging receipt of such
notice. If requested by the Department, the written response must
state how Contractor shall correct the noncompliance (corrective
action plan) or demonstrate in writing that the findings on which the
remedies or sanction(s) are based are either invalid or do not warrant
the remedies or sanction(s). If Department determines that a remedy or
sanction is warranted, unless the remedy or sanction is subject to
review under a federal or state statute, regulation, rule, or
guideline, Department’s decision is final. Department will provide
written notice to Contractor of Department’s decision. If required by
the Department, Contractor shall submit a corrective action plan for
DSHS approval and take corrective action as stated in the approved
corrective action plan. If DSHS determines that repayment is
warranted, DSHS will issue a demand letter to Contractor for
repayment. If full repayment is not received within the time limit
stated in the demand letter, and if recoupment is available, DSHS will
recoup the amount due to DSHS from funds otherwise due to Contractor
under this Contract.
----------------------------------------------------------------------
Section XIV.4Emergency Action. In an emergency, Department may
immediately terminate or suspend all or part of this Contract,
temporarily or permanently withhold cash payments, deny future
contract awards, or delay contract execution by delivering written
notice to Contractor, by any verifiable method, stating the reason for
the emergency action. An “emergency” is defined as the following:
----------------------------------------------------------------------
a.
Contractor is noncompliant and the noncompliance has a direct
adverse effect on the public or client health, welfare or safety.
The direct adverse effect may be programmatic or financial and may
include failing to provide services, providing inadequate
services, providing unnecessary services, or using resources so
that the public or clients do not receive the benefits
contemplated by the scope of work or performance measures; or
b.
Contractor is expending funds inappropriately.
Whether Contractor’s conduct or noncompliance is an emergency will be
determined by Department on a case-by-case basis and will be based
upon the nature of the noncompliance or conduct.
ARTICLE XVCLAIMS AGAINST THE DEPARTMENT
=======================================
Section XV.1Breach of Contract Claim. The process for a breach of
contract claim against the Department provided for in Tex. Gov. Code
Chapter 2260 and implemented in Department Rules §§ 4.11- 4.24 will be
used by DSHS and Contractor to attempt to resolve any breach of
contract claim against DSHS.
----------------------------------------------------------------------
Section XV.2Notice. Contractor’s claims for breach of this Contract
that the Parties cannot resolve in the ordinary course of business
must be submitted to the negotiation process provided in Tex. Gov Code
Chapter 2260, subchapter B. To initiate the process, Contractor shall
submit written notice, as required by subchapter B, to DSHS’s Office
of General Counsel. The notice must specifically state that the
provisions of Chapter 2260, subchapter B, are being invoked. A copy of
the notice must also be given to all other representatives of DSHS and
Contractor. Subchapter B is a condition precedent to the filing of a
contested case proceeding under Tex. Gov. Code Chapter 2260,
subchapter C.
----------------------------------------------------------------------
Section XV.3Sole Remedy. The contested case process provided in Tex.
Gov. Code Chapter 2260, subchapter C, is Contractor’s sole and
exclusive process for seeking a remedy for any and all alleged
breaches of contract by DSHS if the Parties are unable to resolve
their disputes under this Article.
--------------------------------------------------------------------
Section XV.4Condition Precedent to Suit. Compliance with the contested
case process provided in Tex. Gov. Code Chapter 2260, subchapter C, is
a condition precedent to seeking consent to sue from the Legislature
under Tex. Civ. Prac. & Rem. Code Chapter 107. Neither the execution
of this Contract by DSHS nor any other conduct of any representative
of DSHS relating to this Contract will be considered a waiver of
sovereign immunity to suit.
----------------------------------------------------------------------
Section XV.5Performance Not Suspended. Neither the occurrence of an
event nor the pendency of a claim constitutes grounds for the
suspension of performance by Contractor, in whole or in part.
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ARTICLE XVITERMINATION AND TEMPORARY SUSPENSION
===============================================
Section XVI.1Expiration of Contract or Program Attachment(s). Except
as provided in the Survivability of Terms section of the General Terms
Article, Contractor’s service obligations stated in each Program
Attachment will end upon the expiration date of that Program
Attachment unless extended or renewed by written amendment. Prior to
completion of the term of all Program Attachments, all or a part of
this Contract may be terminated with or without cause under this
Article.
----------------------------------------------------------------------
Section XVI.2Effect of Termination. Termination is the permanent
withdrawal of Contractor’s authority to obligate previously awarded
funds before that authority would otherwise expire or the voluntary
relinquishment by Contractor of the authority to obligate previously
awarded funds. Contractor’s costs resulting from obligations incurred
by Contractor after termination of an award are not allowable unless
expressly authorized by the notice of termination. Upon termination of
this Contract or Program Attachment, as applicable, Contractor shall
cooperate with DSHS to the fullest extent possible to ensure the
orderly and safe transfer of responsibilities under this Contract or
Program Attachment, as applicable, to DSHS or another entity
designated by DSHS. Upon termination of all or part of this Contract,
Department and Contractor will be discharged from any further
obligation created under the applicable terms of this Contract or the
Program Attachment, as applicable, except for the equitable settlement
of the respective accrued interests or obligations incurred prior to
termination and for Contractor’s duty to cooperate with DSHS, and
except as provided in the Survivability of Terms section of the
General Terms Article. Termination does not, however, constitute a
waiver of any remedies for breach of this Contract. In addition,
Contractor’s obligations to retain records and maintain
confidentiality of information will survive this Contract.
