The following contract clauses should be used as required by
the Mississippi Personal Service Contract Review Board Rules and
Regulations and at the discretion of the Agency Head. In addition to
these clauses, see Appendices D (Required Clauses in Contract for Services), E
(Required Clauses in RFP's and IFB's), F (Clauses Available for Use in Service
Contracts), and G (Clauses Available for Use in Solicitations for Bids or
Proposals) for other clauses.
4-101.01
Stop Work Order Clause: Use of clause
The clause set forth in subsection 4-101.01.2 of this
section is authorized for use in any fixed-price contract under which work
stoppage may be required for reasons such as advancements in the state of the
art, production modifications, engineering changes, or realignment of programs.
4-101.01.1
Use of
Orders
(a) Because stop work orders
may result in increased costs by reason of standby costs, such orders shall be
issued only with prior approval of the Agency Head. Generally, use of a stop
work order will be limited to situations in which it is advisable to suspend
work pending a decision to proceed by the State, and a supplemental agreement
providing for such suspension is not feasible. A stop work order may not be
used in lieu of the issuance of a termination notice after a decision to
terminate has been made.
(b) Stop
work orders shall not exceed 90 consecutive days and shall include, as
appropriate:
(1) a clear description of the
work to be suspended;
(2)
instructions as to the issuance of further orders by the contractor for
material or services;
(3) guidance
as to action to be taken on subcontracts; and,
(4) other instructions and suggestions to the
contractor for minimizing costs.
Promptly after issuance, stop work orders shall be discussed
with the contractor and should be modified, if necessary, in the light of such
discussions.
(c) As soon as feasible after a stop work
order is issued:
(1) the contract will be
terminated; or,
(2) the stop work
order will be canceled or extended in writing beyond the period specified in
the order.
In any event, action must be taken before the specified stop
work period expires. If an extension of the stop work order is necessary, it
must be evidenced by a supplemental agreement. Any cancellation of a stop work
order shall be subject to the same Agency Head approval as was required for the
issuance of the order.
4-101.01.2
Stop Work Order Clause
(Required)
STOP WORK ORDER
(1)
Order to Stop Work.
The Procurement Officer of the [State], may, by written order to the contractor
at any time, and without notice to any surety, require the contractor to stop
all or any part of the work called for by this contract. This order shall be
for a specified period not exceeding 90 days after the order is delivered to
the contractor, unless the parties agree to any further period. Any such order
shall be identified specifically as a stop work order issued pursuant to this
clause. Upon receipt of such an order, the contractor shall forthwith comply
with its terms and take all reasonable steps to minimize the occurrence of
costs allocable to the work covered by the order during the period of work
stoppage. Before the stop work order expires, or within any further period to
which the parties shall have agreed, the Procurement Officer shall
either:
a.
cancel the stop
work order; or,
b.
terminate the work covered by such order as provided in the
Termination for Default clause or the Termination for Convenience clause of
this contract.
(2)
Cancellation or Expiration
of the Order. If a stop work order issued under this clause is canceled
at any time during the period specified in the order, or if the period of the
order or any extension thereof expires, the contractor shall have the right to
resume work. An appropriate adjustment shall be made in the delivery schedule
or contractor price, or both, and the contract shall be modified in writing
accordingly, if:
a.
the
stop work order results in an increase in the time required for the performance
of any part of this contract; or,
b.
the stop work order results in an
increase in the contractor's cost properly allocable to the performance of any
part of this contract; and,
c.
the contractor asserts a claim
for such an adjustment within 30 days after the end of the period of work
stoppage; provided that, if the Procurement Officer decides that the facts
justify such action, any such claim asserted may be received and acted upon at
any time prior to final payment under this contract.
(3)
Termination of
Stopped Work. If a stop work order is not canceled and the work covered
by such order is terminated for default or convenience, the reasonable costs
resulting from the stop work order shall be allowed by adjustment or
otherwise.
(4)
Adjustments of Price. Any adjustment in contract price made
pursuant to this clause shall be determined in accordance with the Price
Adjustment clause of this contract.
4-101.02
Variations in Estimated
Quantities Clause ( form) (Optional)
4-101.02.1
Definite Quantity
Contracts
The following clause is authorized for use in definite
quantity service contracts:
VARIATION IN QUANTITY
Upon the agreement of the parties, the quantity of
services specified in this contract may be increased by a maximum of ten
percent provided:
(1)
the unit prices will remain the same (except for any price adjustments
otherwise applicable); and,
(2)
the Procurement Officer makes a
written determination that such an increase will either be more economical than
awarding another contract or that it would not be practical to award another
contract.
4-101.02.2
Indefinite Quantity
Contracts
Indefinite quantity contracts require flexibility as to the
State's obligation to order and the contractor's obligation to deliver. The
agreement should be designed to meet the agency's needs while making the
contract as attractive as possible to potential contractors, thereby attempting
to obtain maximum practicable competition in order to assure the best economy
for the State of Mississippi. Because of the need for flexibility, no clause is
provided herein; however, in each case, the contract should state:
(a) the minimum quantity, if any, the State
is obligated to order and the contractor to provide;
(b) whether there is a quantity the State
expects to order and how this quantity relates to any minimum and maximum
quantities that may be ordered under this contract;
(c) any maximum quantity the State may order
and the contractor must provide; and,
(d) whether the State is obligated to order
its actual requirements under the contract, or in the case of a multiple award
as defined in section 3-503 (Multiple Sourcing Contracting), that the State
will order its actual requirements from the contractors under the multiple
award subject to any minimum or maximum quantity stated.
