Mississippi Administrative Code › Title 12 - Finance and Administration › Part 9 - Office of Personal Service Contract Review Rules and Regulations › APPENDICES › Appendix 12-9-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.
APPROVAL CLAUSE
It is understood that if this contract requires approval by
				  the Public Procurement Review Board and/or the Mississippi Department of
				  Finance and Administration Office of Personal Service Contract Review and this
				  contract is not approved by the PPRB and/or OPSCR, it is void and no payment
				  shall be made hereunder.
(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 Public Procurement Review Board Office of Personal Service
				  Contract Review Rules and Regulations.
PROCUREMENT REGULATIONS
The contract shall be governed by the applicable provisions
				  of the
Mississippi Public Procurement Review Board Office of Personal
				  Service Contract Review Rules and Regulations,
a copy of which is
				  available at 501 North West Street, Suite 701E, Jackson, Mississippi 39201 for
				  inspection, or downloadable at
http://www.DFA.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 requiringPPRB
				  approval.)
STOP WORK ORDER
(1)
Order to Stop Work:
The Chief
				  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 Chief 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
				  Chief 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 §
									31-7-301
et seq..
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 Chief
				  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.