Miss. Code. tit. 12, pt. 9, [Effective 9/6/2024] APPENDICES, app 12-9-E
The following clauses are available for use in solicitations issued pursuant to these rules and regulations and any resulting contracts. Some clauses are applicable to a solicitation document, others are applicable to a contract, while still others are applicable to both. Agency legal counsel is encouraged to review this Appendix to ensure the clauses used in a solicitation or contract best meet the needs of the Agency.
Any clauses which are not required may be modified as the Agency deems appropriate for their particular solicitation or contract. PPRB delegates to OPSCR staff the authority to grant exceptions to the required clauses on a case-by-case basis. A request for an exception shall be submitted in writing, explaining the reasons the Agency is requesting the exception and the considerations the Agency made to determine it is in the Agency's best interest that the exception be granted. The written request shall be signed by Agency legal counsel.
Any information in [brackets] shall be edited by the Agency as appropriate for the specific solicitation or contract. Required clauses are identified with an "X" on the right side of the page. Clauses which are not identified as required are optional for use at the Agency's sole discretion. The required clauses shall be included in contracts and solicitations as indicated below:
* IC:Contracts with Independent Contractors
* CW:Contracts with Contract Workers
* S:Solicitations (IFB, RFP, RFQ)
REQUIRED | |||
IC | CW | S | |
ACKNOWLEDGMENT OF AMENDMENTS [Bidders, Offerors, Applicants] shall acknowledge receipt of any amendment to the [IFB, RFP, RFQ, RFA] in writing. The acknowledgement shall be submitted [Agency shall specify the manner of submitting acknowledgements of amendments]. Each [bidder, offeror, applicant] shall submit a written acknowledgement of every amendment to the [Agency] on or before the submission deadline. | X | ||
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 Mississippi. | X | X | X |
APPROVAL It is understood that if this contract requires approval by the Public Procurement Review Board ("PPRB") and/or the Department of Finance and Administration Office of Personal Service Contract Review ("OPSCR"), and this contract is not approved by PPRB and/or OPSCR, it is void and no payment shall be made hereunder. | X | X | X |
ATTORNEYS' FEES AND EXPENSES In the event Contractor defaults on any obligations under this Agreement, Contractor shall pay to [Agency] all costs and expenses, without limitation, incurred by [Agency] in enforcing this Agreement or reasonably related to enforcing this Agreement. This includes but is not limited to investigative fees, court costs, and attorneys' fees. Under no circumstances shall [Agency] be obligated to pay attorneys' fees or legal costs to Contractor. | |||
AUTHORITY OF SIGNATORY Contractor acknowledges that the individual executing the contract on behalf of the [Agency] is doing so in his or her official capacity only. To the extent any provision contained in the contract exceeds the signatory's authority, Contractor agrees that it will not look to that individual in his or her personal capacity or otherwise seek to hold him or her individually liable for exceeding such authority. | |||
AUTHORITY TO CONTRACT Contractor warrants: (1) that it is a validly organized business with valid authority to enter into this agreement; (2) that it is qualified to do business and in good standing in the State of Mississippi; (3) that entry into and performance under this agreement is not restricted or prohibited by any loan, security, financing, contractual, or other agreement of any kind; and, (4) notwithstanding any other provision of this agreement to the contrary, that there are no existing legal proceedings or prospective legal proceedings, either voluntary or otherwise, which may adversely affect its ability to perform its obligations under this agreement. | |||
AVAILABILITY OF FUNDS It is expressly understood and agreed that the obligation of [Agency] to proceed under this agreement is conditioned upon the appropriation of funds by the Mississippi State Legislature and the receipt the appropriated funds. If the funds anticipated for the continuing time fulfillment of the agreement are, at any time, not forthcoming or insufficient, regardless of the source of funding, [Agency] shall have the right upon 10 business days written notice to Contractor, to terminate this agreement without damage, penalty, cost or expense to the [Agency] of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination. | X | X | X |
BID ACCEPTANCE PERIOD [clause is for receipt of physical bids, modify to receive electronic bids] The original and [number] copies of the bid form, [number] copies total, shall be signed and submitted in a sealed envelope or package to [place for receipt of bids] no later than [the time and date specified for receipt of bids]. Timely submission of the bid form is the responsibility of the bidder. The envelope or package shall be marked with the bid opening date and time, and the RFx number of the IFB. The time and date of receipt shall be indicated on the envelope or package when received by the [Agency]. Each page of the bid form and all attachments shall be identified with the name of the bidder. Failure to submit a bid on the bid form provided may be considered just cause for rejection of the bid. Modifications or additions to any portion of the bid document may be cause for rejection of the bid. The [Agency] reserves the right to decide, on a case-by-case basis, whether to reject a bid with modifications or additions as non-responsive. As a precondition to bid acceptance, the [Agency] may request the bidder to withdraw or modify those portions of the bid deemed non-responsive that do not affect quality, quantity, price, or delivery of the service. (Non-responsive portions of the bid that do not affect service quality, quantity, price or delivery may be, for example, clauses that specify the state in which litigation is to be brought or that provide for high interest charges for late payment.) | |||
