Section 27-100-3-502 - MULTI-TERM CONTRACTS(a)Specified Period Unless otherwise provided by law, a contract for services may be entered into for a period of time not to exceed four (4) years with an option to renew for one year, provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds.
(b)Determination Prior to Use Prior to the utilization of a multi-term contract, it shall be determined in writing by the agency and maintained in the procurement file:
(1) that estimated requirements cover the period of the contract and are reasonably firm and continuing; and, (2) that such a contract will serve the best interests of the State of Mississippi by encouraging effective competition or otherwise promoting economies in state procurement. 3-502.01Multi-Term Contracts - General A multi-term contract is appropriate when it is in the best interest of the State to obtain uninterrupted services extending over more than one fiscal period, where the performance of such services involves high start-up costs, or where a changeover of service contractors involves high phase-in/phase-out costs during a transition period.
Special production refers to production for contract performance which requires alteration of the contractor's facilities or operations involving high start-up costs. The contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds therefor. The contract shall provide that in the event that funds are not available for any succeeding fiscal period, the remainder of such contract shall be canceled.
3-502.02Conditions for Use of Multi-Term Contracts A multi-term contract may be used when it is determined in writing by the Procurement Officer and maintained in the procurement file that:
(a) the furnishing of long-term services are required to meet needs of the State; and, (b) a multi-term contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in state procurement. The following factors are among those relevant to such a determination: (1) firms which are not willing or able to compete because of high start-up costs or capital are assured of recouping such costs during the period of contract performance; (2) lower production costs because of larger quantity or service requirements and substantial continuity of production or performance over a longer period of time can be expected to result in lower unit prices; (3) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or, (4) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced. 3-502.03Multi-Term Contract Procedure3-502.03.1 Solicitation The solicitation shall state:
(a) the amount of services required for the proposed contract period; (b) that a unit price shall be given for each service, and that such unit prices shall be the same throughout the contract; (c) that the multi-term contract will be canceled if funds are not appropriated or otherwise made available to support the continuation of performance in any fiscal period succeeding the first; however, this does not affect either the State's right or the contractor's rights under any termination clause in the contract; (d) that the Procurement Officer must notify the contractor on a timely basis that the funds are or are not available for the continuation of the contract for each succeeding fiscal period; and, (e) that a multi-term contract may be awarded and how award will be determined. 3-502.03.2Award Award shall be made as stated in the solicitation and permitted under the source selection method utilized.
3-502.03.3Cancellation(a) "Cancellation," as used in multi-term contracting, means the cancellation of the total requirements for the remaining portion of the contract because funds were not appropriated or otherwise made available. The contract for the fiscal period shall not be canceled. Cancellation results when the Procurement Officer: (1) notifies the contractor of non-availability of funds for contract performance for any fiscal period subsequent to the first; or, (2) exercises a cancellation provision of the original contract. (b) These provisions on cancellation of multi-term contracts do not limit the rights of the State or the contractor under any termination clause of the contract if the contract is terminated pursuant to that clause rather than canceled as provided in this subsection. If a contract is canceled for lack of funding, all obligations due the contractor for the period during which funding was available shall be paid. Cancellation for reasons of nonavailability of funding relieves the purchaser of all contractual obligations for any contract period subsequent to the date of cancellation. No contract shall be canceled for lack of funds during a fiscal year period when funds were allocated for such contract. 3-502.03.4Contract Clause The following clause, or one substantially similar, shall be used by the Purchasing Agency in multi-term contractual agreements:
Availability of Funds
It is expressly understood and agreed that the obligation of the [agency] to proceed under this agreement is conditioned upon the appropriation of funds by the Mississippi State Legislature and the receipt of state and/or federal funds. If the funds anticipated for the continuing fulfillment of the agreement are, at any time, not forthcoming or insufficient, either through the failure of the federal government to provide funds or of the State of Mississippi to appropriate funds or the discontinuance or material alteration of the program under which funds were provided or if funds are not otherwise available to the State, the [agency] shall have the right upon ten (10) working days written notice to the contractor, to terminate this agreement without damage, penalty, cost or expenses to the State of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination.
Note:Multi-term contracts, as set forth in this section, should be interpreted to mean a contract having effective dates spanning appropriation periods two or more fiscal years and would obligate the agency to purchase a specified quantity of services over that period.
27 Miss. Code. R. 100-3-502