----------------------------------------------------------------------
Section XVI.3Acts Not Constituting Termination. Termination does not
include the Department’s (1) withdrawal of funds awarded on the basis
of Contractor’s underestimate of the unobligated balance in a prior
period; (2) withdrawal of the unobligated balance at the expiration of
the term of a program attachment; (3) refusal to extend a program
attachment or award additional funds to make a competing or
noncompeting continuation, renewal, extension, or supplemental award;
(4) non-renewal of a contract or program attachment at Department’s
sole discretion; or (5) voiding of a contract upon determination that
the award was obtained fraudulently, or was otherwise illegal or
invalid from inception.
----------------------------------------------------------------------
Section XVI.4Termination or Temporary Suspension Without Cause.
---------------------------------------------------------------
a.
Either Party may terminate this Contract or a Program Attachment,
as applicable, with at least thirty (30) calendar days prior
written notice to the other Party, except that if Contractor seeks
to terminate a Contract or Program Attachment that involves
residential client services, Contractor shall give the Department
at least ninety (90) calendar days prior written notice and shall
submit a transition plan to ensure client services are not
disrupted.
b.
The Parties may terminate this Contract or a Program Attachment by
mutual agreement.
c.
DSHS may temporarily suspend or terminate this Contract or a
Program Attachment if funds become unavailable through lack of
appropriations, budget cuts, transfer of funds between programs or
health and human services agencies, amendments to the
Appropriations Act, health and human services consolidations, or
any disruption of current appropriated funding for this Contract
or Program Attachment. Contractor will be notified in writing of
any termination or temporary suspension or of any cessation of
temporary suspension. Upon notification of temporary suspension,
Contractor shall discontinue performance under the Contract as of
the effective date of the suspension, for the duration of the
suspension.
d.
Department may terminate this Contract or a Program Attachment
immediately when, in the sole determination of Department,
termination is in the best interest of the State of Texas.
Section XVI.5Termination For Cause. Either Party may terminate for
material breach of this Contract with at least thirty (30) calendar
days written notice to the other Party. Department may terminate this
Contract, in whole or in part, for breach of contract or for any other
conduct that jeopardizes the Contract objectives, by giving at least
thirty (30) calendar days written notice to Contractor. Such conduct
may include one or more of the following:
----------------------------------------------------------------------
a.
Contractor has failed to adhere to any laws, ordinances, rules,
regulations or orders of any public authority having jurisdiction;
b.
Contractor fails to communicate with Department or fails to allow
its employees or those of its subcontractor to communicate with
Department as necessary for the performance or oversight of this
Contract;
c.
Contractor breaches a standard of confidentiality with respect to
the services provided under this Contract;
d.
Department determines that Contractor is without sufficient
personnel or resources to perform under this Contract or that
Contractor is otherwise unable or unwilling to fulfill any of its
requirements under this Contract or exercise adequate control over
expenditures or assets;
e.
Department determines that Contractor, its agent or another
representative offered or gave a gratuity (e.g., entertainment or
gift) to an official or employee of DSHS or HHSC for the purpose
of obtaining a contract or favorable treatment;
f.
Department determines that this Contract includes financial
participation by a person who received compensation from DSHS to
participate in developing, drafting or preparing the
specifications, requirements or statement(s) of work or
Solicitation Document on which this Contract is based in violation
of Tex. Gov. Code § 2155.004; or Department determines that
Contractor was ineligible to receive this Contract under Tex. Gov.
Code §§ 2155.006 or 2261.053 related to certain disaster response
contracts;
g.
Contractor appears to be financially unstable. Indicators of
financial instability may include one or more of the following:
1.
Contractor fails to make payments for debts;
2.
Contractor makes an assignment for the benefit of its creditors;
3.
Contractor admits in writing its inability to pay its debts
generally as they become due;
4.
if judgment for the payment of money in excess of $50,000 (that is
not covered by insurance) is rendered by any court or governmental
body against Contractor, and Contractor does not (a) discharge the
judgment, or (b) provide for its discharge in accordance with its
terms, or (c) procure a stay of execution within thirty (30)
calendar days from the date of entry of the judgment, or (d) if
the execution is stayed, within the thirty (30)-day period or a
longer period during which execution of the judgment has been
stayed, appeal from the judgment and cause the execution to be
stayed during such appeal while providing such reserves for the
judgment as may be required under Generally Accepted Accounting
Principles;
5.
a writ or warrant of attachment or any similar process is issued
by any court against all or any material portion of the property
of Contractor, and such writ or warrant of attachment or any
similar process is not released or bonded within thirty (30)
calendar days after its issuance;
6.