CERTIFICATION OF INDEPENDENT PRICE DETERMINATION By submitting a [bid, proposal, qualification], the [bidder, offeror] certifies that the prices submitted in response to the solicitation have been arrived at independently and without any consultation, communication, or agreement with any other [bidder, offeror] or competitor for the purpose of restricting competition. | X | ||
COMPLIANCE WITH EQUAL OPPORTUNITY IN EMPLOYMENT POLICY Contractor understands that the [Agency] 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. | X | X | X |
COMPLIANCE WITH LAWS Contractor shall comply with, and all activities under this agreement shall be subject to, all applicable federal, state, and local laws and regulations, as now existing and as may be amended or modified. | X | X | X |
CONFIDENTIALITY [Agency] is a public agency of the State of Mississippi and is subject to the Mississippi Public Records Act of 1983. Mississippi Code Annotated §§ 25-61-1, et seq. If a public records request is made for any information provided to [Agency] by Contractor, [Agency] shall follow the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1 before disclosing such information - unless Contractor has previously indicated the information is not a trade secret or confidential commercial and financial information. The [Agency] shall not be liable to the Contractor for disclosure of information required by court order or required by law. | |||
CONTRACT ASSIGNMENT AND SUBCONTRACTING Contractor acknowledges that it was selected by [Agency] to perform the services required hereunder based, in part, upon Contractor's special skills and expertise. Contractor shall not assign, subcontract, or otherwise transfer this agreement, in whole or in part, without the prior written consent of [Agency], which may, in its sole discretion, approve or deny without reason. Any attempted assignment or transfer of Contractor's obligations hereunder without consent of the [Agency] shall be null and void. Approval of a subcontract by the [Agency] shall not be deemed to be approval of the incurrence of any additional obligation of the [Agency]. Subcontracts shall be subject to the terms and conditions of this agreement and to any conditions of approval that [Agency] may deem necessary. Subject to the foregoing, this agreement shall be binding upon the respective successors and assigns of the parties. | |||
CONTRACT RIGHTS Contract rights do not vest in any party until a contract is legally executed. The [Agency] is under no obligation to award a contract following issuance of this solicitation. | X | ||
CONTRACTOR PERSONNEL The [Agency] shall, throughout the life of the contract, have the right of reasonable rejection and approval of staff or subcontractors assigned to the work by Contractor. If the [Agency] reasonably rejects staff or subcontractors, Contractor shall provide replacement staff or subcontractors satisfactory to the [Agency] in a timely manner and at no additional cost to the [Agency]. The day-to-day supervision and control of Contractor's employees and subcontractors is the sole responsibility of Contractor. | |||
COPYRIGHTS Contractor agrees that the rights and title to any copyrightable material first produced under this agreement belongs to [Agency]. Contractor hereby grants to [Agency] a royalty-free, nonexclusive, irrevocable license to reproduce, translate, publish, use and dispose of, and to authorize others to do so, all copyrighted or copyrightable work which is incorporated in the material furnished under the agreement regardless of whether it was first produced under this agreement. This grant is provided that such license shall be only to the extent Contractor now has, or prior to the completion of full final settlements of agreement may acquire, the right to grant such license without becoming liable to pay compensation to others. | |||
DISCLOSURE OF CONFIDENTIAL INFORMATION REQUIRED BY LAW In the event that either party to this Agreement receives notice that a third-party has served upon it a subpoena or other validly issued administrative or judicial process ordering divulgence of the other party's data or other information, the party subject to the subpoena or other legal process shall promptly inform the other party at the earliest reasonable opportunity, unless prohibited by law from doing so. Thereafter, the party subject to the legal process shall respond to the extent mandated by law. This section shall survive the termination or completion of this agreement. The parties agree that this section is subject to and superseded by Mississippi Code Annotated §§ 25-61-1, et seq. | |||
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 "Timely Payments for Purchases by Public Bodies" laws, which generally provide for payment of undisputed amounts by the Agency within 45 calendar days of receipt of invoice. Mississippi Code Annotated § 31-7-301, et seq. | X | X | |
