REQUEST FOR PROPOSALS...Submitting proposals prior to the pre-proposal conference is not...

RFP #16-03-23 Grocery Products and Related Items

REQUEST FOR PROPOSALS

RFP # 16-03-23

Grocery Products and Related Items

The Houston Independent School District (“HISD” and/or the “District”) is soliciting proposals for various grocery products and related items as more fully set out in the Scope of Work and Specific Conditions and Specifications sections of this Request for Proposals (“RFP”). An original and at least four (4) true copies of the proposal must be submitted in accordance with the instructions set out herein to: Houston Independent School District Board Services - Room 1C03 Attn: Cristina Giacaman RFP/ Grocery Products and Related Items

4400 West 18th Street Houston, TX 77092

Proposals will be received at the above address until 2 p.m. on Tuesday, November 29, 2016. A combined pre-proposal conference and tour of the H.I.S.D. Nutrition Services production facility will be held in conjunction with the RFP at 9 a.m. on Tuesday, October 25, 2016. Proposers may attend the conference at: Houston I.S.D. Nutrition Services Support Facility 6801 Bennington Street Houston, TX 77028. Submitting proposals prior to the pre-proposal conference is not recommended, and such proposals may be rejected by HISD. A more detailed timeline is set out in the Instructions for Proposer section of the RFP. The District anticipates that it will award this RFP to multi-suppliers based upon the evaluation of all proposals received. More details regarding evaluation of proposals are included in Section 4.0, Evaluation and Award; Section 6.0, Scope of Work; and Section 7.0, Specific Conditions.

Rick Gay Rick Gay, CPPO Chief Procurement Officer, Procurement Services


TABLE OF CONTENTS

1.0 Notice of Intent

2.0 Proposal Process 3.0 Proposal Instructions and Requirements 4.0 Evaluation and Award 5.0 General Terms and Conditions 6.0 Specific Terms and Conditions 7.0 Scope of Work and Specifications 8.0 Pricing and Delivery Information 9.0 Attachments


1.0 NOTICE OF INTENT It is the intent of the Houston Independent School District (HISD or the District) to award one or more contract(s) as a result of this Request for Proposals (RFP). Products and/or services considered for award shall equal or exceed a minimum quality level of industry standards as defined within this RFP, including Section 7.0 Scope of Work and Specifications, and shall comply with all applicable federal, state, and local technical, environmental, and performance standards and specifications. 1.1 TERM: The initial base term of the prospective contract is a period of one calendar year, and HISD may elect to extend

any contract awarded pursuant to this RFP for up to three (3) additional one-year renewal terms.

1.2 DEFINITIONS: In this RFP and in the Contract, the following terms are defined as follows:

1.2.1 “Best Value” means the method by which a contract, if any, is awarded, in accordance with applicable laws, rules, and regulations. Best Value includes multiple parameters, including experience, references, quality of Vendor’s product(s) and/or services, and price, as Detailed in Section 4.0, Evaluation and Award.

1.2.2 “Contract” means an agreement entered into between the District and a vendor as a result of this RFP. The Contract consists of the Request for Proposals, including all Addenda, Vendor’s Proposal that is satisfactory to the District, and the District’s Contract form(s), which may include, but are not limited to, a written contract, an agreement letter, or a purchase order.

1.2.3 “HISD, the District, and/or government entity” refers to Houston Independent School District.

1.2.4 “Proposer” refers to the person/firm that submits the proposal to this RFP.

1.2.5 “Project” means the Scope of Work for furnishing goods and services as outlined in this RFP.

1.2.6 “Proposal” refers to the documents submitted by a Proposer that addresses the scope and requirements of

this RFP.

1.2.7 “RFP” refers to this Request for Proposals.

1.2.8 “Responsible Vendor” means a vendor with adequate financial resources (or the ability to obtain such resources), who can comply with the delivery requirements, and who is a qualified and established firm regularly engaged in the type of business that provides the goods and/or services herein.

1.2.9 “Responsive Proposal” refers only to those proposals that comply with all material and administrative aspects

of this RFP.

1.2.10 “Scope of Work” is set forth in Section 7.0, Scope of Work and Specifications.

1.2.11 “Vendor” refers to the person(s)/entity(ies) to whom a contract is awarded pursuant to this RFP.

1.2.12 Singular terms shall include the plural and vice versa. A gender reference includes both genders.


2.0 PROPOSAL PROCESS 2.1 GENERAL INFORMATION: The following instructions by the District are intended to afford vendors with an equal

opportunity to participate in the proposal process and to provide a predetermined set of criteria representing the District’s business and service requirements. This proposal is governed by the Texas Education Code (TEC), other applicable Texas state statutes, and all local HISD Board of Education (Board) policies.

2.2 DESIGNATED PROJECT MANAGER: The designated project manager during the proposal process shall be Cristina

Giacaman (“Project Manager”), Procurement Services, 4400 West 18th Street, Houston, Texas 77092, [email protected]. All communications pertaining to the RFP shall be addressed in writing to the Project Manager, as indicated in the next paragraph.

2.3 QUESTIONS CONCERNING THE RFP: Questions concerning the RFP will be answered only if sent to the Procurement Services Department, in writing via email to [email protected] on or before 1 p.m. on Friday, November 18, 2016. All questions submitted in writing to the Project Manager prior to the deadline will be answered in the form of addenda and posted on the HISD Procurement website. Responses to written questions submitted prior to the pre-proposal conference will be read at the pre-proposal conference and included in the first addendum along with additional information such as questions and responses from the pre-proposal conference.

2.4 DEADLINES AND TIMETABLE: HISD may strictly enforce timelines and/or deadlines set forth herein. HISD, however,

maintains sole discretion to adjust any deadline or timeline to suit its best interests. HISD desires to complete the proposal process in accordance with the following timeline, which is subject to change at the District’s discretion:

Timeline Release RFP Wednesday, October 12, 2016

Pre-Proposal Conference 10 a.m. on Tuesday, October 25, 2016 at Houston I.S.D. Nutrition Services Support Facility 6801 Bennington Street Houston, TX 77028

Last date for questions 1 p.m. on Friday, November 18, 2016 RFP Due 2 p.m. on Tuesday, November 29, 2016 Evaluation Period December 2016 – April 2017 (subject to change) Selected Proposal(s) Approved Next regularly scheduled Board meeting after evaluation and selection

Projection: Thursday, May 11, 2017

2.5 PRE-PROPOSAL CONFERENCE: Proposer is strongly encouraged to attend the pre-proposal conference. A Procurement Department member will moderate the conference, which will begin promptly at the stated time. Proposers must submit RSVP a minimum of 3 business days in advance of meeting to: Cristina Giacaman at [email protected]. General rules of business meeting protocol will be observed during the meeting. Admittance for individuals arriving late is at the discretion of the moderator. In the event that an individual is admitted late, questions already discussed will not be revisited during the remaining portion of the conference.

Individuals attending the pre-proposal conference will be required to sign an attendance roster. In addition to their name and company name, each person will be asked to supply an email address, telephone number and a fax number for facsimile transmissions, if needed. This attendance roster will be posted as an addendum on the District’s website along with the RFP and other related documents.

2.6 PROPOSAL SUBMISSION: HISD will not accept a faxed Proposal. One original and at least four (4) true copies of the Proposal must be submitted in accordance with the instructions set out herein to:

Houston Independent School District Board Services – Room 1C03 Attn: CRISTINA GIACAMAN RFP/ 16-03-23 GROCERY PRODUCTS AND RELATED ITEMS 4400 West 18th Street Houston, Texas 77092


2.7 DISCUSSIONS / NEGOTIATIONS: HISD may conduct discussions/negotiations with Proposer(s); however, HISD reserves the right to award a contract without discussions/negotiations. HISD will determine the competitive range, if any, which may include only those initial Proposals that HISD determines have a reasonable chance of being awarded a contract. If HISD conducts discussions/negotiations, Proposer may be required to submit a best and final offer as early as 24 hours after completion of negotiations/discussions. If HISD does not receive your best and final offer by the time set by HISD during discussions/negotiations, HISD will use your originally submitted Proposal for further evaluation and award recommendation.

2.8 INTERVIEWS: At the District’s discretion, HISD may invite one or more Proposers to interview based on a pre-defined

agenda and timeline. Said Proposer(s) will be notified by e-mail if the District determines that such demonstrations and interviews are needed. Proposer(s) shall demonstrate their competence, qualifications and/or ability to satisfy the District’s RFP requirements.

2.9 MODIFICATION OR WITHDRAWAL OF PROPOSALS: Proposals may be modified or withdrawn by written or electronic

notice received by the Project Manager prior to the exact hour and date specified as the deadline for receipt of proposals. A Proposal may also be withdrawn in person by a Proposer’s authorized representative prior to the proposal due date and time, provided Proposer’s identity is confirmed and Proposer’s representative signs a receipt for the Proposal.

