Mississippi Administrative Code › Title 27 - STATE PERSONNEL BOARD › Part 100 › Chapter 8 - RULEMAKING AND DECLARATORY OPINIONS › APPENDICES › Appendix 27-100-8-C - Required Clauses in Contracts for Services

Current through June 25, 2024
Note: Words appearing in brackets "[ ]" may be
					 substituted for the appropriate state agency reference.
APPLICABLE LAW
The contract shall be governed by and construed in
					 accordance with the laws of the State of Mississippi, excluding its conflicts
					 of laws, provisions, and any litigation with respect thereto shall be brought
					 in the courts of the State. Contractor shall comply with applicable federal,
					 state, and local laws and regulations.
(The following clause, or one substantially
					 similar, shall be required in multi-term contractual agreements
					 only.)
AVAILABILITY OF FUNDS
It is expressly understood and agreed that the obligation
					 of the
[State]
to proceed under this agreement is conditioned
					 upon the appropriation of funds by the Mississippi State Legislature and the
					 receipt of state and/or federal funds. If the funds anticipated for the
					 continuing fulfillment of the agreement are, at any time, not forthcoming or
					 insufficient, either through the failure of the federal government to provide
					 funds or of the State of Mississippi to appropriate funds or the discontinuance
					 or material alteration of the program under which funds were provided or if
					 funds are not otherwise available to the
[State]
, the
[State]
shall have the right upon ten (10) working days
					 written notice to Contractor, to terminate this agreement without damage,
					 penalty, cost or expenses to the
[State]
of any kind
					 whatsoever. The effective date of termination shall be as specified in the
					 notice of termination.
REPRESENTATION REGARDING CONTINGENT FEES
Contractor represents that it has not retained a person to
					 solicit or secure a state contract upon an agreement or understanding for a
					 commission, percentage, brokerage, or contingent fee, except as disclosed in
					 Contractor's bid or proposal.
REPRESENTATION REGARDING GRATUITIES
The bidder, offeror, or Contractor represents that it has
					 not violated, is not violating, and promises that it will not violate the
					 prohibition against gratuities set forth in Section 6-204 (Gratuities) of the
Mississippi Personal Service Contract Review Board Rules and
					 Regulations
.
PROCUREMENT REGULATIONS
The contract shall be governed by the applicable
					 provisions of the
Mississippi Personal Service Contract Review Board
					 Rules and Regulations
, a copy of which is available at 210 East
					 Capitol,
Suite 800, Jackson, Mississippi 39201 for inspection, or
					 downloadable at
http://www.mspb.ms.gov
.
TRADE SECRETS, COMMERCIAL AND FINANCIAL
					 INFORMATION
It is expressly understood that Mississippi law requires
					 that the provisions of this contract which contain the commodities purchased or
					 the personal or professional services provided, the price to be paid, and the
					 term of the contract shall not be deemed to be a trade secret or confidential
					 commercial or financial information and shall be available for examination,
					 copying, or reproduction.
COMPLIANCE WITH LAWS
Contractor understands that the [State] is an equal
					 opportunity employer and therefore, maintains a policy which prohibits unlawful
					 discrimination based on race, color, creed, sex, age, national origin, physical
					 handicap, disability, genetic information, or any other consideration made
					 unlawful by federal, state, or local laws. All such discrimination is unlawful
					 and Contractor agrees during the term of the agreement that Contractor will
					 strictly adhere to this policy in its employment practices and provision of
					 services. Contractor shall comply with, and all activities under this agreement
					 shall be subject to, all applicable federal, State of Mississippi, and local
					 laws and regulations, as now existing and as may be amended or modified.
(
Language substantially similar to the following
					 clause shall be inserted in all Mississippi contracts requiring PSCRB
					 approval.