E-VERIFICATION If applicable, Contractor represents and warrants that it will ensure its compliance with the Mississippi Employment Protection Act and will register and participate in the status verification system for all newly hired employees. Mississippi Code Annotated §§ 71-11-1 and 71-11-3. Contractor agrees to provide a copy of each verification upon request of the [Agency] subject to approval by any agencies of the United States Government. 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 clause may subject Contractor to the following: (1) termination of this contract and exclusion pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations; (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; or (3) both. In the event of such termination, Contractor would also be liable for any additional costs incurred by the Agency due to Contract cancellation or loss of license or permit to do business in the state. | X | X | |
ENTIRE AGREEMENT This agreement, including all contract documents, represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements, irrespective of whether written or oral. This agreement may be altered, amended, or modified only by a written document executed by the [Agency] and Contractor. Contractor acknowledges that it has thoroughly read all contract documents and has had the opportunity to receive competent advice and counsel necessary for it to form a full and complete understanding of all rights and obligations herein. Accordingly, this agreement shall not be construed or interpreted in favor of or against the [Agency] or Contractor on the basis of draftsmanship or preparation hereof. | |||
EXCEPTIONS TO SOLICITATION (cannot be used in IFBs) Offerors taking exception to any part of the solicitation shall clearly indicate such exceptions in its offer. Failure to indicate any exception will be interpreted as the offeror's intent to comply fully with the requirements as written. Conditional or qualified offers, unless specifically allowed, shall be subject to rejection in whole or in part. | |||
EXCLUSION OR DEBARMENT By submitting a [bid, proposal, qualification, application] in response to the [IFB, RFP, RFQ, RFA], the [bidder, offeror, applicant] certifies that it is not currently excluded or debarred from future contract awards by any political subdivision or agency of any state, federal, local, or county government. [Bidder, Offeror, Applicant] further certifies that it is not an agent of any such person or entity. [Bidder, Offeror, Applicant] certifies that it has not, in the five-year period preceding its offer, been convicted of or had a civil judgment rendered against it for commission of a fraud or criminal offense in connection with obtaining, attempting to obtain, or performance of a public contract; violation of antitrust laws; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. [Bidder, Offeror, Applicant] certifies that it is not presently indicted or otherwise criminally or civilly charged with the commission of any of the acts listed herein. [Bidder, Offeror, Applicant] certifies that, within the past five years, it has not had a contract with a governmental entity terminated due to the [bidder, offeror, applicant] 's failure to perform, default, or any other action or inaction by the [bidder, offeror, applicant]. | |||
EXPENSES INCURRED IN THE PROCUREMENT PROCESS All parties participating in the procurement process with regard to this solicitation shall bear their own costs of participation, pursuant to Section 1.4.4 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations. | X | ||
FAILURE TO DELIVER In the event of failure of Contractor to deliver services in accordance with the contract terms and conditions, the [Agency], after due oral or written notice, may procure the services from other sources and hold Contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies that the [Agency] may have. | |||
FAILURE TO ENFORCE DOES NOT CONSTITUTE WAIVER Failure by the [Agency] at any time to enforce the provisions of the contract shall not be construed as a waiver of any such provisions. Such failure to enforce shall not affect the validity of the contract or any part thereof or the right of the [Agency] to enforce any provision at any time in accordance with its terms. | |||
FORCE MAJEURE Each party shall be temporarily excused from performance for any period and to the extent that it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond the reasonable control and without the fault or negligence of such party and/or its subcontractors. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, earthquakes, floods, or other natural disasters ("force majeure events"). When such a cause arises, Contractor shall notify the Agency in writing at its earliest reasonable opportunity of the cause of its inability to perform, how it affects its performance, and the anticipated duration of the inability to perform. All parties shall make reasonable efforts to minimize the impact of the force majeure event on contract performance. The [Agency] may exercise any rights it has under the contract which are available when neither party is in default. | |||
INDEMNIFICATION (for contracts with non-state Agencies or entities) | |||
To the fullest extent allowed by law, Contractor shall indemnify, defend, save and hold harmless, protect, and exonerate the [Agency] its commissioners, board members, officers, employees, agents, and representatives, and the State of Mississippi from and against all claims, demands, liabilities, suits, actions, damages, losses, and costs of every kind and nature whatsoever including, without limitation, court costs, investigative fees and expenses, and attorneys' fees, arising out of or caused by Contractor and/or its partners, principals, agents, employees and/or subcontractors in the performance of or failure to perform this agreement. In the [Agency]'s sole discretion, upon approval of the Office of the Mississippi Attorney General and the [Agency], Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the [Agency]. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the [Agency] shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the [Agency], which shall not be unreasonably withheld. | |||