2.10 LATE PROPOSALS: Responses submitted after the due date and time noted in this RFP shall not be considered and shall

be returned to the Proposer, unopened, by United States Mail. HISD is not responsible for lateness of U.S. Mail, Commercial (Professional) Carrier, personal delivery, or any other delivery method. The time and date stamp clock in the Houston ISD’s Board Services Department, Hattie Mae White Educational Support Center, 4400 West 18th Street, Houston, Texas 77092, shall be the official date and time of receipt. It shall be Proposer’s sole responsibility to ensure that the Proposal is received at the appropriate location by the specified deadline. There shall be no exceptions to these requirements.

2.11 OPENING PROPOSALS: Proposals may be opened as soon as received in a manner that avoids disclosure to competing

Proposals. A formal public "opening" will not be held. Trade secrets and confidential information contained in Proposals shall not generally be open for public inspection, but HISD’s records are subject to the State of Texas Public Information Act requirements. All Proposals must remain open for one hundred and eighty (180) days from the due date and time pending acceptance by HISD.

2.12 RESPONSIVE PROPOSAL: To be deemed responsive and qualify for evaluation, a Proposal must be timely submitted

and must materially satisfy all mandatory requirements identified in this RFP. 2.13 RETENTION OF PROPOSAL DOCUMENTATION: All Proposal materials and supporting documentation submitted in

response to this RFP becomes the permanent property of HISD and will not be returned to Proposer. 2.14 FINANCIAL RESPONSIBILITY: Proposer shall pay all costs related to the preparation and submission of its Proposal. 2.15 RESERVATION OF RIGHTS: HISD reserves the right to:

2.15.1 Cancel this RFP in whole or in part, at the sole discretion of HISD. 2.15.2 Accept, reject, or negotiate modifications in any terms of Proposal or any parts thereof. 2.15.3 Reject and/or disqualify any or all Proposals received, award contracts for individual products or services as may

appear advantageous, and negotiate separately in any manner necessary to serve HISD’s best interests. 2.15.4 Waive any formalities, technicalities, or other defects if deemed in the best interest of HISD; request clarification

and/or correction for the purpose of eliminating minor errors, clerical errors, and/or non-substantive irregularities. 2.15.5 Be the sole judge of quality, make all decisions regarding this RFP, including, without limitation, the right to

decide whether a Proposal substantially complies with the requirements of this RFP. 2.15.6 Change delivery locations during the RFP/Contract period. HISD may add and/or delete locations as necessary

without change to the pricing of goods and/or services for the length of the RFP/Contract period.


3.0 PROPOSAL INSTRUCTIONS AND REQUIREMENTS 3.1 COMPLIANCE REQUIRED: You must follow the instructions detailed below when preparing and submitting your Proposal.

HISD, in its sole discretion, may reject your Proposal as non-responsive if you fail to follow these instructions and requirements.

3.2 REQUIRED ORGANIZATION: To achieve a uniform review process and obtain the maximum degree of comparability, a

Proposal must be organized in the manner specified and shall be submitted in a binder with tabs as set forth below:

TITLE PAGE: Include RFP number and name, Vendor’s name, address, telephone number, name of contact person, and date.

TAB 1 – TABLE OF CONTENTS: Clearly identify the materials by tabs and page numbers.

TAB 2 –FORMS: Complete and return Forms A–K set forth in Section 9.0 of this RFP in the following order:

o FORM A: Execution of Offer o FORM B: Vendor Questionnaire o FORM C: Performance Evaluation Survey Instructions (submit with completed contact information) o FORM D: Performance Evaluation Surveys. You will not submit a fully completed Form D with your Proposal,

but you must fill in the top of Form D, under “Vendor Name.” You are responsible for ensuring that your references return the Form D Performance Evaluation Surveys directly to HISD.

o FORM E: General Certifications o FORM F: EDGAR Certifications o FORM G: Exceptions (see Section 5.3) o FORM H: Conflict of Interest Certification and CIQ Instructions o FORM I: Conflict of Interest Questionnaire (CIQ) o FORM J: IRS Form W-9 o FORM K: MWBE FORMS

TAB 3 – PROFILE OF PROPOSER:

o Indicate the number of people in your organization, their level of experience and qualifications, and the percentage of their time that will be dedicated to this project.

o List Proposer’s top ten clients (current or former clients from the past two years) indicating the type of goods and/or services provided and/or performed for each client.

TAB 4 – SCOPE SECTION: Clearly describe the scope of the goods and/or services to be provided based upon the

information stated in Section 7.0, Scope of Work and Specification. Respond to each item listed, as appropriate.

TAB 5 – INVOICE AND DELIVERY PROCEDURES: Describe Vendor’s invoicing and delivery procedures. Include:

o Documentation identifying all of Proposer’s fees. (See Section 8.2, Costs) o Payment Terms and Discounts. State any payment discounts your company offers for payments made

prior to the net 30 day standard payment term, i.e., 2% 10 days – net 30; or 5% 7 days – net 30. (See Section 5.9, Payment Terms and Section 5.10, Payment Discounts)

o Delivery information requested under Section 8.6, Delivery Terms.

TAB 6 – PRICE: In accordance with Section 8.0, provide any and all pricing information including, but not limited to the following. HISD HIGHLY encourages Proposer to submit catalogs. Pricing must be submitted in Excel format on the spreadsheet provided with the original RFP documents.

o Catalog/price lists (See Section 8.3) o Discounts provided on price lists and catalogs (See Section 8.4) o Any alternate pricing proposals that may be acceptable for project (See Section 8.4)

TAB 7 - ADDENDA: Insert all addenda under this section.

TAB 8 – INSURANCE INFORMATION: Provide all Certificates of Acord (See Section 5.27).


3.3 FORMAT: The District strongly recommends typed responses. Proposals must be printed on ONE side of the paper only. Proposals must be submitted with each copy in its own binder. The original Proposal must be labeled “ORIGINAL,” and the four (4) true copies must be labeled “COPY.” THE “ORIGINAL” MUST CONTAIN MANUAL SIGNATURES. Label the outside of each binder and any container for the binders with Proposer’s name, address, RFP number, and RFP name. 3.3.1 Proposer must submit pricing information in both printed and electronic forms. Electronic forms of ALL documents

must be submitted on an USB memory stick included with original submission. 3.3.2 Proposers are required to submit two (2) USB memory sticks with their proposals. One stick must contain pricing

information submitted using the proposal tabulation as provided in the original RFP documents and must not be saved in PDF format. Electronic forms of ALL documents must be submitted on an USB memory stick included with original submission.

3.4 OFFICERS ELIGIBLE TO SIGN: Listed below are the officers eligible to sign bid pages requiring an officer’s signature:

1. Chairperson 2. President or CEO 3. Vice-President 4. Assistant Vice-President 5. Corporate Secretary

6. Assistant Corporate Secretary 7. Treasurer or CFO 8. Assistant Treasurer 9. General Counsel 10. Assistant General Counsel

HISD will not accept a Proposal if a document requiring an officer’s signature is not signed by one of the above individuals.


REVISED October 2016 Houston Independent School District Page 8 of 21

4.0 EVALUATION AND AWARD 4.1 EVALUATION FACTORS: The HISD Evaluation Committee will conduct a comprehensive, fair and impartial evaluation of

all Proposals and will analyze each Proposal to determine overall responsiveness and completeness as defined in Section 7.0, Scope of Work and Specifications. The Evaluation Committee, in its sole discretion, may deem a Proposal non-responsive if Proposer fails to comply with the instructions in this RFP or submits an incomplete Proposal. The Evaluation Committee may, in its sole discretion, eliminate non-responsive proposals from further evaluation.

Criteria

# Criteria Description Weighted

Value 1 the purchase price 30% 2 the reputation of the Proposer and of the Proposer’s goods or services

a) Reference checks

5% 3 the quality of the Proposer’s goods or services, as applicable

a) Product test evaluation b) Product, pack size meets specifications c) Delivery Specifications (Lead Time)

30%

4 the extent to which the goods or services meet the District's needs a) Nutritionals

10%

5 the Proposer’s past relationship with the District a) On-time deliveries b) Complied with terms of the Project c) Ability to provide service requirements (invoicing, delivery appointments, deliver complete orders)

5%

6 the impact on the ability of the District to comply with laws and rules relating to historically underutilized businesses - M/WBE analysis

10%

7 the total long-term cost to the District to acquire the Proposer’s goods or services 5% 8 for a contract for goods and services, other than goods and services related to telecommunications and

information services, building construction and maintenance, or instructional materials, whether the vendor or the vendor's ultimate parent company or majority owner: (A) has its principal place of business in this state; or (B) employs at least 500 persons in this state

0% 9 List and weigh any other relevant factors

a) Samples and paperwork submitted as requested and complete b) Product codes match samples, paperwork, and/or proposal c) Compliance with Buy American standards

5%

4.2 PREFERENCES: HISD may apply applicable preferences for Texas resident Vendors in the event of a tie bid. Vendor must

explicitly claim preferences. See Tex. Gov’t Code § 2252.001-.004. HISD may not apply geographic preferences in procurements and/or contracts involving federal funds unless the procurement and/or contract involves unprocessed locally grown or locally raised agricultural products for use by HISD in a Child Nutrition Program. See 2 C.F.R. § 200.319.