Contractor is adjudicated bankrupt or insolvent;
7.
Contractor files a case under the Federal Bankruptcy Code or seeks
relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution,
receivership or liquidation law of any jurisdiction then in
effect, or consents to the filing of any case or petition against
it under any such law;
8.
any property or portion of the property of Contractor is
sequestered by court order and the order remains in effect for
more than thirty (30) calendar days after Contractor obtains
knowledge of the sequestration;
9.
a petition is filed against Contractor under any state
reorganization, arrangement, insolvency, readjustment of debt,
dissolution, receivership or liquidation law of any jurisdiction
then in effect, and the petition is not dismissed within thirty
(30) calendar days; or
10.
Contractor consents to the appointment of a receiver, trustee, or
liquidator of Contractor or of all or any part of its property;
h.
Contractor’s management system does not meet the UGMS management
standards; or
i.
Any required license, certification, permit, registration or
approval required to conduct Contractor’s business or to perform
services under this Contract is not obtained or is revoked, is
surrendered, expires, is not renewed, is inactivated or is
suspended.
Section XVI.6Notice of Termination. Either Party may deliver written
notice of intent to terminate by any verifiable method. If either
Party gives notice of its intent to terminate all or a part of this
Contract, Department and Contractor shall attempt to resolve any
issues related to the anticipated termination in good faith during the
notice period.
----------------------------------------------------------------------
ARTICLE XVIIVOID, SUSPENDED, AND TERMINATED CONTRACTS
=====================================================
Section XVII.1Void Contracts. Department may void this Contract upon
determination that the award was obtained fraudulently or was
otherwise illegal or invalid from its inception.
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Section XVII.2Effect of Void, Suspended, or Involuntarily Terminated
Contract. A Contractor who has been a party to a contract with DSHS
that has been found to be void, or is suspended, or is terminated for
cause is not eligible for expansion of current contracts, if any, or
new contracts or renewals until, in the case of suspension or
termination, the Department has determined that Contractor has
satisfactorily resolved the issues underlying the suspension or
termination. Additionally, if this Contract is found to be void, any
amount paid is subject to repayment.
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Section XVII.3Appeals Rights. Pursuant to Tex. Gov. Code § 2105.302,
after receiving notice from the Department of termination of a
contract with DSHS funded by block grant funds, Contractor may request
an administrative hearing under Tex. Gov. Code Chapter 2001.
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ARTICLE XVIIICLOSEOUT
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Section XVIII.1Cessation of Services At Closeout. Upon expiration of
this Contract or Program Attachment, as applicable, (and any renewals
of this Contract or Program Attachment) on its own terms, Contractor
shall cease services under this Contract or Program Attachment; and
shall cooperate with DSHS to the fullest extent possible upon
expiration or prior to expiration, as necessary, to ensure the orderly
and safe transfer of responsibilities under this Contract to DSHS or
another entity designated by DSHS. Upon receiving notice of Contract
or Program Attachment termination or non-renewal, Contractor shall
immediately begin to effect an orderly and safe transition of
recipients of services to alternative service providers, as needed.
Contractor also shall completely cease providing services under this
Contract or Program Attachment by the date specified in the
termination or non-renewal notice. Contractor shall not bill DSHS for
services performed after termination or expiration of this Contract or
Program Attachment, or incur any additional expenses once this
Contract or Program Attachment is terminated or has expired. Upon
termination, expiration (with no renewal) or non-renewal of this
Contract or a Program Attachment, Contractor shall immediately
initiate Closeout activities described in this Article.
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Section XVIII.2Administrative Offset. The Department has the right to
administratively offset amounts owed by Contractor against billings.
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Section XVIII.3Deadline for Closeout. Contractor shall submit all
financial, performance, and other Closeout reports required under this
Contract within sixty (60) calendar days after the Contract or Program
Attachment end date. Unless otherwise provided under the Final Billing
Submission section of the Payment Methods and Restrictions Article,
the Department is not liable for any claims that are not received
within sixty (60) calendar days after the Contract or Program
Attachment end date.
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Section XVIII.4Payment of Refunds. Any funds paid to Contractor in
excess of the amount to which Contractor is finally determined to be
entitled under the terms of this Contract constitute a debt to the
Department and will result in a refund due, which Contractor shall pay
within the time period established by the Department.
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Section XVIII.5Disallowances and Adjustments. The Closeout of this
Contract or Program Attachment does not affect the Department’s right
to disallow costs and recover funds on the basis of a later audit or
other review or Contractor’s obligation to return any funds due as a
result of later refunds, corrections, or other transactions.
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General Provisions (Core Subrecipient) 2013 40