INDEPENDENT CONTRACTOR STATUS Contractor shall, at all times, be regarded as and shall be legally considered an independent contractor and shall at no time act as an agent for the [Agency]. Nothing contained herein shall be deemed or construed by the [Agency], Contractor, or any third party as creating the relationship of principal and agent, master and servant, partners, joint ventures, employer and employee, or any similar such relationship between the [Agency] and Contractor. Neither the method of computation of fees or other charges, nor any other provision contained herein, nor any acts of the [Agency] or Contractor hereunder creates or shall be deemed to create a relationship other than the independent relationship of the [Agency] and Contractor. Contractor's personnel shall not be deemed in any way, directly or indirectly, expressly or by implication, to be employees of the [Agency]. Neither Contractor nor its employees shall, under any circumstances, be considered servants, agents, or employees of the [Agency], and the [Agency] shall be at no time legally responsible for any negligence or other wrongdoing by Contractor, its servants, agents, or employees. The [Agency] shall not withhold from the contract payments to Contractor any federal or state unemployment taxes, federal or state income taxes, Social Security tax, or any other amounts for benefits to Contractor. Further, the [Agency] shall not provide to Contractor any insurance coverage or other benefits, including Workers' Compensation, normally provided by the [Agency] for its employees. | |||
INFORMATION DESIGNATED BY AGENCY AS CONFIDENTIAL Any liability resulting from the wrongful disclosure of confidential information on the part of Contractor, or its subcontractor(s) shall rest with Contractor. Disclosure of any confidential information by Contractor or its subcontractor(s) without the express written approval of the [Agency] may result in the immediate termination of this agreement. | |||
INFORMATION DESIGNATED BY CONTRACTOR AS CONFIDENTIAL Any disclosure of those materials, documents, data, and other information which Contractor has designated in writing as proprietary and confidential shall be subject to the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1. The services to be provided, the unit prices and overall price to be paid, and the term of the contract shall not be deemed a trade secret or confidential commercial or financial information. | |||
INFRINGEMENT INDEMNIFICATION Contractor warrants that the materials and deliverables provided to the [Agency] under this agreement, and their use by the [Agency], will not infringe or constitute an infringement of any copyright, patent, trademark, or other proprietary right. Should any such items become the subject of an infringement claim or suit, Contractor shall defend the infringement action and/or obtain for the [Agency] the right to continue using such items without additional cost to the Agency. Should Contractor fail to obtain for the [Agency] the right to use such items, Contractor shall suitably modify them to make them non-infringing or substitute equivalent software or other items at Contractor's expense. In the event the above remedial measures cannot possibly be accomplished, and only in that event, Contractor may require the [Agency] to discontinue using such items, in which case Contractor will refund to the [Agency] the fees previously paid by the [Agency] for the items the customer may no longer use, and shall compensate the [Agency] for the lost value of the infringing part to the phase in which it was used, up to and including the contract price for said phase. Said refund shall be paid within 10 business days of notice to the [Agency] to discontinue said use. Scope of Indemnification: Provided that the [Agency] promptly notifies Contractor in writing of any alleged infringement claim of which it has knowledge, Contractor shall defend, indemnify, and hold harmless the [Agency] against any such claims, including but not limited to any expenses, costs, damages and attorney fees that a court finally awards for infringement based on the programs and deliverables provided under this agreement. In the [Agency]'s sole discretion, upon approval of the Office of the Mississippi Attorney General and the [Agency], Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the [Agency]. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the [Agency] shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the [Agency], which shall not be unreasonably withheld. | |||
INSURANCE [Before using this clause, the Agency should determine what insurance is needed from the vendor based on the scope of work, risk to the Agency, and other liabilities, and then amend this clause to reflect the desired coverage.] Contractor represents that it will maintain workers' compensation insurance in compliance with Mississippi law which shall inure to the benefit of all Contractor's personnel provided hereunder, comprehensive general liability or professional liability insurance with minimum limits of [$Amount] per occurrence, and fidelity bond insurance with minimum limits of [$Amount]. All general liability, professional liability, and fidelity bond insurance will provide coverage to the [Agency] as an additional insured. The [Agency] reserves the right to request from carriers, certificates of insurance regarding the required coverage. Insurance carriers shall be licensed or hold a Certificate of Authority from the Mississippi Department of Insurance. | |||