4.3 CONFLICT OF INTEREST: No employee, officer, or agent may participate in the selection, award, or administration of a Contract if he or she has a real or apparent conflict of interest. See 2 C.F.R. § 200.318(c)(1). HISD officers, employees, and agents may not solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. HISD maintains written standards covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts. For more information regarding conflicts of interest, see Form H attached hereto and incorporated by reference.

4.4 SIMILAR PRODUCTS: Whenever HISD refers to a product by describing a proprietary product or by using the name of a

manufacturer or brand name, the term “or equal” if not inserted shall be implied, as applicable. The specified product shall be understood as indicating type, function, minimum standard of design, efficiency and quality desired and shall not be construed as to exclude other manufactured products or comparable quality, design and efficiency, as applicable.

4.5 NON-EXCLUSIVITY AND MULTIPLE AWARDS: Any Contract resulting from this RFP is non-exclusive. HISD reserves the

right to make no awards or award one or more Contracts, in part or in whole, to a single Vendor or to multiple Vendors. 4.6 DISQUALIFICATION: Proposer may be disqualified before or after HISD opens proposals upon evidence of collusion with

the intent to defraud, upon evidence of intent to perform other illegal activities for the purpose of obtaining an unfair competitive advantage, upon evidence of debarment and suspension, or upon indebtedness to the District. Non-Responsive Proposals and deviations/exceptions stipulated in Vendor’s response may also result in disqualification.



4.7 MINORITY AND WOMEN’S BUSINESS ENTERPRISE (MWBE): In an effort to encourage minority and women owned businesses to participate in HISD business and submit proposals based upon their capacity to perform and be successful, this project may be awarded to more than one Proposer if it is in the best interest of the District to do so. Interested Proposers should obtain additional information concerning the District’s location of schools and offices and consider submitting their Proposal for any one or more schools and/or departments, or the entire District.

4.8 ENVIRONMENTAL INITIATIVES: HISD is committed to reducing waste and promoting energy conservation. Toward that

end, Proposers are encouraged to provide their company’s environmental policy and green initiative. 4.9 FINANCIAL INFORMATION: Proposer may be required to submit a current audited financial statement. The Project

Manager will determine the necessity of financial information. In the event Proposer does not have an audited statement, other information such as an unaudited statement or copies of Proposer’s federal income tax returns, with all amendments, may be required.

4.10 AWARD OF CONTRACT: In accordance with applicable laws, rules, and regulations for public procurement, any award(s)

will be made to the Responsible Vendor(s) whose Proposal(s) is/are determined to be the Best Value to HISD. HISD is divided into multiple zones. HISD reserves the right to make an award by zone to multiple Vendors or all zones to a single Vendor, whichever brings the “Best Value” to the District.

4.11 FORMATION OF CONTRACT (EXECUTION OF OFFER): A signed and submitted Proposal constitutes an offer to Contract

with HISD to provide the goods and/or perform the services specified in this RFP. An RFP does not become a contract unless and until it is accepted by HISD after approval by the HISD Board of Trustees. Vendor must submit a signed Execution of Offer, thus eliminating the need for the formal signing of a separate contract. No Vendor shall obtain any interests or rights in any award until the District signs the Execution of Offer.

4.11.1 HISD does not sign Vendor contract forms. In the event that HISD awards a project to Vendor and Vendor request

changes to the District’s standard Contract form, the District reserves the right to cancel the award and re-award the project to an alternate Proposer.

4.11.2 In the event of a license agreement or other contract document requested by Vendor for execution, HISD reserves the right to review and to amend such document in HISD’s discretion.



5.0 GENERAL TERMS AND CONDITIONS The words “bids,” “request for proposals,” “quotes,” “RFPs,” “solicitation,” “procurement,” and their derivatives may be used interchangeably in these terms and conditions. These terms and conditions apply to all bids, requests for proposals, quotes, competitive sealed proposals, and other procurement solicitations to which they are attached.

These General Terms and Conditions are part of the final Contract in each commodity and/or service contract and are part of the terms and conditions of each purchase order or other bid/proposal forms issued in connection with this solicitation. This Contract is entered into between HISD and Vendor, having submitted a Proposal in response to this RFP issued by HISD and whose proposal has been accepted and awarded by HISD. In consideration of the mutual covenants and conditions contained in this Contract and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, HISD and Vendor, intending to be legally bound, and subject to the terms, conditions and provisions of this Contract, agree as follows: 5.1 DEFINITIONS: The terms used in this Contract shall have the meanings assigned to them in Section 1.0 Notice of Intent

of the RFP.

5.2 CONTROLLING DOCUMENTS AND INTEGRATION: The Contract consists of the RFP, including all Addenda, the Proposal submitted by Vendor that is satisfactory to the District, and the District’s Contract form(s), which may include, but are not limited to, a written contract, an agreement letter, or a purchase order. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY VENDOR FORM, PROPOSAL, OR DOCUMENTATION, THE TERMS AND CONDITIONS OF THE CONTRACT AS INTEGRATED ABOVE SHALL BE CONTROLLING IN ALL INSTANCES.

5.2.1 To the extent that there is any conflict between or among the documents composing the Contract, the following

hierarchy (from most to least authoritative) shall prevail: (i) the District’s Contract forms (written contract, agreement letter, or purchase order as applicable); (ii) RFP as provided by the District and all Addenda; and (iii) any Proposal provisions submitted by Vendor and agreed to by the District.

5.3 COMPLIANCE WITH CONTRACT/SPECIFICATIONS AND EXCEPTIONS: Proposers must respond to all requests

identified in this RFP and indicate their acceptance or objection to the terms of the RFP and this Contract. Any exceptions to the terms and conditions in this RFP or Contract must be clearly indicated in in the Exception Form (Form G hereto) and included in the Proposal. Deviations or exceptions stipulated in Proposer’s response may result in disqualification.

5.4 TERM OF CONTRACT; RENEWAL OF CONTRACT: Unless otherwise provided or required by HISD, a Contract which results from this RFP shall be for a period of one (1) year from the effective date of the Contract with an exclusive option by HISD to renew on an annual basis thereafter for three (3) additional one-year terms, or as otherwise stated in the Contract. Alternately, HISD may approve longer or shorter terms upon the mutual consent of the parties. At HISD’s option, there may be an additional 90-day transitional period added to the end of the initial term or any renewal term. Contract prices, terms and conditions are to remain in force during the transitional period. Should the Contract with Vendor terminate during the initial or any renewal term for any reason, HISD reserves the right to have the same transitional period, prices, terms and conditions as if the Contract terminated at the expiration of that term.

5.5 TERMINATION OF CONTRACT: HISD reserves the right to terminate, without cause and for any reason, a Contract

resulting from this RFP upon thirty (30) calendar days prior written notice, or five (5) days prior written notice for cause. HISD also has the right to terminate the Contract for convenience, without penalty, for non-appropriation or non-availability of funds by delivery to the Vendor of a "Notice of Termination" specifying the extent to which performance hereunder is terminated and the date upon which such termination becomes effective.

5.6 DELIVERIES/PURCHASE ORDERS: All deliveries shall be Freight Prepaid, F.O.B. Destination, Full Freight Allowed,

and Inside Delivery and in accordance with the Specific Terms and Conditions found in Section 6.3. After a Contract has been awarded, Vendor shall deliver the products and/or provide the services procured in this Contract to HISD upon HISD’s issuance of a Purchase Order. The conforming product(s) and/or services shall be delivered/provided in accordance with the delivery terms as stated in the Purchase Order. If delivery is not or cannot be made or if services are not or cannot be provided within this time period, Vendor must receive authorization from HISD for the delayed delivery or delayed provision of services.

5.7 EMERGENCY DELIVERY: HISD may request emergency delivery when issuing the Purchase Order. Vendor must use its best efforts to comply with the rush or emergency delivery requested. HISD may procure its needs from alternative sources without penalty if Vendor is unable to fulfill the emergency delivery request.



5.8 DEFECTIVE/NON-CONFORMING WORK: If Vendor delivers defective or incorrect products, HISD may make the determination, at its sole discretion, to return the products to Vendor at no cost to HISD. Vendor agrees to pay all shipping and handling costs for any such return shipment. Vendor also shall be responsible for arranging the return of the defective or incorrect products. 5.8.1 If, following seven (7) calendar days of a written notice to Vendor identifying defective or nonconforming work,

Vendor or its subcontractors fail to correct such defective or nonconforming work, HISD may order Vendor to stop further work, or any portion thereof, until it properly corrects the defect or nonconformance.

