Terms Governing This Solicitation: The terms below govern this solicitation. Respondents may not request revisions to this section. If a respondent objects to a provision in this Section 5, respondent must not bid.

1. Governing Law: The laws of the state of Tennessee, without giving effect to its principles of conflicts of law, govern this solicitation. Any liability of the University is governed by the Tennessee Claims Commission Act. The venue for any claim against the University is the Tennessee Claims Commission.

2. Evaluation Process:
a. Generally: The University will use the evaluation process to award a contract based on the best value to the University: the best overall combination of technical and pricing.
b. Subjective Nature: Respondent states that it understand that its response to this solicitation will be evaluated by a scoring committee. Respondent acknowledges that the scoring committee will subjectively evaluate respondent’s technical proposal.

3. Communications:
a. Ex Parte Communications Prohibited: Regarding this solicitation, respondents and potential respondents shall not communicate with any University employee, except the official listed in the Administrative Information section, or another member of the Office of Procurement Services. Communication with University staff outside of the Office of Procurement Services is ex parte communication.

b. Disqualification: The University may disqualify any respondent’s response if the University discovers that the respondent engaged in ex parte communications.

c. Verbal Communications: Any verbal communications between any potential respondent, or a respondent, and the University are not binding on the University.

4. Confidentiality:
a. Introduction: Tennessee law limits the University’s ability to withhold records from disclosure. Respondents must assume that all documentation, including pricing, submitted to the University will be subject to disclosure. The University will not sign non-disclosure agreements related to respondent’s response to this solicitation.

b. Generally: The University hereby notifies all potential respondents and respondents that placing confidentiality notices on documents submitted to the University does not make the documents confidential under Tennessee law. The University will ignore such notices. Moreover, the University will not agree to provide advanced notice of disclosure.

c. Open File Period: After the University issues an intent-to-award notice, Tennessee law deems all materials submitted by respondents open for inspection by any respondent for 7 calendar days.

d. Public Records Act: If the University issues a final award, all documents, including the final contract, are subject to disclosure to any Tennessee citizen.

e. Routine Disclosures: The University routinely discloses records to the State of Tennessee’s agencies (including State Audit), and the Tennessee General Assembly.

f. Disclosures: State law does not allow the University to place confidentiality obligations on records that are disclosed under applicable law.

5. Response Preparation Costs: The University will not pay any costs that a respondent incurs associated with the preparation, submittal, or presentation of a response. By responding, each respondent waives any claim against the University for costs the respondent incurs as a result of responding to this solicitation.

6. Respondent Review; Waiver of Objections:
a. Required Review: Each potential respondent must carefully review this solicitation.

b. Questions: Any potential respondent having questions, concerns, or comments regarding this solicitation must notify the University no later than the deadline stated in the timeline of events.

c. Waiver of Objections: Any respondent who fails to submit questions, concerns, or comments before the deadline irrevocably waives their right to object to anything in this solicitation. Accordingly, any such respondent’s protest will be invalid in the event that the protest involves issues to which the respondent could have objected, but did not.

7. Amendment; Cancellation; Rebid:
a. University’s Right to Amend: The University may amend this solicitation at any time before the response deadline. If the University amends this solicitation, the University will issue a written addendum.

b. University’s Right to Cancel: The University may cancel this solicitation at any time. The University will have no liability to Respondents in the event of a bid cancellation.

c. University’s Right to Rebid: In the event that the University cancels a bid, the University may issue a rebid. In the event that the University issues a rebid, the University has no obligation to provide notification to respondents other than through issuance of the rebid.

8. Unrestricted Right to Reject: The University may reject any response for any reason.

9. Immaterial Defects: The University may waive minor variances from full compliance with this solicitation. If the University waives immaterial defects in a response, such waiver does not modify this solicitation’s requirements.

10. Negotiation: The University may negotiate with the top-scoring respondents in the best interest of the University.

11. Respondent’s Right to Withdraw its Response:
a. Withdrawal: Respondents may withdraw their response at any time before the deadline for responses. To withdraw a response, a Respondent must submit a written request signed by a representative authorized to legally bind the Respondent. Respondent must send withdrawal requests to the Purchasing contact listed above.

b. Resubmit: Respondents may resubmit a response at any time before the deadline for responses.

12. Late Responses: The University will not accept responses after the deadline listed in the Administrative Information section.

13. University’s Discretion:
a. Generally: All decisions regarding this solicitation, including the award, are within the University’s sole discretion. For clarity, as used in this solicitation, the word “may” means “sole discretion.”

b. Examples: Without limiting the University’s unrestricted discretion, the University may:

i. Reject any responses to this solicitation for any reason.

ii. Seek new proposals at any time before the response deadline.

iii. Seek clarification of additional information from any individual respondent.

iv. Modify the selection criteria.

v. Modify the time schedule.

vi. Conduct negotiations:

1. The University may negotiate with all qualified respondents.

2. The University may elect to conduct multiple negotiation rounds, and the University may structure the negotiations in the University’s sole discretion.

3. If the University determines costs and contract finalization discussions and negotiations are not productive, the University reserves the right to bypass the apparent best evaluated respondent and enter into contract negotiations with the next apparent best evaluated respondent.

14. Dispute Resolution: In the event that a respondent disputes anything related to this solicitation, the respondent must first follow the University’s protest procedures. If the respondent is not satisfied with the University’s resolution of the respondent’s protest, and if requested by the University’s Chief Financial Officer, the respondent shall enter into mediation with the University before the respondent pursues any formal legal action. The parties shall make reasonable efforts to resolve any dispute before filing any formal legal action.

15. Waiver of Claims:
a. Irrevocable Waiver: By responding to this solicitation, respondent hereby irrevocably waives any claims against the University’s trustees, officers, and employees, or former employees. Respondent hereby covenants not to sue University employees in their individual capacity. This release and waiver applies to respondent and respondent’s successors, heirs, and assigns.
b. Materiality: The University and respondent state that this clause is material to this solicitation.

16. University Policies:
a. Non-Solicitation: Respondents shall comply with the University’s “Vending and Solicitations on the University Campus” policy: http://policy.tennessee.edu/fiscal_policy/fi0325/
b. Gift Acceptance: Respondents shall comply with the University’s “Employee Gift Acceptance Policy”: http://policy.tennessee.edu/fiscal_policy/fi0717/

17. Severability: The University and respondent intend as follows:
a. That if any provision of this solicitation is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;

b. That if an unenforceable provision is modified or disregarded in accordance with this section, then the rest of the solicitation will remain in effect as written; and

c. That any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.

18. Compliance with Law: Respondent shall comply with applicable law.