LIQUIDATED DAMAGES [Describe the event(s) which would trigger the liquidated damages clause and the method by which liquidated damages will be calculated. Any liquidated damages terms shall have been specifically agreed upon by the parties at the time of contracting and included in the contract.] | |||
MINOR INFORMALITIES AND IRREGULARITIES The [Agency] has the right to waive minor defects or variations of a [bid, proposal, qualification, application] from the exact requirements of the specifications that do not affect the price, quality, quantity, delivery, or performance of the services being procured and if doing so does not create an unfair advantage for any [bidder, offeror, applicant]. If insufficient information is submitted by a [bidder, offeror, applicant] for the [Agency] to properly evaluate the offer, the [Agency] has the right to require such additional information as it may deem necessary after the submission deadline, provided that the information requested does not change the price, quality, quantity, delivery, or performance time of the services being procured and such a request does not create an unfair advantage for any [bidder, offeror, applicant]. (Information requested may include, for example, a copy of business or professional licenses, or a work schedule.) | X | ||
MODIFICATION OR RENEGOTIATION REQUIRED BY CHANGE IN LAW | |||
The parties agree to renegotiate the agreement in good faith if federal and/or state revisions to any applicable laws or regulations make changes in this agreement necessary. This agreement may be modified only by written agreement signed by the parties hereto and approval by the Public Procurement Review Board, if required. | |||
NO LIMITATION OF LIABILITY Nothing in this agreement shall be interpreted as excluding or limiting any liability of the Contractor for harm arising out of the Contractor's or its subcontractors' performance under this agreement. | X | X | |
NON-CONFORMING TERMS AND CONDITIONS A [bid, proposal, qualification, application] which includes terms and conditions which do not conform to the terms and conditions in the [IFB, RFP, RFQ, RFA] is subject to rejection as non-responsive. The [Agency] reserves the right to permit the offeror to withdraw nonconforming terms and conditions prior to a determination of non-responsiveness. | |||
NON-SOLICITATION OF EMPLOYEES Each party to this agreement agrees not to employ or to solicit for employment, directly or indirectly, any persons in the full-time or part-time employment of the other party until at least one year after this agreement terminates unless mutually agreed to in writing by the [Agency] and Contractor. Any such employment or solicitation for employment shall be in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121. | |||
NOTICES All notices required or permitted to be given under this agreement shall be in writing and personally delivered or sent by certified United States mail, postage prepaid, return receipt requested, to the party to whom the notice should be given at the address set forth below. Notice shall be deemed given when actually received or when refused. The parties agree to promptly notify each other in writing of any change of address. For Contractor: [Name & Title] [Contact Information] For [Agency]: [Name & Title] [Contact Information] | |||
[OFFEROR'S, CONTRACTOR'S] REPRESENTATION REGARDING CONTINGENT FEES By [responding to the solicitation, executing the contract] the [offeror, contractor] represents that it has not retained any person or agency on a percentage, commission, or other contingent arrangement to secure this contract. If the [offeror, contractor] cannot make such a representation, a full and complete explanation shall be submitted in writing [with the offeror's response, to the Agency prior to contract execution]. | X | X | |
ORAL STATEMENTS No oral statement of any person shall modify or otherwise affect the terms, conditions, or specifications stated in this contract. All modifications to the contract shall be made in writing by the [Agency], agreed to by Contractor, and approved by the Public Procurement Review Board, if required. | |||
OWNERSHIP OF DOCUMENTS AND WORK PAPERS [Agency] shall own all documents, files, reports, work papers and working documentation, electronic or otherwise, created in connection with the project which is the subject of this agreement, except for Contractor's internal administrative and quality assurance files and internal project correspondence. Contractor shall deliver such documents and work papers to [Agency] upon termination or completion of the agreement. The foregoing notwithstanding, Contractor shall be entitled to retain a set of such work papers for its files and shall obtain written permission from [Agency] to use such workpapers, subject to any copyright protections. | |||
PAYMODE Payments by [Agency] using the state's accounting system shall be made and remittance information provided electronically as directed by the state and deposited into the bank account of Contractor's choice. The [Agency] 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 Agency is exempt from the payment of Mississippi taxes. All payments shall be in United States currency. | X | X | |
PRE-[BID, SUBMISSION] CONFERENCE(mandatory attendance) A pre-[bid, submission] conference will be held at [time] on [date] at [location]. Any party interested in responding to the solicitation is required to attend. The purpose of the pre-[bid, submission] conference is to allow potential [bidders, offerors] an opportunity to present questions to staff and obtain clarification of the requirements of the solicitation document. Because the [Agency] considers the conference to be critical to understanding the solicitation requirements, attendance is mandatory in order to qualify as a [bidder, offeror]. | |||