5.8.2 Should Vendor not proceed with the correction of defective or non-conforming work within three (3) additional calendar days of HISD’s order to stop further work, as set forth above, HISD may cause the removal, repair or correction of the defective or nonconforming work and may charge all associated costs of the same to Vendor.

5.9 PAYMENT TERMS: Payments are due to Vendor within thirty (30) days after the later of: (1) the date HISD receives

product(s) under the Contract; (2) the date the performance of the service under the Contract is completed; or (3) the date Vendor receives an invoice for product(s) or service(s). Vendor agrees to pay any subcontractors the appropriate share of the payment received from HISD not later than the tenth (10th) day after the date Vendor receives the payment from HISD. The exceptions to payments made by HISD listed in Tex. Gov’t Code Section 2251.002 shall apply to this Contract.

5.10 PAYMENT DISCOUNTS: Vendor may offer HISD a cash discount for payment of an invoice with stated discount term. Invoices will be date and time stamped upon receipt in the Accounts Payable Department, and the cash discount, when applicable, will be calculated from the “receipt date” stamped on the invoice.

5.11 INVOICES: Invoices should be provided to the District in a timely manner. Vendor is requested to invoice the District

within 30 days of providing goods and/or services to the District. Vendor’s invoices must contain the appropriate HISD purchase order number on the face of the invoice. Each line item on the invoice should contain the corresponding line item number shown on the purchase order. Invoices submitted without the correct purchase order number shown may be returned to the Vendor for correction. Corrected invoices will be subject to the same payment provisions as original invoices. A delay of payment may result if Vendor presents the District with invoices, statements, reports, etc. that are incomplete, inaccurate or in need of substantial internal research. The District will not be responsible for any interest charges and/or late fees as a result of delayed payment due to time delays caused by inadequate or incomplete information provided in invoices by Vendor.

5.11.1 Invoices are to be mailed for payment of delivery to:

Controller’s Office Nutrition Services Accounting Level 3 North East 4400 W. 18th Houston, TX 77092

5.12 ESTIMATED QUANTITIES: There is no guaranteed amount of business, express or implied, to be purchased or contracted

for by HISD. However, Vendors are expected to carry sufficient inventories to service the needs of HISD and shall furnish all required goods and/or services to the District at the stated price, when and if required. The district makes every effort to be as accurate as possible when providing estimated quantities; however, quantities are subject to change for various reasons, which include, but are not limited to the following: USDA commodity allocation(s), variations in student population, HISD production item substitution(s), changes in consumer taste or expectations, pricing, and nutrition regulatory changes.

5.13 CHANGE ORDERS/AMENDMENTS: HISD reserves the right to make changes to a Purchase Order (e.g.,

increase/decrease quantities, change delivery date, delivery address). Once the performance of the Contract has begun, any change orders or requests will be made in accordance with Tex. Educ. Code Section 44.0411 and applicable HISD procedures and policies. Any changes to a purchase order shall be communicated to Vendor by the issuance of a formal change purchase order. Only an HISD procurement staff member may make a change to the purchase order by issuing and sending a formal change purchase order to Vendor. If Vendor acts on the direction of a District employee who is not authorized to make changes, Vendor does so at his or her own risk or peril and risks termination of the Contract for cause. Also, if Vendor attempts, or receives, a modification/amendment from a District employee that is not authorized to make changes, Vendor does this at his or her own risk or peril and risks termination of the Contract for cause. No amendment of this Contract shall be permitted unless and until first approved in writing by HISD, and no such amendment shall have any effect unless and until a written amendment to this Contract is executed by the HCDE Superintendent or designee after any necessary approvals have been obtained from the HISD Board of Education.

5.14 PRICING: All prices and discount percentages in Proposal shall be firm for the period of July 1, 2017 through June 30, 2018.



5.15 PRICING CHANGES: Pricing may be negotiated during any renewal period. Vendor agrees to promptly lower the proportionate price of any product purchased through this Contract following a reduction in the price Vendor pays its suppliers. Vendor shall provide a 30-day written notice of any necessary price changes due to a force majeure situation that may arise during the term of the Contract, and shall provide supporting manufacturer and/or distributor documentation to support such price adjustments. HISD reserves the sole right to accept or reject a request for a price change during the Contract term, and HISD must approve, in writing, all price changes for products and/or services provided under this Contract prior to such price changes taking effect.

5.15.1 Vendor shall provide the following documentation to support a request for a price change:

• Justification for change/increase • Terms and conditions • Market conditions • Impact on manufacturer/distributor, if any

5.16 MODIFICATIONS: The District reserves the right to require any modification to the Contract terms if the modification is in

the best interest of the District and do not substantially change the scope of the award.

5.17 PROCUREMENT E-COMMERCE SOLUTIONS: HISD uses SAP-SRM as its e-Procurement system for the purchase of goods. As an extension of SRM, HISD may implement “Punch-out” capability for selected awarded Vendors and will continue to improve the technology for HISD’s internal “hosted” catalogs. All orders would then be sent to the awarded Vendors electronically, thus significantly reducing the order processing lead-time. HISD reserves the right to select and determine the appropriate and most advantageous vendor(s) for the above electronic catalog solutions. HISD requests all Proposers consider the resources and skills necessary within their company to meet the electronic catalog requirements of HISD. These include, but are not limited to, ongoing catalog maintenance, customization of any current websites, and any new software needing to be purchased and implemented for successful catalog implementation and management. Additionally, HISD reserves the right to invoke corrective action, up to and including termination of the Contract, in the event that suppliers cause technical problems with the catalog system or use the system inappropriately by selling unauthorized items or making price changes without the prior approval of the HISD Procurement Services Department.

5.18 FORCE MAJEURE: Neither HISD nor Vendor shall be deemed to have breached any provision of this Agreement as a result

of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are reasonably beyond such party’s control.

HISD and Vendor are required to use due caution and preventive measures to protect against the effects of force majeure, and the burden of proving that a force majeure event has occurred shall rest on the party seeking relief under this provision. The party seeking relief due to force majeure is required to promptly notify the other party in writing, citing the details of the force majeure event and relief sought, and shall resume performance immediately after the obstacles to performance caused by a force majeure event have been removed, provided the Contract has not been terminated. Delay or failure of performance, by either party to this Contract, caused solely by a force majeure event, shall be excused for the period of delay caused solely by the force majeure event. HISD and Vendor shall not have any claim for damages against any other party resulting from delays caused solely by force majeure. Notwithstanding any other provision of this Contract, in the event the Vendor’s performance of its obligations under this Contract is delayed or stopped by a force majeure event, HISD shall have the option to terminate this Contract. This section shall not be interpreted as to limit or otherwise modify any of HISD’s contractual, legal, or equitable rights.

5.19 DEFAULT CONDITIONS: If Vendor: (i) breaches any provision of the Contract; (ii) becomes insolvent, enters voluntary or

involuntary bankruptcy, or receivership proceedings, or makes an assignment for the benefit of creditors; or (iii) is in violation of any state or federal law (collectively, “event(s) of default”), HISD will have the right (without limiting any other rights or remedies that it may have in the Contract or by law) to terminate the Contract with five (5) days prior written notice to Vendor. HISD will then be relieved of all obligations, except to pay the reasonable value of Vendor’s prior performance, satisfactory to HISD (at a cost not exceeding the Contract rate and subject to any claims, costs and expenses incurred by HISD as a result of Vendor default). In the event of default, HISD is expressly authorized to obtain the goods or services that would have been provided by Vendor under this Contract from an alternative source. Vendor will be liable to HISD for all costs exceeding the Contract price that HISD incurs in completing or procuring the services and goods as provided for in the Contract. HISD’s right to require strict performance of any obligation in the Contract will not be affected by any previous waiver, forbearance, or course of dealing.

5.20 WARRANTIES: VENDOR EXPRESSLY WARRANTS THAT ALL THE GOODS AND SERVICES COVERED BY THE

CONTRACT RESULTING FROM THIS RFP WILL BE IN EXACT ACCORDANCE WITH THE REQUIREMENTS OF THE



AWARD OF THE RFP AND RESULTING CONTRACT AND FREE FROM DEFECTS IN MATERIALS AND/OR WORKMANSHIP. VENDOR EXPRESSLY WARRANTS MERCHANTABILITY FOR ALL GOODS PROVIDED PURSUANT TO THE RESULTING CONTRACT. ALL WARRANTIES SHALL SURVIVE DELIVERY OF THE GOODS AND COMPLETION OF THE SERVICES, AND SHALL NOT BE DEEMED WAIVED EITHER BY REASON OF THE DISTRICT’S ACCEPTANCE OF SAID GOODS AND SERVICES OR BY PAYMENT FOR THEM. ANY DEVIATIONS FROM THE CONTRACT, OR DESCRIPTIONS OR SPECIFICATIONS FURNISHED THEREUNDER, INCLUDING U.S.D.A. CERTIFICATIONS, OR ANY OTHER EXCEPTIONS OR ALTERATIONS MUST BE APPROVED IN WRITING BY THE DISTRICT’S PROCUREMENT GENERAL MANAGER.

