1 Colo. Code Regs. § 101-1-3-3

Current through Register Vol. 48, No. 1, January 10, 2025

Rule 1 CCR 101-1-3-3 - STATE CONTRACTS

1.AUTHORITY

Article V, Section 33, Constitution of Colorado - Disbursement of public money

Article XI, Section 1, Constitution of Colorado - Pledging credit of state, county, city, town or school district forbidden

Article XII, Section 13, Constitution of Colorado - State personnel system - merit system

Governor's Executive Order signed April 7, 1978 (Authority to Sign Contracts, Deeds, and Leases)

Governor's Executive Order D 016 07 - Improving State Information Technology Management

State of Colorado Procurement Rules - 1 CCR 101-9

§2-2-320(2), C.R.S. (Legislative Contracts Approval)

§4-1-101, et seq., C.R.S. (Uniform Commercial Code)

§24-2-102(4), C.R.S. (Appointment of Officers and Employees)

§24-17-201, et seq., C.R.S. (State Contingency-based Contracts)

§24-30-202, C.R.S. (State Controller Authority)

§24-30-1104(1)(h), C.R.S. (Central Services Approval Authority)

§24-30-1107, C.R.S. (Central Services Approval authority)

§24-30-1303(1)(a) and (d), C.R.S. (Office of State Architect Approval Authority)

§24-30-1404(4), C.R.S. (Prohibition against Contingency Fees)

§24-30-2001, et seq., C.R.S. (Utility Cost-savings Measures)

§24-31-101(1)(c), C.R.S. (State Attorney General Powers and Duties)

§24-34-101, et seq., C.R.S. (Department of Regulatory Agencies)

§24-37.5-101, et seq., C.R.S. (Office of Information Technology)

§24-50-135, C.R.S. (Exemptions from Personnel System)

§24-50-501, et seq., C.R.S. (Contracts for Personal Services)

§ 24-75-302, C.R.S. (Capital Construction Fund)

§24-101-101, et seq., C.R.S. (Procurement Code)

§§33-1-105 and 105.5, C.R.S. (Acquisition of Property - Parks and Wildlife Commission)

§33-10-107, C.R.S. (Acquisition of Property - Parks and Wildlife Commission)

2.DEFINITIONS

The following definitions include terms used in this Fiscal Rule as well as various types of Agreements entered into by State Agencies and Institutions of Higher Education.

2.1. Agreement - A legal agreement between a State Agency or Institution of Higher Education and another individual or entity that may or may not constitute a State Contract under this Fiscal Rule.

2.2. Capital Construction - A Capital Construction Project or Controlled Maintenance Project funded wholly or in part by the State Capital Construction Fund (§24-75-302, C.R.S.) or wholly or in part with any cash resources of a State Agency or Institution of Higher Education. See Fiscal Rule 4-2 (Capital Construction Projects).

2.3. Central Approvers - Certain division directors, executive directors of State Agencies, and Elective Officers, or their respective delegates, whose prior approval is required by statute or Fiscal Rule for certain types of State Contracts. Central approvers include, without limitation, the State Personnel Director, defined in Fiscal Rule 3-1 (Commitment Vouchers), the State Architect, the Director of the Real Estate Programs, the State Communications Director, the State Attorney General, the Director of the Division of Central Services, the State Risk Manager, and the State's Chief Information Officer and Executive Director of the Governor's Office of Information Technology.

2.4. Central Services Contract - A State Contract between a State Agency or Institution of Higher Education and another Party for the acquisition of services, services related to equipment, and software related to services. Centralized services include, without limitation, motor pool operation, motor vehicle maintenance, mail or messenger services, office copying, graphic design for print media, printing and binding, microfilming, or design of forms. See § 24-30-1104, C.R.S.

2.5. Chief Information Officer - See §24-35.7-102(3), C.R.S.

2.6. Contingency-Based Contract - A State Contract for services between a State Agency or Institution of Higher Education and a contractor where all or part of the contractor's compensation is computed by multiplying a stated percentage by the measurable savings in the State Agency's or Institution of Higher Education's expenditures or costs of operation attributable to the contractor's services under the State Contract. The term "Contingency-Based Contract" does not include State Contracts where the contingency-based compensation is specifically authorized by statute, as described in § 24-17-203, C.R.S, including State Contracts where the contractor collects a debt on behalf of the State Agency or Institution of Higher Education and receives a portion of those amounts collected as payment. Contingent fees are prohibited in Professional Services Contracts. See § 24-30-1404(4), C.R.S.