PRE-[BID, SUBMISSION] CONFERENCE(optional attendance) An optional pre-[bid, submission] conference will be held at [time] on [date] at [location]. Any party interested in responding to the solicitation is urged to attend. The purpose of the pre-[bid, submission] conference is to allow potential offerors an opportunity to present questions to staff and obtain clarification of the requirements of the solicitation document. | |||
PRICE ADJUSTMENT [Any adjustments in price during the life of a contract is limited to the price adjustment methodology stated in the solicitation, or if the contract was not formally solicited, is limited to the methodology included in the contract at the time the contract was originally executed. Describe the method in which any price adjustment will be calculated, the triggering event which makes the price adjustment clause applicable, any limits on the price adjustment available, and any other requirements applicable for the price adjustment clause to be enacted. Any available price adjustment shall have been specifically agreed upon by the parties at the time of contracting and included in the contract. For examples, see Exhibit 1 to Chapter 14.] | |||
PRICE CERTIFICATION Any [bidder, offeror] submitting a response to this [IFB, RFP, RFQ] agrees and certifies that it will honor its pricing and all terms and conditions herein for the duration of the contract term described in this solicitation. By submitting a response hereto, [bidder, offeror] agrees to accept a contract pursuant to the requirements of Section 14.15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations if so requested by the procuring Agency. | |||
PRIORITY The contract consists of this agreement, the [IFB, RFP, RFQ] [RFx No. 1234567890], attached hereto as Attachment A, and the Contractor's [bid, proposal, qualification] submitted in response, attached hereto as Attachment B. Any ambiguities, conflicts, or questions of interpretation of this contract shall be resolved first by reference to this agreement and, if still unresolved, by reference to Attachment A and, if still unresolved, by reference to Attachment B. Omission of any term or obligation from this agreement shall not be deemed an omission from this contract if such term or obligation is provided for elsewhere in this contract. [The Agency has discretion as to which documents to attach to the contract and what priority those documents should be assigned.] | |||
PROCUREMENT REGULATIONS This [solicitation, contract] shall be governed by the applicable provisions of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations, a copy of which is available on the Mississippi Department of Finance and Administration's website (www.dfa.ms.gov). Any [bidder, offeror] responding to a solicitation for personal and professional services and any contractor doing business with a state Agency is deemed to be on notice of all requirements therein. | X | X | X |
PROFESSIONAL CERTIFICATIONS AND LICENSES [Before using this clause, the Agency should determine whether professional certificates and licenses are needed from the vendor to determine whether the vendor's qualifications are acceptable to the Agency. The clause should be amended to reflect the desired certificates and licenses.] Contractor shall provide official copies of all valid licenses and certificates required for performance of the work. The official copies shall be delivered to the [Agency] no later than ten business days after Contractor receives the Notice of Intent to Award from the [Agency]. Current official copies of licenses and certificates shall be provided to the [Agency] within five business days of request at any time during the contract term. Licenses and certificates required for this contract include the following: a business license valid in [state]; a professional license or certificate in the field of [specialty area]; [any additional certificates or licensing]. | |||
PROPERTY RIGHTS(for the contract) Property rights do not inure to Contractor until such time as services have been provided under a legally executed contract. Contractor has no legitimate claim of entitlement to the provision of work hereunder and acknowledges that the [Agency] may terminate this contract at any time for its own convenience. | X | X | |
PROPERTY RIGHTS(for the solicitation document) Property rights do not inure to any [Bidder, Offeror] until such time as services have been provided under a legally executed contract. No party responding to this [IFB, RFP, RFQ] has a legitimate claim of entitlement to be awarded a contract or to the provision of work thereunder. The [Agency] is under no obligation to award a contract and may terminate a legally executed contract at any time. | X | ||
QUALITY CONTROL Contractor shall institute and maintain throughout the contract period a properly documented quality control program designed to ensure that the services are provided at all times and in all respects in accordance with the contract. The program shall include providing supervision and conducting frequent inspections of Contractor's staff and ensuring that accurate records are maintained describing the disposition of all complaints. The records so created shall be open to inspection by the [Agency]. | |||