5.21 NON-ASSIGNMENT: Vendor may not assign, sell, or otherwise transfer its interest in the Contract award or any part thereof,

without prior written consent from the District. Any attempted assignment of this Contract by Vendor shall be null and void. Any Purchase Order made as a result of this Contract may not be transferred, assigned, subcontracted, mortgaged, pledged, or otherwise disposed of or encumbered in any way by Vendor without the prior written approval of HISD.

5.22 PENALTIES: If Vendor is unable to provide the goods and/or services at the prices quoted in Vendor’s Proposal or if Vendor

fails to fulfill or abide by the terms and conditions of the Contract, Vendor agrees that HISD may take the following action(s), in HISD’s sole discretion:

a. Insist that Vendor honor the price(s) quoted in Vendor’s Proposal; b. Have Vendor pay the difference between Vendor’s price and the price of the next acceptable proposal (as

determined by HISD); c. Have Vendor pay the difference between Vendor’s price and the actual purchase price of the good and/or service

on the open market; and/or d. Recommend to HISD’s Board of Trustees that Vendor no longer be given the opportunity to submit a proposal to

HISD and/or termination of the Contract. 5.23 COMPLIANCE WITH LAWS: Vendor and HISD shall comply with all applicable federal, state, and local laws, statutes,

ordinances, standards, orders, rules, and regulations. All federal, state, and local laws, statutes, ordinances, standards, orders, rules, and regulations contained in Form E, General Certifications, and Form D, EDGAR Certifications, are hereby integrated into this Contract.

5.24 CONFIDENTIALITY: Vendor and HISD agree to secure the confidentiality of all information and records in accordance with

applicable federal and state laws, rules, and regulations. Vendor and HISD understand that the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, governs the privacy and security of educational records and information and agree to abide by FERPA rules and regulations, as applicable.

5.24.1 Open Records Policy. Vendor also acknowledges that HISD is subject to the Texas Public Information Act (TPIA),

and Vendor waives any claim against and releases from liability HISD, its respective officers, employees, agents, and attorneys with respect to disclosure of information provided under or in this RFP or Contract or otherwise created, assembled, maintained, or held by Vendor or HISD and determined by HISD, the Attorney General of Texas, or a court of law to be subject to disclosure under the TPIA.

5.25 RECORD RETENTION: Vendor shall preserve all records relating to this RFP and/or Contract for a period of five (5) HISD

fiscal years or for such longer period as may be required by law, after final payment relating to this project.

5.26 RIGHT TO REVIEW, AUDIT, AND INSPECT: HISD and its authorized representative(s), shall be afforded unrestricted access to and permitted to inspect and copy all of Vendor’s records, which shall include, but not be limited to, accounting records (hard copy as well as computer readable data), correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this project. From time to time, the District may desire to audit certain Vendor documents to ensure compliance with the Contract and/or Proposal. Some audits may include but are not limited to: checking Vendor’s invoices, authenticating the origin, Material Safety Data Sheet (MSDS), shelf life of products and/or other similar types of documents. Vendor agrees to furnish the documents requested in a reasonable time at a mutually agreeable place. If this project is funded from contract/grant funds provided by the U.S. Government or the State of Texas, all documentation, including books and records, shall be available for review and audit by the Comptroller General of the U.S., the Inspector General of the federal sponsoring agency or the State of Texas, HISD and its duly authorized representative(s). For service contracts, HISD reserves the right to require Vendor to furnish operating and/or status reports on a mutually agreed-upon schedule.

5.27 INSURANCE: Unless otherwise agreed to by HISD, Vendor shall carry insurance with responsible carriers acceptable to

HISD rated A or better, by A.M. Best with minimum limits of liability coverage, as stated below, against claims for damages caused by bodily injury, including death, to employees and third parties, and claims for property damage., Vendor shall



furnish Certificates of Acord to HISD or a letter from the insurance carrier on the insurance carrier’s letterhead to HISD indicating compliance with this paragraph under Tab 8. Upon receipt of a letter of intent to award from Procurement Services, the Supplier must submit to Procurement Services the actual Acord Form prior to being recommended to the Board of Education for contract approval. The supplier will have three (3) business days from the date of the letter to submit their certificates of insurance; failure to provide all the requirements will cause your proposal to be non-responsive. Insofar as allowed by law, such Certificates shall indicate an agreement by each carrier not to cancel or significantly diminish coverage without a minimum of thirty (30) days prior written notice to HISD.

Type of Coverage Minimum Limits

Workers’ Compensation and Employer’s Liability Statutory, $100,000 per accident

Automobile Liability: Bodily Injury & Property Damage $1,000,000 Combined Single Limit all owned, non-owned, and hired vehicles

Commercial General Liability $1,000,000 Per Occurrence

Professional Liability (errors and omissions) may be required at the discretion of the Project Manager.

5.27.1 Vendor shall maintain such insurance in full force and effect throughout the duration of the Contract. In the event

that it is not commercially feasible to maintain insurance during the period required by the Contract, Vendor shall supply HISD with equivalent assurance to the required insurance, acceptable to HISD.

5.27.2 HISD shall be named as an additional insured on the automobile and commercial general liability policies. HISD shall be named as an alternate employer on the workers’ compensation policy.

5.27.3 A waiver of subrogation shall be issued in favor of HISD in the workers’ compensation, automobile and commercial general liability policies.

5.27.4 Vendor shall provide HISD with original certificates of insurance, acceptable to HISD. 5.27.5 In the event there is a deductible on any policy, HISD may ask Vendor to provide evidence to the satisfaction of

HISD that Vendor is able to satisfy the deductible. 5.27.6 Notice regarding insurance and cancellation or changes should be mailed to the Project Manager as stated in

Section 2.3 of this RFP. 5.27.7 HISD reserves the right to require additional insurance coverage to be carried by Vendor as deemed desirable by

HISD, depending on the type of project.

5.28 TAX-EXEMPT: HISD is exempt from local, state, and federal taxes. The District will supply tax exemption information upon request. HISD will not be responsible for payment of taxes imposed on goods and/or services purchased by the District; Vendor represents and warrants that it shall pay all taxes or similar amounts resulting from this Contract, including, without limitation, any federal, state, or local income, sales, or excise taxes of Vendor or its employees.

5.29 TAX RESPONSIBILITIES OF VENDOR AND INDEMNIFICATION FOR TAXES: Vendor shall comply with the tax laws of states and the federal government. Vendor and all of its subcontractor(s) shall pay all federal, state, and local taxes applicable to Vendor’s operation, Vendor’s employees, and Vendor’s subcontractors. Vendor shall require all subcontractors to hold HISD harmless from any responsibility for taxes, damages, and interest. If applicable, contributions required under federal, state, and/or local laws and regulations and any other costs, including, but not limited to, transaction privilege taxes, unemployment compensation insurance, Social Security, and Worker’s Compensation, shall be the sole responsibility of Vendor.

5.30 USE OF DISTRICT NAME OR LOGO(S): Vendor may not use HISD’s official name or logo, or any phrase associated with HISD, without the written permission from the Board of Education, the Superintendent of Schools, or their designee.

5.31 NO AGENCY OR ENDORSEMENTS: It is the intention of the parties to this Contract that Vendor is independent of HISD,

is an independent contractor, and is not an employee, agent, joint venture, or partner of HISD. This Contract shall not be construed to create or imply any partnership, agency, or joint venture, nor shall it be construed or deemed an endorsement of a specific company, service, or product. Vendor agrees that HISD has no responsibility for any conduct of any of Vendor’s employees, agents, representatives, contractors, or subcontractors, and Vendor shall remain solely responsible for their supervision, daily direction and control, payments of salary (including withholding of income taxes and social security), workers’ compensation, and disability benefits, and like requirements and obligations.

5.32 THIRD PARTIES: Nothing in this RFP shall create a contractual relationship with or a cause of action in favor of a third party

against either HISD or Vendor. 5.33 USE BY OTHER GOVERNMENTAL ENTITIES: Tex. Educ. Code Section 44.031(a)(4) and Tex. Gov’t Code Ch. 791 allow

for government entitles, i.e. state agencies, local governments and school districts, to enter into cooperative agreements to



allow the procurement process to be performed by a single entity on behalf of all those electing to participate. HISD may allow other governmental entities to “piggyback” onto any existing contract between HISD and Vendor entered into pursuant to this RFP, as contemplated in United States Department of Agriculture Memorandum SP35-2012, Procuring Services of Purchasing Cooperatives, Group Purchasing Organizations, Group Buying Organizations, etc., June 12, 2012 (“SP 35-2012”). Accordingly, other governmental entities are authorized to enter into separate and independent contracts with Vendor that employ the same negotiated terms and conditions contained in an existing contract(s) between HISD and Vendor. In the event HISD allows another governmental entity to join, it is expressly understood that HISD shall in no way be liable for the obligations of the joining governmental entity.