2.7. Contract - See Fiscal Rule 3-1, §2.5

2.8. Debt Contract - A State Contract in which the State receives money from a lender and agrees to repay the money to the lender, including the payment of any interest due. All Debt Contracts must comply with the requirements of the Taxpayer Bill of Rights. Examples of Debt Contracts include Agreements for short-term debt, notes, and bonds.

2.9. Delegated State Agency or Delegated Institution of Higher Education - A State Agency or Institution of Higher Education whose controller has been granted delegated signature authority by the State Controller.

2.10. Employee Voluntary Separation Agreement - An Agreement between a State Agency or Institution of Higher Education and a State employee setting forth the terms of the employee's voluntary separation from State employment.

2.11. Expenditure Contract - A State Contract where a State Agency or Institution of Higher Education is required to make a payment, either in funds or in-kind, to another Party, directly or indirectly, and includes any Agreements that divert revenue that would otherwise be due to the State. An Agreement where the State is required to perform a service for another Party is an Expenditure Contract if it is likely that the State's failure to perform would result in the payment of State funds to the other Party.

2.12. Franchise Agreement - An agreement where a State Agency or Institution of Higher Education grants to another Party a concession or right to provide goods or services in a particular market or geographical area controlled by the State, such as concession stands, hotels, and other services provided in certain State parks. The State Agency or Institution of Higher Education may regulate service level, quality, and price, but users of the service pay the other Party directly and the other Party provides the goods or services and exercises control over other management decisions. For the purposes of this Fiscal Rule, an Agreement by a State Agency or Institution of Higher Education to buy a franchise from another Party is an Expenditure Contract, not a Franchise Agreement.

2.13. Fund Management Services Agreement - A State Contract for professional consulting services regarding the management of State funds.

2.14. Goods Contract - A State Contract between a State Agency or Institution of Higher Education and another Party for the purchase of goods. The term "goods" includes commodities, supplies, and products as such terms are used in the State Procurement Code, the Procurement Rules), and Uniform Commercial Code (§ 4-2-105, C.R.S.).

2.15. Information Technology Contract - A State Contract between a State Agency or Institution of Higher Education and another Party, where the other Party provides information technology services or products and services. An Information Technology Contract is a type of personal services contract. See § 24-37.5-102(12), C.R.S. and the State Controller Contract, Grant, and Purchase Order Policies regarding Information Technology Contracts for a description of information technology products and services.

2.16. Intergovernmental Contract - An Agreement between a State Agency or Institution of Higher Education and a political subdivision of the State, another state, a political subdivision or public Institution of Higher Education of another state, or an agency of the Federal government. An Intergovernmental Contract may be an Expenditure Contract or a Non-Expenditure Contract.

2.17. Investment Advisory Services Agreement - A State Contract for professional consulting services regarding securities and investments.

2.18. License - A grant by the owner of rights in real or personal property to another of a personal privilege to use such property, without the transfer of the underlying ownership interest therein.

2.19. Loan Agreement - An Agreement between a State Agency or Institution of Higher Education and another Party, where the State Agency or Institution of Higher Education agrees to loan funds to such other Party.

2.20. Main Task Order Contract - A contract that does not specify an amount and provides for the issuance of Task Orders for the performance of tasks during the period of the Main Task Order Contract.

2.21. Major Information Technology Project - See Fiscal Rule 3-1 (Commitment Vouchers). See § 24-37.5-102(19), C.R.S.

2.22. Modification Policies - the State Controller Contract, Grant, and Purchase Order Policies related to the modification of State Contracts.

2.23. Non-Expenditure Contract - An Agreement between a State Agency or Institution of Higher Education and another Party involving an exchange of resources, goods, or services, that does not result in the expenditure of funds by the State Agency or Institution of Higher Education or that is a Revenue Contract, and the likely result of a failure to perform by the State Agency or Institution of Higher Education would not result in the expenditure of State funds.