RECORD RETENTION AND ACCESS TO RECORDS Contractor shall maintain such financial records and other records as may be prescribed by the [Agency] or by applicable federal and state laws, rules, and regulations. Provided Contractor is given reasonable advance written notice and such inspection is made during normal business hours of Contractor, the [Agency] or any duly authorized representatives shall have unimpeded, prompt access to any of Contractor's books, documents, papers, and/or records which are relevant to this agreement. All records related to this agreement shall be retained by Contractor for three years after final payment is made under this agreement and all pending matters are closed; however, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the three year period, the records shall be retained for one year after all issues arising out of the action are finally resolved or until the end of the three year period, whichever is later. [On a case-by-case basis, Agencies should consider how any data privacy and/or record retention laws and regulations directly relevant to the Agency may impact the requirements of this clause.] | |||
RECOVERY OF MONEY Whenever, under the contract, any sum of money shall be recoverable from or payable by Contractor to the [Agency], the same amount may be deducted from any sum due to Contractor under the contract or under any other contract between Contractor and the [Agency]. The rights of the [Agency] are in addition and without prejudice to any other right the [Agency] may have to claim the amount of any loss or damage suffered by the [Agency] on account of the acts or omissions of Contractor. | |||
RELEASE OF [BID, PROPOSAL, QUALIFICATION] AS PUBLIC RECORD [Bidders, Offerors] shall acknowledge which of the following statements is applicable regarding release of its [bid, proposal, qualification] as a public record. A [bidder, offeror] may be deemed non-responsive if the [bidder, offeror] does not acknowledge either statement, acknowledges both statements, or fails to comply with the requirements of the statement acknowledged. Choose one: - Along with a complete copy of its [bid, proposal, qualification], [bidder, offeror] has submitted a second copy of the [bid, proposal, qualification] in which all information [bidder, offeror] deems to be confidential commercial and financial information and/or trade secrets is redacted in black. [Bidder, Offeror] acknowledges that it may be subject to exclusion pursuant to Chapter 15 of the PPRB OPSCR Rules and Regulations if the [Agency] or the Public Procurement Review Board determine redactions were made in bad faith in order to prohibit public access to portions of the [bid, proposal, qualification] which are not subject to Mississippi Code Annotated §§ 25-61-9, 75-26-1 through 75-26-19, and/or 79-23-1. [Bidder, Offeror] acknowledges and agrees that [Agency] may release the redacted copy of the [bid, proposal, qualification] at any time as a public record without further notice to [bidder, offeror]. A [bidder, offeror] who selects this option but fails to submit a redacted copy of its [bid, proposal, qualification] may be deemed non-responsive. - [Bidder, Offeror] hereby certifies that the complete unredacted copy of its [bid, proposal, qualification] may be released as a public record by the [Agency] at any time without notice to [bidder, offeror]. The [proposal, qualification] contains no information [bidder, offeror] deems to be confidential commercial and financial information and/or trade secrets in accordance with Mississippi Code Annotated §§ 25-619, 75-26-1 through 75-26-19, and/or 79-23-1. [Bidder, Offeror] explicitly waives any right to receive notice of a request to inspect, examine, copy, or reproduce its bid as provided in Mississippi Code Annotated § 25-61-9(1)(a). A [bidder, offeror] who selects this option but submits a redacted copy of its [bid, proposal, qualification] may be deemed non-responsive. | |||
RENEWAL OF CONTRACT The contract may be renewed at the discretion of the [Agency] for a period of [number] successive one-year periods under the same prices, terms, and conditions as in the original contract. The total number of renewal years permitted shall not exceed [number]. | |||
REPRESENTATION REGARDING GRATUITIES [Offeror, Contractor] represents that it has not, is not, and will not offer, give, or agree to give any employee or former employee of [Agency] a gratuity or offer of employment in connection with any approval, disapproval, recommendation, development, or any other action or decision related to the solicitation and resulting contract. [Offeror, Contractor] further represents that no employee or former employee of [Agency] has or is soliciting, demanding, accepting, or agreeing to accept a gratuity or offer of employment for the reasons previously stated; any such action by an employee or former employee in the future, if any, will be rejected by [offeror, contractor]. [Offeror, Contractor] further represents that it is in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121, and has not solicited any employee or former employee to act in violation of said law. | X | X | X |
REQUIRED PUBLIC RECORDS AND TRANSPARENCY Upon execution of a contract, the provisions of the contract which contain the personal or professional services provided, the unit prices, the overall 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 pursuant to Mississippi Code Annotated § 2561-9(7). The contract shall be posted publicly on www.transparency.ms.gov and shall be available for at the Agency for examination, inspection, or reproduction by the public. The [bidder, offeror, applicant, contractor] acknowledges and agrees that the [Agency] and this contract are subject to the Mississippi Public Records Act of 1983 codified at Mississippi Code Annotated §§ 25-61-1, et seq. and its exceptions, Mississippi Code Annotated § 79-23-1, and the Mississippi Accountability and Transparency Act of 2008, codified at Mississippi Code Annotated §§ 27-104-151, et seq. | X | X | X |