5.34 SUBCONTRACTORS: Vendor shall not use subcontractors in the performance of any part of this Contract without prior

written approval by HISD. If Vendor uses subcontractors in the performance of any part of this Contract, Vendor shall be fully responsible for all acts and omissions of the subcontractors. Nothing in this Contract shall create for the benefit of any such subcontractor any contractual relationship between HISD and any such subcontractor, nor shall it create any obligation on the part of HISD to pay or to see to the payment of any monies due any such subcontractor except as may otherwise be required by law. Vendor represents and warrants that it is willing, able, and capable of obtaining, supervising, and being responsible for any subcontractors who perform and/or provide products and services related to this Contract.

5.35 NO WAIVER: HISD does not waive or relinquish any immunity or defense on behalf of itself and its trustees, officers, employees, and agents as a result of entering into any Contract relating to this project or by performing any of the functions or obligations relating to the project. Nothing in any Contract shall be constructed as creating any personal liability on the part of any trustee, officer, employee, or representative of HISD. No waiver of a breach of any provision of the Contract shall be construed to be a waiver of any breach of any other provision. No delay in acting with regard to any breach of any provision shall be construed to be a waiver of such breach.

5.36 INDEMNIFICATION: VENDOR SHALL INDEMNIFY, AND HOLD HARMLESS AND DEFEND HISD AND EACH OF ITS

RESPECTIVE PAST, PRESENT AND FUTURE OFFICERS, TRUSTEES, AGENTS, AND EMPLOYEES IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, FROM AND AGAINST ALL CLAIMS, LOSSES OR DAMAGES, INCLUDING ATTORNEY’S AND EXPERT’S FEES, COURT COSTS AND EXPENSES INCURRED BY HISD AND ITS OFFICERS, TRUSTEES, AGENTS AND EMPLOYEES, FOR INJURY, INCLUDING DEATH, TO PERSONS, OR DAMAGE TO OR DESTRUCTION OF PROPERTY, AND LAWSUITS, DEMANDS OR CAUSES OF ACTION OF WHATSOEVER KIND OR NATURE BASED UPON, RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH ANY NEGLIGENT ACT, ERROR, OMISSION, MISREPRESENTATION, OR MISCONDUCT BY VENDOR AND ITS EMPLOYEES, OFFICERS, SUB-CONSULTANTS, OR AGENTS ARISING OUT OF OR IN CONNECTION WITH VENDOR’S PERFORMANCE OF THE CONTRACT. All obligations as set forth in this paragraph shall survive the acceptance and termination of the Contract.

It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation, such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligations shall continue in full force and effect.

5.37 NON-APPROPRIATION: Renewal of this Contract, if any, will be in accordance with Tex. Local Gov’t Code Section 271.903 concerning non-appropriation of funds for multi-year contracts. Notwithstanding any other provision of this Contract or obligation imposed on HISD by this Contract, HISD shall have the right to terminate this Contract and/or any Purchase Order without default or liability to Vendor resulting from such termination, effective as of the expiration of each budget period of HISD if HISD determines, in its sole discretion, that there are insufficient funds to extend this Contract and/or any Purchase Order. The parties agree that this Contract and/or any Purchase Order are commitments of the current revenue of HISD only. Vendor further acknowledges that federal and/or state grant funds may be used to pay for amounts due under this Contract; as such, if HISD does not receive sufficient funding to make the payments due under this Contract or a Purchase Order, HISD may terminate this Contract or any Purchase Order without penalty or further obligation to Vendor, at any time upon written notice to Vendor.

5.38 WORK STOPAGE: In no event shall HISD be liable or responsible to Vendor or any other person for or on account of any stoppage or delay in work.

5.39 HAZARDOUS MATERIALS: In the performance of Vendor’s services, Vendor shall not cause any release of Hazardous Substances, including asbestos, or contamination of the environment, including the soil, the atmosphere or any water course or ground water. Vendor shall be liable for any claims or damages resulting from such release of or exposures to any such substances as a result of Vendor’s activities.

5.40 GOVERNING LAW AND EXCLUSIVE VENUE: Any Contract resulting from this RFP shall be governed by, construed and



enforced in accordance with the laws of the State of Texas without regard to the conflicts or choice of law principles thereof. The parties irrevocably consent to the jurisdiction of the State of Texas, and agree that any court of competent jurisdiction sitting in the County of Harris, State of Texas, shall be the sole and exclusive place of venue to resolve any dispute with respect to the Contract.

5.41 SECTION HEADINGS: The headings of sections and paragraphs contained in any document related to this project are for

convenience only and shall not, expressly or by implication, limit, define, extend, or construe the terms or provisions relating to the project.

5.42 SEVERABILITY: If any portion of this RFP or Contract is deemed to be unenforceable, the remainder shall be construed as

if such unenforceable provisions had never been contained therein. 5.43 DISPUTE RESOLUTION: At the sole option of the District, HISD may require Vendor and HISD to submit any and all disputes

to the alternative dispute resolution process of non-binding mediation. Vendor and HISD agree that prior to filing any suit, administrative proceeding, or other legal proceeding, related to this Contract, Vendor and HISD further agree to attend the mediation and to participate in settlement negotiations in a good faith effort to resolve any and all disputes through a written settlement agreement if HISD requires non-binding mediation. Any such mediation shall take place in Harris County, Texas, and will be conducted by a mediator mutually selected by the parties. If the parties are unable to agree on a mediator, each party shall submit a list of up to three names as a mediator along with a curriculum vitae and costs associated with each name submitted. Each party will alternate in striking one name from the list until only one name remains. The remaining name will be the agreed-upon mediator. HISD will have the first opportunity to strike a name from the list. All fees and costs of the mediation shall be shared equally between the parties. No formal record shall be made of the mediation.

5.44 ATTORNEY FEES: In connection with HISD’s defense of any suit against it and/or HISD’s prosecution of any claim, counterclaim or action to enforce any of its rights and/or claims related to this RFP or any Contract, in which HISD prevails as to all or any portion of its defense(s), claims, counterclaims or actions, HISD shall be entitled to recover its actual attorney’s fee and expenses incurred in defending such suit and/or in prosecuting such claim or action. Likewise, in connection with Vendor’s defense of any suit against it and/or Vendor’s prosecution of any claim, counterclaim or action to enforce any of its rights and/or claims related to this RFP or any Contract, in which Vendor prevails as to all or any portion of its defense(s), claims, counterclaims or actions, Vendor shall be entitled to recover its actual attorney’s fee and expenses incurred in defending such suit and/or in prosecuting such claim or action.

5.45 NOTIFICATION OF MATERIAL CHANGE: Vendor is required to notify HISD when any material change in operations

occurs, including changes in distribution rights for awarded products, bankruptcy, material changes in financial condition, change of ownership, and the like, within three (3) business days of such change.

5.46 NOTICE: Any notice required to be given relating to the Contract shall be in writing and shall be duly served when hand-

delivered to the addressees set forth below, or shall have been deposited, duly registered or certified, return receipt requested, via the United States Postal Service, addressed to the other party at the following addresses:

To: Vendor’s Contact Name and Address as listed in Form B To: Houston Independent School District Attn: Superintendent of Schools 4400 West 18th Street Houston, Texas 77092 Copy To: Mr. Gilberto A. Carles, MBA General Manager – Procurement Services 4400 West 18th Street Houston, Texas 77092

Any party may designate a different address by giving the other party ten (10) days prior written notice in the above manner.



6.0 SPECIFIC TERMS AND CONDITIONS 6.1 ORDERS: A contract number will be issued to the successful Proposer(s) for anticipated product in advance of delivery.

Releases for delivery will be provided by the District on a weekly schedule via an order form. Vendor will only be paid for products that are awarded, requested by the District, and delivered at the scheduled time and date. The contract number must appear on each invoice / delivery ticket. The original copy and one other copy of the delivery invoice / delivery ticket must be left with product and signed by designated HISD Nutrition Services employee, verifying product receipt.

6.2 CHANGE PURCHASE ORDERS: HISD reserves the right to make change orders on quantities and/or items on any order up to 2:00 P.M. the day before scheduled deliveries.

6.3 DELIVERIES: The District’s standard delivery terms are found in Section 5.6. The following terms are specific to this RFP:

6.3.1 Delivery Time. Deliveries of all items are to be made between 7a.m. and 2 p.m. daily in amounts specified on orders for the individual schools, according to requested amounts of the HISD approved order form furnished by District representatives, or according to quantity changes made by the Procurement Department before scheduled deliveries.