2.24. Outsource Contract-Third Party Payor - A State Contract between a State Agency or Institution of Higher Education and another Party for personal services, where the State Agency or Institution of Higher Education:

2.24.1. Is charged with providing the function or services that are the subject matter of the Outsource Contract to members of the public;

2.24.2. Delegates performance of all or a part of the function or service to the other Party, but does not dictate the Party's operations beyond providing limited input regarding the Party's performance of its obligation; and

2.24.3. Mandates that members of the public, and not the State Agency or Institution of Higher Education, are responsible for paying the other Party to perform the function or service; for example, where an applicant seeking a license or certification from the State pays the other Party for providing testing services that are required as a prerequisite to the grant of such license or certification.

2.25. Party - See Fiscal Rule 3-1 (Commitment Vouchers).

2.26. Personal Property Lease or License Agreement - A State Contract between a State Agency or Institution of Higher Education, as lessee or licensee, and the owner of personal property, as lessor or licensor, where the State Agency or Institution of Higher Education pays the lessor for the right to use such personal property for the term of the lease or license. See the State Controller Contract, Grant, and Purchase Order Policies.

2.27. Price Agreement - A State Contract between the Department of Personnel & Administration, State Purchasing and Contracts Office, and a contractor, which allows State Agencies and Institutions of Higher Education to order goods or services from the contractor, pursuant to the terms of the price agreement, by issuing a Purchase Order, Task Order, or other approved order form.

2.28. Professional Services Contract - A State Contract between a State Agency or Institution of Higher Education and another Party for the performance of any of the following services: architectural, engineering, land surveying, industrial hygienist, and landscape architect, as defined in § 24-30-1402, C.R.S.

2.29. Real Property Lease/License Agreement - An Agreement between a State Agency or Institution of Higher Education and another Party, where the State Agency or Institution of Higher Education:

2.29.1. As landlord or licensor, owns the real property subject to the Real Property Lease/License Agreement and gives the other Party to the Real Property Lease/License Agreement, as tenant, the right of possession of such property for the term of the Real Property Lease/License Agreement; or

2.29.2. As tenant or licensee, obtains the right of possession of the real property subject to the Real Property Lease/License Agreement from the owner of such property, as landlord or licensor, for the term or the Real Property Lease/License Agreement.

2.30. Real Property Purchase Agreement - An Agreement for the purchase of an interest in land (fee title or lesser interests) and improvements to land, such as buildings and other structures.

2.31. Revenue Contract - An Agreement between a State Agency or Institution of Higher Education and another Party where cash or property or both are paid to the State, resulting in revenue recognition, which does not require the expenditure of State funds or create a financial obligation to the other Party on the part of the State Agency or Institution of Higher Education.

2.32. Reviewing Attorney - An assistant attorney general, special assistant attorney general or other attorney authorized by the State Attorney General and employed by a State Agency or Institution of Higher Education, who has received a written designation as a Reviewing Attorney from the State Controller. A written designation from the State Controller is personal to the Reviewing Attorney and may not be assigned or further delegated. The designation is limited to the specific responsibilities and authority set forth in the written designation and may be terminated or modified at any time at the sole discretion of the State Controller.

2.33. Sale of Securities - The offer, issuance or sale of securities by the State of Colorado or any State Agency or Institution of Higher Education. Securities may include certain Debt Contracts.

2.34. Settlement Agreement - A State Contract between a State Agency or Institution of Higher Education and another Party for the purpose of ratifying agreements concerning employment, contractual, or legal disputes, where a State Agency or Institution of Higher Education is required to make a payment, either in funds or in-kind, to the other Party, directly or indirectly, and includes any agreement that diverts revenue that would otherwise be due to the State, requires the State to forgo the right to receive funds, property or services, or obligates the State to perform a service for another Party, where failure to perform such service would result in payment of State funds to the other Party.

2.35. Sponsored Project Agreement - A State Contract between an Institution of Higher Education and another Party, where the Institution of Higher Education receives or expends funding for use in connection with oversight responsibilities for research and development or other specified programmatic activities sponsored by Federal, state, or local governments, or private agencies or organizations.