)
STOP WORK ORDER
(1)
Order to Stop Work:
The Procurement
					 Officer, may, by written order to Contractor at any time, and without notice to
					 any surety, require Contractor to stop all or any part of the work called for
					 by this contract. This order shall be for a specified period not exceeding 90
					 days after the order is delivered to Contractor, unless the parties agree to
					 any further period. Any such order shall be identified specifically as a stop
					 work order issued pursuant to this clause. Upon receipt of such an order,
					 Contractor shall forthwith comply with its terms and take all reasonable steps
					 to minimize the occurrence of costs allocable to the work covered by the order
					 during the period of work stoppage. Before the stop work order expires, or
					 within any further period to which the parties shall have agreed, the
					 Procurement Officer shall either:
(a) cancel the stop work order; or,
(b) terminate the work covered by such order as provided
					 in the Termination for Default clause or the Termination for Convenience clause
					 of this contract.
(2)
Cancellation or Expiration of the
					 Order:
If a stop work order issued under this clause is canceled at
					 any time during the period specified in the order, or if the period of the
					 order or any extension thereof expires, Contractor shall have the right to
					 resume work. An appropriate adjustment shall be made in the delivery schedule
					 or Contractor price, or both, and the contract shall be modified in writing
					 accordingly, if:
(a) the stop work order results in an increase in the time
					 required for, or in Contractor's cost properly allocable to, the performance of
					 any part of this contract; and,
(b) Contractor asserts a claim for such an adjustment
					 within 30 days after the end of the period of work stoppage; provided that, if
					 the Procurement Officer decides that the facts justify such action, any such
					 claim asserted may be received and acted upon at any time prior to final
					 payment under this contract.
(3)
Termination of Stopped Work:
If a
					 stop work order is not canceled and the work covered by such order is
					 terminated for default or convenience, the reasonable costs resulting from the
					 stop work order shall be allowed by adjustment or otherwise.
(4)
Adjustments of Price:
Any adjustment
					 in contract price made pursuant to this clause shall be determined in
					 accordance with the Price Adjustment clause of this contract.
E-PAYMENT
Contractor agrees to accept all payments in United States
					 currency via the State of Mississippi's electronic payment and remittance
					 vehicle. The agency agrees to make payment in accordance with Mississippi law
					 on "Timely Payments for Purchases by Public Bodies," which generally provides
					 for payment of undisputed amounts by the agency within forty-five (45) days of
					 receipt of invoice. Mississippi Code Annotated §
										31-7-305.
E-VERIFICATION
If applicable, Contractor represents and warrants that it
					 will ensure its compliance with the Mississippi Employment Protection Act of
					 2008, and will register and participate in the status verification system for
					 all newly hired employees. Mississippi Code Annotated §§
										71-11-1
et seq
. The term "employee" as used herein means any person
					 that is hired to perform work within the State of Mississippi. As used herein,
					 "status verification system" means the Illegal Immigration Reform and
					 Immigration Responsibility Act of 1996 that is operated by the United States
					 Department of Homeland Security, also known as the E-Verify Program, or any
					 other successor electronic verification system replacing the E-Verify Program.
					 Contractor agrees to maintain records of such compliance. Upon request of the
					 State and after approval of the Social Security Administration or Department of
					 Homeland Security when required, Contractor agrees to provide a copy of each
					 such verification. Contractor further represents and warrants that any person
					 assigned to perform services hereafter meets the employment eligibility
					 requirements of all immigration laws. The breach of this agreement may subject
					 Contractor to the following:
(1) termination of this contract for services and
					 ineligibility for any state or public contract in Mississippi for up to three
					 (3) years with notice of such cancellation/termination being made public;
(2) the loss of any license, permit, certification or
					 other document granted to Contractor by an agency, department or governmental
					 entity for the right to do business in Mississippi for up to one (1) year;
					 or,
(3) both. In the event of such cancellation/termination,
					 Contractor would also be liable for any additional costs incurred by the State
					 due to Contract cancellation or loss of license or permit to do business in the
					 State.
TRANSPARENCY
This contract, including any accompanying exhibits,
					 attachments, and appendices, is subject to the "Mississippi Public Records Act
					 of 1983," and its exceptions. See Mississippi Code Annotated §§
										25-61-1
et seq.
and Mississippi Code Annotated §
										79-23-1.