REQUIREMENTS CONTRACT During the period of the contract, Contractor shall provide all services described in the contract. Contractor understands and agrees that this is a requirements contract and that the [Agency] shall have no obligation to Contractor if no services are required. Any quantities that are included in the scope of work reflect the current expectations of the [Agency] for the period of the contract. The amount is only an estimate and Contractor understands and agrees that the [Agency] is under no obligation to Contractor to utilize any amount of the services as a result of having provided this estimate or of having any typical or measurable requirement in the past. Contractor further understands and agrees that the [Agency] may require services in an amount less than or in excess of the estimated annual contract amount and that the quantity actually used, whether in excess of the estimate or less than the estimate, shall not give rise to any claim for compensation other than the total of the unit prices in the contract for the quantity actually used. | |||
RIGHT TO AUDIT Contractor shall maintain such financial records and other records as may be prescribed by the [Agency] or by applicable federal and state laws and regulations. Contractor shall retain these records for a period of three years after final payment, or until they are audited by the [Agency], whichever event occurs first. These records shall be made available during the term of the contract and the subsequent three-year period for examination, transcription, and audit by the [Agency], the Mississippi State Auditor's Office, and/or other entity of the state. | |||
RIGHT TO INSPECT FACILITY The [Agency] may, at reasonable times, inspect the place of business of a Contractor or any subcontractor which is related to the performance of any contract awarded by the [Agency]. | |||
SEVERABILITY If any part of this agreement is declared to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the agreement that can be given effect without the invalid or unenforceable provision, and to this end the provisions hereof are severable. In such event, the parties shall amend the agreement as necessary to reflect the original intent of the parties and to bring any invalid or unenforceable provisions in compliance with applicable law. | |||
STATE PROPERTY Contractor will be responsible for the proper custody and care of any state-owned property furnished for Contractor's use in connection with the performance of this agreement. Contractor will reimburse the state for any loss or damage, normal wear and tear excepted. | |||
STOP WORK ORDER The [Agency] may, by written order to Contractor at any time, require Contractor to stop all or any part of the work called for by this contract. This order shall be for a period of time specified by the [Agency]. Upon receipt of such an order, Contractor shall forthwith comply with its terms and take all reasonable steps to minimize any further cost to the [Agency]. Upon expiration of the stop work order, Contractor shall resume providing the services which were subject to the stop work order, unless the [Agency] has terminated that part of the agreement or terminated the agreement in its entirety. The [Agency] is not liable for payment for services which were not rendered due to the stop work order. | X | X | X |
SURETY REQUIRED A performance bond in the amount of 100 percent of the total contract price shall be required of the successful offeror to ensure satisfactory completion of the work. The bond shall be a corporate surety bond issued by a surety company authorized to do business in the State of Mississippi. In no event shall the requirement for the performance bond be waived. | |||
TERMINATION Termination for Convenience. The [Agency] may, when the interests of the Agency so require, terminate this contract in whole or in part, for the convenience of the Agency. The [Agency] shall give written notice of the termination to Contractor specifying the part of the contract terminated and when termination becomes effective. 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 complete the work not terminated by the notice of termination and may incur obligations as are necessary to do so. Termination for Default. If the [Agency] gives the Contractor a notice that the personal or professional services are being provided in a manner that is deficient, the Contractor shall have 30 days to cure the deficiency. If the Contractor fails to cure the deficiency, the [Agency] may terminate the contract for default and the Contractor will be liable for the additional cost to the [Agency] to procure the personal and professional services from another source. Termination under this paragraph could result in Contractor being excluded from future contract awards pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations. Any termination wrongly labelled termination for default shall be deemed a termination for convenience. | X | X | X |
THIRD PARTY ACTION NOTIFICATION Contractor shall give the customer prompt notice in writing of any action or suit filed, and prompt notice of any claim made against Contractor by any entity that may result in litigation related in any way to this agreement. | |||
VARIATION IN QUANTITY(for definite quantity contracts) The quantity of services specified in this contract may be increased to the extent agreeable by both parties. However, the unit prices shall remain unchanged, other than as allowed by a price adjustment which would have otherwise been applicable. |
Miss. Code. tit. 12, pt. 9, [Effective 9/6/2024] APPENDICES, app 12-9-E