2.36. State Contract - A Commitment Voucher between a State Agency and/or Institution of Higher Education and another Party to acquire supplies, services, or construction, to lease supplies or real property or to dispose of supplies for the direct benefit of the State, and that does not include Small Purchase Documentation, Purchase Orders, Grant Agreements, or Small Dollar Grant Awards, each as described in Fiscal Rule 3-1 (Commitment Vouchers). Interagency Agreements, as described in Fiscal Rule 3-5 (Interagency Agreements) are not State Contracts because they are not Commitment Vouchers.

2.37. Task Order - An agreement used to define, authorize, and encumber funds for a project under a Main Task Order Contract. A Task Order must include: a project description that states the final deliverables; the maximum amount to be paid for the project that reflects costs (e.g., hourly rates) consistent with the Main Task Order Contract; and the performance period for the project.

2.38. Utility Cost-Savings Contract - An energy performance State Contract, shared-savings State Contract, or other State Contract in which utility cost savings are used to pay for services or equipment. See § 24-30-2001(6), C.R.S.

3.CATEGORIES OF STATE CONTRACTS

The following categories provide examples of different types of State Contracts, but are not all inclusive and any State Contract may combine any two or more of these types.

3.1. Expenditure Contracts

3.1.1. Capital Construction Contracts;

3.1.2. Central Services Contracts;

3.1.3. Contingency-Based Contracts;

3.1.4. Employee Voluntary Separation Agreements;

3.1.5. Fund Management Services Agreements;

3.1.6. Goods Contracts;

3.1.7. Information Technology Contracts;

3.1.8. Intergovernmental Agreements - State has a financial obligation;

3.1.9. Investment Advisory Services Agreements;

3.1.10. Outsource Contracts-Third Party Payor;

3.1.11. Personal Property Leases/Licenses - State as lessee or licensee;

3.1.12. Professional Services Contracts;

3.1.13. Real Property Leases/ Licenses - State as tenant or licensee;

3.1.14. Real Property Purchase Agreements - State as buyer; and

3.1.15. Settlement Agreements.

3.2. Revenue Agreements

3.2.1. Franchise Agreements;

3.2.2. Real Property Leases/Licenses - State as landlord or licensor; and

3.2.3. Real Property Purchase Agreements - State as seller.

3.3. Other Agreement Types

3.3.1. Debt Contracts - State as borrower;

3.3.2. Intergovernmental Agreements - State has no financial obligation

3.3.3. Loan Contracts - State as lender;

3.3.4. Non-Expenditure Contracts other than Revenue Contracts;

3.3.5. Price Agreements;

3.3.6. Sale of Securities Agreements;

3.3.7. Sponsored Project Agreements; and

3.3.8. Utility Cost-Savings Contracts.

4.RULE

4.1. Each State Agency or Institution of Higher Education shall use a State Contract as described in this Rule when Fiscal Rule 3-1 (Commitment Vouchers) requires the use of a State Contract as the Commitment Voucher.

5.CONTENT OF STATE CONTRACTS

5.1. Expenditure Contracts and Other Contract Types that result in an expenditure of State funds, including Debt Contracts and Price Agreements - The general provisions of this subsection shall apply to all State Contracts that result in an expenditure of State funds or the disposition of State property, except as limited or excluded in the specific subsections covering:

(a) real property purchases (State as buyer), leases (State as tenant), and licenses (State as licensee) and (b) Settlement Agreements and Employee Voluntary Separation Agreements. See the State Controller Contract, Grant, and Purchase Order Policies.

5.1.1. The following provisions shall be included in (a) Expenditure Contracts, (b) Debt Contracts, and (c) Price Agreements:

5.1.1.1. Identification of the State Agency or Institution of Higher Education and the other Party or Parties;

5.1.1.2. Statutory authority (except for Institutions of Higher Education);

5.1.1.3. Statement of work;

5.1.1.4. Payment Terms, as defined in Fiscal Rule 2-3, including maximum dollar amount;

5.1.1.5. Effective date and termination date of the State Contract;

5.1.1.6. General terms and conditions;

5.1.1.7. Special Provisions (see §13 of this Fiscal Rule);

5.1.1.8. Signature and cover page(s) as described in the State Controller Contract, Grant, and Purchase Order Policies; and

5.1.1.9. Statement that the Contract shall not be valid until it has been approved by the State Controller or delegate.

5.1.1.9.1. If the Contract is for a Major Information Technology Project, then a statement that the Contract shall not be valid until it has been approved by the State's Chief Information Officer or delegate.