6.3.2 Delivery Vehicles. All delivery vehicles must be clean, sanitary, properly refrigerated and enclosed, in good repair, appropriate for the type of product being delivered according to HAACP guidelines, and meet all health and sanitation requirements of the State of Texas and local and federal governments. HISD reserves the right to reject the use of any equipment by a carrier if it is not in a clean sanitary condition and suitable for handling foods.

6.3.3 Drivers. Drivers shall present a neat and clean appearance, be in uniform, show valid picture ID, and make their deliveries in an efficient and courteous manner. Drivers must meet all requirements for license and driving record, required by the Tex. Educ. Code Section 22.085.

6.3.4 Notification of Late Deliveries. Vendor must promptly notify HISD when an item cannot be delivered within the specified delivery time (according to the purchase order). If Vendor is unable to deliver within a mutually acceptable time, HISD, in its sole discretion, may elect to purchase the outstanding item(s) from alternate sources/suppliers.

6.3.5 Shortages. Vendor must notify HISD of any back order or shortage items at least one (1) day prior to the regularly scheduled delivery. Any items that Vendor fails to deliver on the designated, scheduled delivery date must be reshipped by 10:00 a.m. the following day.

6.3.6 Sanitation/Safety. Vendor warrants that all products will be fresh, clean, wholesome upon delivery, and will be packaged, handled, and transported in an acceptable manner. All temperature and sanitation procedures must meet all HAACP guidelines at all times during the delivery process. HISD has the right to refuse the truckload if HISD, in its sole discretion, determines the delivered product is unacceptable, or, if Vendor has already delivered the product, Vendor must pick up the unacceptable product and (at the sole discretion of HISD), Vendor must issue a credit or replacement in a timely manner.

6.3.7 Approved Products and Alternates. Vendor may only deliver approved products and/or selected alternates awarded in the RFP to schools unless authorized in writing by HISD’s Child Nutrition Program. Failure to follow this policy may result in Vendor not being paid and/or the Contract being terminated.

6.3.8 Delivery Method. District pallet size specifications are 48 x 40 standard pallet size used with 4 way entry by pallet jack and forklift. The district does not participate in a pallet exchange.

6.4 CONTRACT PERFORMANCE: HISD reserves the right to cancel the entire Contract and/or buy in the open market at the

current price and charge Vendor the difference between the price so paid and the Proposal price in the event (a) any item is not delivered according to the specifications and/or awarded proposal price, (b) brands of merchandise other than brand names on the Proposal are delivered without HISD’s prior approval, or (c) orders are not delivered within the specified time period. Vendors not in compliance with the terms and conditions set forth in this RFP will be in default, and HISD reserves the right to not place orders from or accept proposals from said Vendor for a period of one year.

6.5 LABELING: All products are to be individually labeled and wrapped to maintain freshness. All products must have a

Packing Date, Expiration Date, Manufacturer Product Code, and a Lot Number. Labels and labeling shall conform to all federal regulatory requirements for goods in interstate commerce and containers shall meet U.S. Department of Transportation Requirements.

6.6 NUTRITIONAL STANDARDS: Product(s) must meet federal and state guidelines for the School Breakfast Program (SBP),

National School Lunch Program (NSLP), the After School Snack Program (ASSP), the Dinner Program and/or Smart Snack requirements. The District shall reserve the right to determine, at its sole discretion, the program for which HISD will use selected product(s). The FDA and Texas Public School Regulations mandate that all food products selected under this RFP contain 23 grams of fat or less per serving. All food products (excluding those that contain naturally-occurring trans-fat) must be labeled and certified as containing zero grams of trans fat per serving (FDA defines zero as less than 0.5 grams per serving). Products not meeting nutritional standards shall not be considered.



6.7 FRESHNESS: Code date information is to be submitted to the HISD Culinary Specialist. 6.8 QUALITY: Minimum standards of identity, fill of container, fill of package, etc., are automatically part of a product

specification or identity. These standards are specifically covered in Federal and/or State regulations. Any Vendor who violates these standards is automatically in violation of this project with HISD as well as Federal and/or State laws. If, a product is not available in the approved pack size, contact the Project Manager.

6.9 SHELF LIFE: One week or more shelf life is expected of delivered product. Out-of-date product is to be picked up by Vendor

and credited to individual schools. Shelf life must be noted on item number 5, on the Product Verification Form. 6.10 PRODUCT ANALYSIS: HISD reserves the right to request that Proposer submit an independent laboratory analysis on any

item before awards are made. An independent laboratory may randomly monitor bacterial levels. If unacceptable levels are found, HISD will give Proposer 24 hours’ notice to pick up product or HISD may ship it to an outside public warehouse to be stored at Proposer's expense. Proposer will pay for independent lab tests if product does not meet specifications.

6.11 PRODUCT REFORMULATION: If TDA or USDA guidelines call for a reformulation of a product to meet updated standard

guidelines, HISD reserves the right to purchase any new and/or alternate product(s) not currently on the approved list during the term of the Contract that have been reformulated to meet new guidelines. Vendor must submit all nutrition documentation for review to the project manager for consideration and approval. The District, at its sole discretion, reserves the right to call for samples and nutritional information and to select alternate/substitute items.

6.12 PRODUCT RECALL: If a product recall is instituted on an item that has been furnished and delivered to HISD, Vendor must

immediately notify the project manager and Quality Assurance Manager Heather Kohn at [email protected] with all pertinent information regarding the recall.

6.13 MARKET BASKET SURVEY: HISD reserves the right, at its sole discretion, to use a “Market Basket Survey” method based

on strategically selected criteria to determine the most advantageous Proposal(s). 6.14 FACILITY TOURS: HISD may require a walk-through inspection tour of Proposer’s facilities to ensure Proposer’s ability to

provide goods and/or services as stated in this RFP and in the Contract. If HISD deems a facility tour necessary, the District will contact Proposer to make appropriate arrangements.

6.15 EXCESS PRODUCT: HISD is not responsible for any product Vendor has on hand at the end of the bid period. 6.16 EQUIPMENT: Vendor must provide all necessary equipment for the goods and/or services provided under this RFP or the

Contract. All costs, if any, associated with the equipment must be included in Vendor’s pricing submitted under Tab 6. Vendor must provide support staff to service, maintain, and repair furnished equipment as necessary at no additional cost to HISD. On at least a bi-annual basis, Vendor shall inventory the equipment, perform formal preventative service, and report its findings to HISD Quality Assurance Manager Heather Kohn at [email protected] Should equipment malfunction or need maintenance, HISD expects Vendor to respond to any service call within 48 hours. In the event of cancellation or at the end of the Contract term, Vendor shall remove its equipment on the date and time determined by HISD and shall do so at no cost to the district.



7.0 SCOPE OF WORK AND SPECIFICATIONS SCOPE OF WORK: It is the intention of Houston ISD to establish one or more contracts to deliver both commercial products and diverted USDA commodity end products needed to meet the menu as well as the federal and state requirements for the school breakfast and lunch programs. Pricing will be negotiated with each renewal as needed. Houston ISD reserves the right to accept or reject any items included by Vendor in this section. Awards will be made to the successful Vendor(s) based on overall best value to the District. Proposals can be made for any or all services and products described herein. The terms and conditions listed below apply to all categories, including both commercial and commodity processed items, unless directed otherwise by the District. District may request additional and specific pack sizes needed to operate efficiently with existing equipment and/or equipment changes during the term of the contract. The district will monitor key performance indicators throughout the term of the contract to evaluate effectiveness. Key performance indicators for this contract include, but are not limited to, changes in student participation, increase of menu items, and increased productivity. Awarded vendors will also be monitored for on-time deliveries, quality of goods and/or services, and compliance with the terms and conditions of this project. 7.1 COMMERCIAL ITEMS: All prices and discount percentages in Proposal shall be firm for the period of July 1, 2017 through June 30, 2018. Maximum consideration will be given to these proposers. Awarded products may be used as delivered or processed further to create menu items and/or recipes for use in the district. At any time during the contract period, district may request additional support from awarded vendor(s) for further research and development of products to better meet district needs. Proposers are requested to submit availability to work with the District for research and development of new items and/or ideas. The District will make the sole and final determination regarding specifications, quality, performance levels, and interchangeability, in regards to this bid. 7.2 COMMODITY PROCESSING ITEMS: Houston ISD invites food processors that have a state processing (participation) agreement with the Texas Department of Agriculture (TDA) for the 2016-17 school year and each subsequent renewal period, if options are exercised, to bid as appropriate. It is expected that the bulk of processed commodity product ordered through this RFP will commence in the school year 2016-17 with the first renewal option. Vendors are requested to submit pricing along with commercial pricing, as applicable.

