Mississippi Administrative Code › Title 12 - Finance and Administration › Part 6 - Office of Purchasing, Travel and Fleet Management › Chapter 5 - Modification and Termination of Contracts for Commodities › Sec2 12-6-5.101 - Introduction › Section 12-6-5.101.02 - Termination for Default Clause

Current through June 25, 2024
Termination for Default
(1) Default
If the contractor refuses or fails to perform any of the
					 provisions of this contract with such diligence as will ensure its completion
					 within the time specified in this contract, or any extension thereof otherwise
					 fails to timely satisfy the contract provisions, or commits any other
					 substantial breach of this contract, the Agency Procurement Officer may notify
					 the contractor in writing of the delay or non-performance and if not cured in
					 ten (10) days or any longer time specified in writing by the Agency Procurement
					 Officer, such officer may terminate the contractor's right to proceed with the
					 contract or such part of the contract as to which there has been delay or a
					 failure to properly perform. In the event of termination in whole or in part,
					 the Agency Procurement Officer may procure similar supplies or services in a
					 manner and upon terms deemed appropriate by the Agency Procurement Officer. The
					 contractor shall continue performance of the contract to the extent it is not
					 terminated and shall be liable for excess costs incurred in procuring similar
					 goods or services.
(2)
				  Contractor's Duties
Notwithstanding termination of the contract and subject to
					 any directions from the Agency Procurement Officer, the contractor shall take
					 timely, reasonable, and necessary action to protect and preserve property in
					 the possession of the contractor in which the State has an interest.
(3) Compensation
Payment for completed supplies delivered and accepted by
					 the State shall be at the contract price. The State may withhold from amounts
					 due the contractor such sums as the Agency Procurement Officer deems to be
					 necessary to protect the State against loss because of outstanding liens or
					 claims of former lien holders and to reimburse the State for the excess costs
					 incurred in procuring similar goods and services.
(4) Excuse for Non-performance or Delayed
				  Performance
Except with respect to defaults of subcontractors, the
					 contractor shall not be in default by reason of any failure in performance of
					 this contract in accordance with its terms (including any failure by the
					 contractor to make progress in the prosecution of the work hereunder which
					 endangers such performance) if the contractor has notified the Agency
					 Procurement Officer within 15 days after the cause of the delay and the failure
					 arises out of causes such as: acts of God; acts of the public enemy; acts of
					 the State and any other governmental entity in its sovereign or contractual
					 capacity; fires; floods; epidemics; quarantine restrictions; strikes or other
					 labor disputes; freight embargoes; or unusually severe weather. If the failure
					 to perform is caused by the failure of a subcontractor to perform or to make
					 progress, and if such failure arises out of causes similar to those set forth
					 above, the contractor shall not be deemed to be in default, unless the supplies
					 or services to be furnished by the subcontractor were reasonably obtainable
					 from other sources in sufficient time to permit the contractor to meet the
					 contract requirements. Upon request of the contractor, the Agency Procurement
					 Officer shall ascertain the facts and extent of such failure, and, if such
					 officer determines that any failure to perform was occasioned by any one or
					 more of the excusable causes, and that, but for the excusable cause, the
					 contractor's progress and performance would have met the terms of the contract,
					 the delivery schedule shall be revised accordingly, subject to the rights of
					 the State under the clause entitled (in fixed-price contracts, "Termination for
					 Convenience," in cost-reimbursement contracts, "Termination"). (As used in this
					 paragraph of this clause, the term "subcontractor" means subcontractor at any
					 tier).
(5) Erroneous
				  Termination for Default
If, after notice of termination of the contractor's right
					 to proceed under the provisions of this clause, it is determined for any reason
					 that the contract was not in default under the provisions of this clause, or
					 that the delay was excusable under the provisions of Subsection 5.101.02(4),
					 Excuse for Non-performance or Delayed Performance, of this clause, the rights
					 and obligations of the parties shall, if the contract contains a clause
					 providing for termination for convenience of the State, be the same as if the
					 notice of termination had been issued pursuant to such clause. If, in the
					 foregoing circumstances, this contract does not contain a clause providing for
					 termination for convenience of the State, the contract shall be adjusted to
					 compensate for such termination and the contract modified accordingly subject
					 to the contractor's rights under Chapter 6, Legal and Contractual
					 Remedies.
(6) Additional
				  Rights and Remedies
The rights and remedies provided in this clause are in
					 addition to any other rights and remedies provided by law or under this
					 contract.