5.1.2. Real Property Purchase Agreements (State as buyer), Leases (State as tenant) and Licenses (State as licensee) - State Contracts for the purchase, lease or license of real property shall contain the following provisions:

5.1.2.1. Identification of the parties;

5.1.2.2. Statutory authority (except for Institutions of Higher Education);

5.1.2.3. A description of the property and any services or allowances included with the lease;

5.1.2.4. Payment Terms, defined in Fiscal Rule 2-3 (Payment Terms) including maximum dollar amount;

5.1.2.5. The effective date and termination date of the State Contract;

5.1.2.6. General terms and conditions;

5.1.2.7. If a State Agency or Institution of Higher Education is the buyer, tenant or licensee, the State Contract shall include the following Special Provisions:

5.1.2.7.1. State Controller's Approval;

5.1.2.7.2. Funds Availability;

5.1.2.7.3. Governmental Immunity;

5.1.2.7.4. Compliance with Law; and

5.1.2.7.5. Vendor Offset and Erroneous Payments.

5.1.2.8. If a State Agency or Institution of Higher Education is the buyer, tenant, or licensee, the State Contract may include the other Special Provisions, at the discretion of the State Agency or Institution of Higher Education.

5.1.2.9. If a State Agency or Institution of Higher Education is the tenant or licensee, the State Contract shall include provisions specifying cancellation rights, if the real property leased or licensed is destroyed by fire and/or becomes subject to eminent domain;

5.1.2.10. A State Agency or Institution of Higher Education shall not be in holdover after the expiration of a Real Property Lease for a period of longer than 6 months without the prior approval of the Office of the State Architect; and

5.1.2.11. Statement that the State Contract shall not be valid until it has been approved by the State Controller or delegate.

5.1.3. Capital Construction Contracts - See Fiscal Rule 4-2, (Capital Construction Projects). See also approved State Contract forms, available on the website of the Office of the State Architect.

5.1.4. Settlement Agreements and Employee Voluntary Separation Agreements - See the State Controller Contract, Grant, and Purchase Order Policies.

5.1.5. Intergovernmental Contracts

5.1.5.1. Federal Government Contracts - All intergovernmental State Contracts with any agency of the Federal government shall be reviewed by the Office of the State Controller or a Reviewing Attorney except as described in the State Controller Contract, Grant, and Purchase Order Policies.

5.1.5.2. Sponsored Project Agreements - see the State Controller Contract, Grant, and Purchase Order Policies regarding sponsored projects.

5.2. Revenue Contracts and Other Contract Types that do not result in an expenditure of State funds - The general provisions of this subsection shall apply to all State Contracts that do not result in either an expenditure of State funds or in the disposition of State property, but that still create a performance obligation for the State where failure to perform such obligation would result in payment of State funds to another Party.

5.2.1. The following provisions shall be included in all Revenue Contracts and all Other Contract Types that are described in §5.2 but not included in §5.1 of this Fiscal Rule:

5.2.1.1. Identification of the State Agency or Institution of Higher Education and the other Party or Parties;

5.2.1.2. Payment terms, if any payment will be made to the State;

5.2.1.3. A description of any work the State must perform or obligations the State must fulfill in order to comply with the State Contract or to earn any payments under the State Contract; and

5.2.1.4. The effective date and termination date of the State Contract.

6.APPROVED STATE CONTRACT FORMS

All Expenditure Contracts shall be in a form approved by the State Controller. The State Controller has approved the following contract forms and may approve additional forms in the State Controller's sole discretion.

6.1. Capital Construction Contracts - See Fiscal Rule 4-1 (Capital Construction Administration). See also approved contract forms available on the website of the Office of the State Architect.