					 In addition, this contract is subject to the provisions of the Mississippi
					 Accountability and Transparency Act of 2008. Mississippi Code Annotated
					 §§
										27-104-151
et seq
. Unless exempted from disclosure due to a court-issued
					 protective order, a copy of this executed contract is required to be posted to
					 the Department of Finance and Administration's independent agency contract
					 website for public access at
http://www.transparency.mississippi.gov
.
					 Information identified by Contractor as trade secrets, or other proprietary
					 information, including confidential vendor information or any other information
					 which is required confidential by state or federal law or outside the
					 applicable freedom of information statutes, will be redacted.
Contracts, except those for contract workers paid
					 in SPAHRS or for Contractors exempted from this rule, must include the
					 following language:
PAYMODE
Payments by state agencies using the State's accounting
					 system shall be made and remittance information provided electronically as
					 directed by the State. These payments shall be deposited into the bank account
					 of Contractor's choice. The State may, at its sole discretion, require
					 Contractor to electronically submit invoices and supporting documentation at
					 any time during the term of this Agreement. Contractor understands and agrees
					 that the State is exempt from the payment of taxes. All payments shall be in
					 United States currency.
TERMINATION FOR CONVENIENCE
(1)
Termination
. The Agency Head or
					 designee may, when the interests of the State so require, terminate this
					 contract in whole or in part, for the convenience of the State. The Agency Head
					 or designee shall give written notice of the termination to Contractor
					 specifying the part of the contract terminated and when termination becomes
					 effective.
(2)
Contractor's Obligations
. Contractor
					 shall incur no further obligations in connection with the terminated work and
					 on the date set in the notice of termination Contractor will stop work to the
					 extent specified. Contractor shall also terminate outstanding orders and
					 subcontracts as they relate to the terminated work. Contractor shall settle the
					 liabilities and claims arising out of the termination of subcontracts and
					 orders connected with the terminated work. The Agency Head or designee may
					 direct Contractor to assign Contractor's right, title, and interest under
					 terminated orders or subcontracts to the State. Contractor must still complete
					 the work not terminated by the notice of termination and may incur obligations
					 as are necessary to do so.
TERMINATION FOR DEFAULT
(1)
Default
. If 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, or otherwise fails to timely satisfy the contract
					 provisions, or commits any other substantial breach of this contract, the
					 Agency Head or designee may notify Contractor in writing of the delay or
					 nonperformance and if not cured in ten (10) days or any longer time specified
					 in writing by the Agency Head or designee, such officer may terminate
					 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 Head or designee may procure
					 similar supplies or services in a manner and upon terms deemed appropriate by
					 the Agency Head or designee. 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 procurement
					 officer, Contractor shall take timely, reasonable, and necessary action to
					 protect and preserve property in the possession of Contractor in which the
					 State has an interest.
(3)
Compensation
. Payment for completed
					 services delivered and accepted by the State shall be at the contract price.
					 The State may withhold from amounts due Contractor such sums as the Agency Head
					 or designee 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 Nonperformance or Delayed
					 Performance
. Except with respect to defaults of subcontractors,
					 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 Contractor
					 to make progress in the prosecution of the work hereunder which endangers such
					 performance) if Contractor has notified the Agency Head or designee 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, Contractor shall
					 not be deemed to be in default, unless the services to be furnished by the
					 subcontractor were reasonably obtainable from other sources in sufficient time
					 to permit Contractor to meet the contract requirements. Upon request of
					 Contractor, the Agency Head or designee 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, 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 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 Paragraph (4) (Excuse for Nonperformance 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.
(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.
TERMINATION UPON BANKRUPTCY
This contract may be terminated in whole or in part by
[agency]
upon written notice to Contractor, if Contractor
					 should become the subject of bankruptcy or receivership proceedings, whether
					 voluntary or involuntary, or upon the execution by Contractor of an assignment
					 for the benefit of its creditors. In the event of such termination, Contractor
					 shall be entitled to recover just and equitable compensation for satisfactory
					 work performed under this contract, but in no case shall said compensation
					 exceed the total contract price.