Award is not promise to divert USDA commodity end product to TDA approved processors. Pricing submitted by TDA approved processors must include the USDA/TDA approved end product data sheet to be considered. All portions of the end product sheet must be complete. 7.3 REQUIRED INFORMATION [TAB 4]: Under Tab 4, you must submit the following information:

7.3.1 Brand, Packer, Manufacturer Product Code, Net Weight Per Package, Units Per Package, Unit Price based on a direct shipment to the designated locations as needed, to include freight and unloading charges, and Extension Total for each line item/category proposed (including alternates and new products).

7.3.2 Disclose, on separate company letterhead, any products containing peanut or peanut byproducts, and any products submitted that contain protein derived from milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, or soybeans. This is required by the FDA as a result of the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA).

7.3.3 Menu of Optional Services. Under Tab 4, Proposer must provide HISD with a menu of any optional services

offered. Price each optional service separately and independently of any other good and/or service offered and place pricing information under Tab 6 (see section 8.3).

7.3.4 For each category/line item bid involving food products (including new products and alternates), you must

submit the following according to the instructions in Section 7.2.4.3:

☐ Product Verification Form (located in appendix A page 12)

☐ Nutritional Facts Label (sample located in appendix A page 14)

☐ The CN label or The Production Analysis regarding the specific nutrition information for the Meat/Meat Alternate and/or Grain contributions

☐ Ingredients Label with the nutrition information and all ingredients contained in the product

☐ Trans-Fatty Acid Information

☐ Product Sample Label (located in appendix A page 15) is to be affixed to each sample case being submitted for consideration, product code must match paperwork (please do not place not over the opening



of the case) (REQUIRED ONLY IF HISD CALLS FOR A SAMPLE, DO NOT SEND SAMPLE UNLESS SPECIFICALLY REQUESTED TO DO SO)

7.3.4.1 If there are any questions on how to fill out the forms call or email the Manager of Nutrition, Amanda

Oceguera, at 713-491-5713 or e-mail at [email protected].

7.3.4.2 Staple the Product Verification Form, Nutritional Fact label, CN label, and Ingredients Label (in that order) in a packet and submit the packet with your Proposal under Tab 4. These forms must also be saved in PDF format to a SEPARATE USB stick and included with your packet of forms under Tab 4.

7.4 SAMPLES: SAMPLES WILL BE REQUESTED BY HISD AFTER THE RFP SUBMISSION DEADLINE. EACH BIDDER

WILL BE NOTIFIED OF SAMPLE REQUESTS INDIVIDUALLY. DO NOT SEND SAMPLES UNTIL NOTIFIED OFFICIALLY BY HISD VIA EMAIL. Samples of all items must be delivered in complete, full cases unless specified otherwise to HISD Nutrition Services Department, ATTN: BID SAMPLES – RFP #16-03-23 Grocery Products and Related Items 6801 Bennington Ave., Receiving Dock Door #1, Houston, Texas, 77028, in compliance with district specifications in order to be evaluated for this and future proposal periods. Samples of new unapproved, or approved products are required when called for in the proposal specification. If HISD calls for samples, Proposer must submit the forms required in Section 7.2.4 along with each sample item. Samples will not be accepted unless these forms have been properly completed and accompany with the sample being submitted, in a separate envelope, for consideration. The product code listed on all forms must match the sample.

7.5 ALTERNATES: In addition to the products formally listed in the RFP, HISD highly encourages Proposer to submit a

complete list of alternate products for consideration that may differ slightly (e.g., mildly spicy vs. non-spicy, different flavored, etc.) from a product listed in the RFP at a firm price for the length of the RFP/Contract term.

7.5.1 You may propose an alternate product when submitting you proposal by entering all necessary information on the

pricing spreadsheet provided with the original RFP documents. There will be a separate tab included specifically for alternate items. Each alternate line item MUST reference the original specification alternate is provided for as appropriate. Failure to do so may result in the product being marked not to specification.

7.5.2 Proposer must submit the forms required in Section 7.3.4 and provide pricing information in compliance with Section 8.3 for each alternate product in the Proposal.

7.5.3 In the event of crop failures, product shortages, plant closures, acts of God, changes in consumer taste and

expectations, or any time such is determined to be in the best interest of HISD, the HISD Nutrition Services Department, at its sole discretion, reserves the right to call for alternate products from an awarded vendor at any time during the Contract term. HISD may then select from alternate products submitted for consideration to be included in the Contract. Vendor may request HISD’s approval to replace a product or provide an alternate product to the Contract if: the replacing or alternate product(s) are equal (or superior) to the original product(s) offered or discounted in a similar degree (or greater) degree. HISD may reject any proposed alternates, without cause, in its sole discretion.

7.6 NEW PRODUCTS: HISD highly encourages Proposer to submit a complete list of new product ideas in addition to the

products formally listed in the RFP. Price must be included for each new product and must be firm for the length of the RFP/Contract term. 7.6.1 Proposer must submit the forms required in Section 7.3.4 and provide pricing information in accordance

with Section 8.3 for each new product in the Proposal. Do not send samples for new product ideas unless requested in writing by HISD.

7.6.2 The HISD Nutrition Services Department, in its sole discretion, reserves the right to call for samples of new product ideas and/or development of new product ideas from an awarded vendor at any time during the Contract term. Vendor may also request HISD’s approval to add a new product to the Contract. HISD may, in its sole discretion and in accordance with applicable law, add new products to the Contract. Pricing of any new product(s) shall be equivalent to the percentage discount or proposed prices for other similar products. No new products may be added to avoid competitive procurement procedures; compliance with applicable law, including without limitation, the change order requirements detailed in Tex. Educ. Code Section 44.0411. HISD may reject any proposed additions to new products to the Contract, without cause, in its sole discretion.



8.0 PRICING AND DELIVERY INFORMATION 8.1 TAX-EXEMPT: HISD is exempt from and will not be responsible for payment of any taxes. Proposals should not include

taxes. 8.2 COSTS: Proposer must enumerate all costs associated with the project. Any costs associated with the project not explicitly

enumerated and discussed in the Proposal will not be honored. Proposer shall provide information on its standard fee arrangement for any goods and/or services proposed, and any discounts offered. Proposer must include in the cost proposal all travel and accommodation expenses associated with travel to perform this project. Travel expenses associated with the project must conform to a “reasonableness” test for travel expenditures associated with governmental travel and must be pre-approved by the District before being incurred.

8.3 PRICING [TAB 6]: For all proposed goods and services, alternates, new products, and optional services, Proposals must provide pricing information including any additional pricing examples as well as pricing discount schedules that need to be submitted to provide HISD with a comprehensive catalog and pricing information. Catalog/price lists must be included in the Proposal under Tab 6. For alternates, new products, and optional services, Proposer shall provide independent and separate pricing information. HISD may request that Vendor provide discounts or other adjustments, on a per-Purchase Order basis. You must comply with the following requirements when submitting any and all pricing information:

8.3.1. Lowest and Best Price. Proposer should propose his/her lowest and best price (as applicable) on each good and/or

service that is the subject of this RFP. 8.3.2. Firm Prices. Proposed prices and discount percentages should be firm (fixed) for the entire proposal period.

Maximum consideration will be given to these Proposers. However, if Proposer, believes it has a better (more cost effective method) method, such Proposal may be considered, but only as an alternate proposal and should be noted on Form G, Exceptions.

8.3.3. Two Decimal Points. Due to system constraints, pricing must be to no more than two (2) places past the decimal point. HISD reserves the right on any Proposals submitted where pricing is more than two (2) places past the decimal point to round the price down to two (2) places past the decimal point.

8.3.4. No pre-pricing. HISD will not accept pre-priced packages. 8.4 DISCOUNTS PROVIDED ON PRICE LISTS AND CATALOGS [TAB 6]: Under Tab 6, detail the average discount provided

by Vendor on stated prices according to the following requirements: 8.3.5. Provide discount schedules for all products Vendor intends to offer, shown either by category or code. Use separate

discount for any net items with description of these net items. 8.3.6. Provide labor notes for each category shown that Vendor is proposing. These notes must include Vendor’s overhead,

profit, and HISD fees. Provide Vendor’s miscellaneous material markups. If Vendor does not provide this labor classification, mark “NA” (Not Available).

8.3.7. Provide a description on how Vendor intends to guarantee the performance of Vendor’s labor, and what benchmark will be used to determine the labor hours for each project.

8.3.8. Indicate any list price adjustment Vendor intends on providing during the Contract term and on what it is based. For example: CPI.

8.5 DELIVERY TERMS [TAB 5]: The District’s standard delivery terms are outlined in Section 5.6, Delivery; see Section 6.3

delivery terms specific to this Project. You must respond to the following requests under Tab 5:

8.3.9. Describe Vendor’s service procedure and state the proposed time frame from customer request to product or service delivery and completion.

8.3.10. Describe how Vendor deals with shipping delays. How does Vendor notify its customers of delay? 8.3.11. Provide Vendor’s shipping schedule reporting form. Detail how often Vendor updates the form. 8.3.12. Detail Vendor’s average percentage of on-time delivery.

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