6.2. Model Contracts - State Agencies and Institutions of Higher Education shall use the model contract forms as described in the State Controller Contract, Grant, and Purchase Order Policies.

6.3. Contract Amendments - All modifications to a State Contract shall be made by a formal written amendment signed by the State Agency or Institution of Higher Education and the other Party or Parties to the State Contract and approved by the State Controller or a delegate of the State Controller, unless an alternative modification tool has been approved by the State Controller. A State Contract cannot be amended or extended (revived) after the State Contract term has expired. A form of contract amendment and forms of alternative modification tools are set forth in the Modification Policies.

6.4. Alternative Modification Tools and Forms - A State Agency or Institution of Higher Education may use an approved alternate modification tool to modify a State Contract in lieu of a contract amendment only in the specific circumstances identified in the Modification Policies. A State Agency or Institution of Higher Education shall obtain written approval from the Office of the State Controller prior to making a change to the form of an alternative modification tool or using an alternative modification tool in a manner not described in the Modification Policies. A State Contract cannot be modified or extended after the expiration of the term of the State Contract. Approved alternative modification tool forms are set forth in the Modification Policies.

6.4.1. Required Provision and Attachment - An approved modification tool may be included as a part of a State Contract only if the State Contract contains a provision referencing the specific modification tool, in the form set forth in the Modification Policies, and the form of the specific modification tool is attached as an exhibit to the State Contract.

6.4.2. Each contract modification tool was created for use in connection with specific types of State Contracts and scopes of services and is not universally applicable. Each modification tool shall be used only for its intended purposes, as set forth in the Modification Policies, and shall not be changed or combined with any other contract modification tool except as specifically allowed in the Modification Policies.

6.5. Real Property Lease Agreements - Lease Agreements involving real property shall be in a form approved by and set forth on the website of the Office of the State Architect, except for Real Property leases exempted by statute, and Real Property leases where the Department of Personnel & Administration is a party, which may be in any form approved by the State Controller.

6.6. Special Provisions - All State (a) Expenditure Contracts, (b) Debt Contracts, and (c) Price Agreements, shall contain the State Special Provisions. See §13 of this Fiscal Rule. No modification shall be made to a Special Provision without the prior written approval of the Office of the State Controller and, in the case of the Choice of Law Special Provision, a Reviewing Attorney, except as otherwise expressly provided in subsection 5.1.2.8 of this Fiscal Rule.

6.7. Other Contract Forms - Any other contract form which may be approved by the State Controller from time-to-time.

7. STATE CONTRACT LEGAL REVIEW

The State Controller may request the Office of the State Attorney General to review any State Contract at the State Controller's discretion.

8.STATE CONTROLLER REVIEW AND APPROVAL

State Controller review and approval of all Expenditure Contracts, Task Order Contracts, and Price Agreements is mandatory. The Office of the State Controller may, in its discretion, review other types of contracts, for example, non-expenditure contracts, if requested by a State Agency or Institution of Higher Education. All State Controller reviews and approvals shall be conducted in accordance with the provisions of this §8.

8.1. Outsource Contracts - Third Party Payor - All Outsource Contracts shall be submitted to the State Controller or delegate for review and approval, including without limitation, any Outsource Contracts that divert revenues due to the State, unless specifically exempted by State statute. For example, see § 24-34-101, C.R.S.

8.2. Performance of State Controller Functions

8.2.1. Delegated State Agencies - Delegated State Agencies shall be responsible for determining the level of risk for their State Contracts. A Delegated State Agency shall classify the risk of each of its State Contracts in accordance with the State Controller Contract, Grant, and Purchase Order Policies regarding review and approval for delegated State Agencies. The individual or individuals at the Delegated State Agency who have a delegation from the State Controller to sign State Contracts may sign State Contracts on behalf of the State Controller that are not required to be sent to the Office of the State Controller in accordance with their delegation agreement and the State Controller Contract, Grant, and Purchase Order Policies.

8.2.2. Non-delegated State Agencies and Institutions of Higher Education - Non-delegated State Agencies and non-delegated Institutions of Higher Education shall submit all State Contracts to the Office of the State Controller for review and approval in accordance with the State Controller Contract, Grant, and Purchase Order Policies regarding review and approval of non-delegated State Agencies and Institutions of Higher Education.

8.2.3. Delegated Institutions of Higher Education - Delegated Institutions of Higher Education shall determine if a State Contract requires legal review prior to execution in accordance with the State Controller Contract, Grant, and Purchase Order Policies regarding review and approval for Delegated Institutions of Higher Education. The individual or individuals at the Delegated Institution of Higher Education who have a delegation from the State Controller to sign State Contracts may sign State Contracts on behalf of the State Controller, that are not required to be sent to the Office of the State Controller and that either do not require legal review or have been signed by a Reviewing Attorney, in accordance with the Institution of Higher Education's delegation agreement and the State Controller Contract, Grant, and Purchase Order Policies.

8.3. Process for Review, Approval, and Signature

8.3.1. Review - The State Controller or delegate shall review all Expenditure Contracts to determine if the contract complies with Fiscal Rule 3-1 (Commitment Vouchers), §3.

8.3.2. Approval and Signature - After review, the State Controller or delegate shall approve or disapprove the State Contract. If approved, the State Controller or delegate shall evidence such approval by signing the State Contract.

8.4. Contracts Not Approved by State Controller

8.4.1. Not Binding - An Expenditure Contract is not binding on or enforceable against the State unless and until it is signed by the State Controller or delegate. An Information Technology Contract for a Major Information Technology Project is also not binding on or enforceable against the State unless and until it is signed by the State Controller or delegate and the State's Chief Information Officer or delegate.

8.4.2. Null and Void - Any Expenditure Contract disapproved by the State Controller or delegate is null and void.

8.4.3. Statutory Violation - Any obligation created under a contract that has not been signed by the State Controller or delegate or has been disapproved by the State Controller or delegate constitutes a Statutory Violation as described in Fiscal Rule 3-1 (Commitment Vouchers), §8. Any obligation created under an Information Technology Contract for a Major Information Technology Project that has not been signed by the State's Chief Information Officer or delegate constitutes a Statutory Violation as described in Fiscal Rule 3-1 (Commitment Vouchers), §8.

9.ACCOUNTING FOR STATE CONTRACTS

9.1. Encumbrances - All State Agencies and Institutions of Higher Education shall encumber Expenditure Contracts in accordance with Fiscal Rule 3-1 (Commitment Voucher) and the Fiscal Procedures Manual.

9.2. Outsource Contracts - Third Party Payor - State Agencies and Institutions of Higher Education shall record all gross revenues and expenditures for each Outsource Contract in the State Financial System or on an approved State Agency or Institution of Higher Education Financial System and shall not net the expenditures against the revenues, unless specifically authorized by State statute.

10.MONITORING OF STATE CONTRACTS

10.1. All State Agencies and Institutions of Higher Education shall designate a contract manager with subject matter expertise who will be responsible for day-to-day management of each State Contract. See § 24-106-107(3), C.R.S.

10.2. Each State Agency and Institution of Higher Education shall monitor its Expenditure Contracts and Other Contract Types that result in an expenditure of State funds with respect to all of the following elements, as well as any additional elements a State Agency or Institution of Higher Education may choose to monitor:

10.2.1. Compliance with requirements, standards, and measures of the Expenditure Contract provisions in §5.1 of this Fiscal Rule;

10.2.2. Completion of the State Contract according to the State Contract's performance schedule;

10.2.3. Satisfactory performance and completion of the State Contract's scope of work; and

10.2.4. Extent to which the contractor met or exceeded budgetary requirements of the State Contract

10.3. Contract Management System - State Agencies and Institutions of Higher Education shall include all information specified in § 24-106-103(3), C.R.S., for all State Contracts for personal services subject to that statute.

10.4. This §10 shall not apply to the following State Contracts:

10.4.1. Any State Contract under Medicare;

10.4.2. Any State Contract for indigent care under §25.5-3-101 et seq., C.R.S.;

10.4.3. Any State Contract under the Colorado Medical Assistance Act. See §25.5-4-101 through §25.5-6-101, et seq., C.R.S.;

10.4.4. Any State Contract under the Children's Basic Health Plan. See §25.5-8-101 et seq., C.R.S.; and

10.4.5. Any State Contract for sponsored projects

10.5. State Agencies and Institutions of Higher Education shall comply with all requirements of State Controller Contract, Grant, and Purchase Order Policies regarding monitoring of State Contracts.

11.INDEPENDENT CONTRACTOR RELATIONSHIP

State Agencies and Institutions of Higher Education shall take care in maintaining the distinctions between services performed by persons who are employees of the State and services performed by independent contractors, and their employees, agents and representatives, pursuant to a State Contract for personal services. The State's responsibilities and obligations with respect to employee/employer arrangements differ from its responsibilities and obligations with respect to independent contractors. The State may be liable to a third party for the actions of its employees, whereas independent contractors and their employees, agents and representatives are liable for their own actions. The State is responsible for social security taxes and benefits for its employees, whereas independent contractors are responsible for social security taxes and benefits of their employees. State Agencies and Institutions of Higher Education shall follow guidelines issued by the Internal Revenue Service, the Colorado Division of Human Resources, Colorado statutes, and opinions of the State Attorney General in determining whether an individual is an employee or independent contractor.

12.EXCEPTIONS TO FISCAL RULE 3-3

12.1. Personal Services - This Fiscal Rule does not apply to Commitment Vouchers for personal services paid through an authorized State payroll system, which are exempted from the State personnel system by the Colorado Constitution or Colorado statutes. See § 24-50-135, C.R.S. Examples of exempted Commitment Vouchers include advices of employment engaging the services of the following:

12.1.1. Appointees by Elective Officers and their administrative staffs;

12.1.2. Members of State boards or commissions;

12.1.3. Faculty and other exempted members of Institutions of Higher Education;

12.1.4. Attorneys-at-law serving as an assistant attorney generals; and

12.1.5. Employees of the Legislative and Judicial Departments of the State.

12.2. Elective Officers - An Elective Officer acting within the scope of that Elective Officer's authority may elect to exempt any Commitment Voucher from the requirements of either or both of § 24-30-202, C.R.S. including the Fiscal Rules, the Procurement Code and the Procurement Rules, by personally signing a State Contract or by having that person's next-in-command sign the State Contract. See § 24-2-102(4), C.R.S. If the contract signed by the Elective Officer is outside the scope of that Elective Officer's authority, the Elective Officer may be personally liable for all claims arising therefrom.

13.SPECIAL PROVISIONS

These Special Provisions apply to and shall be included in all State Contracts except where noted in italics.

1. STATUTORY APPROVAL. § 24-30-202(1) C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in § 24-37.5-102 (2.6), then this Contract shall not be valid until it has been approved by the State's Chief Information Officer or designee.

2. FUND AVAILABILITY. § 24-30-202 (5.5) C.R.S. Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.

3. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State's risk management statutes, §§ 24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes.

4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability, or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents.

5. COMPLIANCE WITH LAW. Contractor shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

6. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver.

7. PROHIBITED TERMS. Any term included in this Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor's liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of § 24-106-109 C.R.S.

8. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.

9. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§ 24-18-201 and 24-50-507 C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor's services and Contractor shall not employ any person having such known interests.

10. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§ 24-30-202 (1) and 24-30-202.4 C.R.S. [Not Applicable to intergovernmental agreements] The State Controller may withhold payment under the State's vendor offset intercept system for debts owed to state agencies for:

(a) unpaid child support debts or child support arrearages;

(b) unpaid balances of tax, accrued interest, or other charges specified in § 39-21-101, et seq. C.R.S.;

(c) unpaid loans due to the Student Loan Division of the Department of Higher Education;

(d) amounts required to be paid to the Unemployment Compensation Fund; and

(e) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State's discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State

11. PUBLIC CONTRACTS FOR SERVICES §§8-17.5-101, et seq., C.R.S.

Repealed by SB 21-199

1 CCR 101-1-3-3

41 CR 19, October 10, 2018, effective 11/1/2018

45 CR 11, June 10, 2022, effective 7/1/2022

46 CR 11, June 10, 2023, effective 7/1/2023

47 CR 08, April 25, 2024, effective 7/1/2024