4-101.03
Price
Adjustment Clause (Optional)
PRICE ADJUSTMENT
(1)
Price Adjustment
Methods. Any adjustment in contract price pursuant to a clause in this
contract shall be made in one or more of the following ways:
(a)
by agreement on a fixed price
adjustment before commencement of the additional performance;
(b)
by unit prices
specified in the contract;
(c)
by the costs attributable to the
event or situation covered by the clause, plus appropriate profit or fee, all
as specified in the contract; or,
(d)
by a price escalation
clause.
(2)
Submission of Cost or Pricing Data. The contractor shall
provide cost or pricing data for any price adjustments subject to the
provisions of Section 3-403 (Cost or Pricing Data) of the Mississippi Personal
Service Contract Review Board Rules and Regulations.
4-101.04
Claims Based on a
Procurement Officer's Actions or Omissions Clause (Optional)
CLAIMS BASED ON PROCUREMENT OFFICER'S ACTIONS
OR OMISSIONS
(1)
Notice of Claim. If any action or omission on the part of
a Procurement Officer or designee of such officer requiring performance changes
within the scope of the contract constitutes the basis of a claim by the
contractor for additional compensation, damages, or an extension of time for
completion, the contractor shall continue with performance of the contract in
compliance with the directions or orders of such officials, but by so doing,
the contractor shall not be deemed to have prejudiced any claim for additional
compensation, damages, or an extension of time for completion,
provided:
(a)
the
contractor shall have given written notice to the Procurement Officer or
designee of such officer:
(i.)
prior to the commencement of the work involved, if at that time the
contractor knows of the occurrence of such action or omission;
(ii.)
within 30 days
after the contractor knows of the occurrence of such action or omission, if the
contractor did not have such knowledge prior to the commencement of the work;
or,
(iii.)
within such further time as may be allowed by the Procurement Officer in
writing.
(This notice shall state that the contractor regards
the act or omission as a reason which may entitle the contractor to additional
compensation, damages, or an extension of time. The Procurement Officer or
designee of such officer, upon receipt of such notice, may rescind such action,
remedy such omission, or take such other steps as may be deemed advisable in
the discretion of the Procurement Officer or designee of such
officer.)
(b)
the notice required by
Subparagraph (a) of this Paragraph describes as clearly as practicable at the
time the reasons why the contractor believes that additional compensation,
damages, or an extension of time may be remedies to which the contractor is
entitled; and,
(c)
the contractor maintains and, upon request, makes available to the
Procurement Officer within a reasonable time, detailed records to the extent
practicable, of the claimed additional costs or basis for an extension of time
in connection with such changes.
(2)
Limitation of
Clause. Nothing herein contained shall excuse the contractor from
compliance with any rules or law precluding any state officers and any
contractors from acting in collusion or bad faith in issuing or performing
change orders which are clearly not within the scope of the contract.
(3)
Adjustment of
Price. Any adjustment in the contract price made pursuant to this clause
shall be determined in accordance with the Price Adjustment clause of this
contract.
4-101.05
Termination for Default
Clause (Optional)
TERMINATION FOR DEFAULT
(1)
Default. If
the contractor refuses or fails to perform any provisions of this contract with
such diligence as will ensure its completion within the time specified in this
contract, or any extension thereof, or otherwise fails to timely satisfy the
contract provisions, or commits any other substantial breach of this contract,
the Procurement Officer of the [State] may notify the contractor in writing of
the delay or nonperformance and if not cured in ten (10) days or any longer
time specified in writing by the Procurement Officer, such officer may
terminate the contractor's right to proceed with the contract or such part of
the contract as to which there has been delay or a failure to properly perform.
In the event of termination in whole or in part, the Procurement Officer may
procure similar services in a manner and upon terms deemed appropriate by the
Procurement Officer. The contractor shall continue performance of the contract
to the extent it is not terminated and shall be liable for excess costs
incurred in procuring similar goods or services.
(2)
Contractor's
Duties. Notwithstanding termination of the contract and subject to any
directions from the Procurement Officer, the contractor shall take timely,
reasonable, and necessary action to protect and preserve property in the
possession of the contractor in which the State has an interest.
(3)
Compensation. Payment for completed services delivered and
accepted by the [State] shall be at the contract price. The [State] may
withhold from amounts due the contractor such sums as the Procurement Officer
deems to be necessary to protect the [State] against loss because of
outstanding liens or claims of former lien holders and to reimburse the [State]
for the excess costs incurred in procuring similar goods and services.
(4)
Excuse for
Nonperformance or Delayed Performance. Except with respect to defaults
of subcontractors, the contractor shall not be in default by reason of any
failure in performance of this contract in accordance with its terms (including
any failure by the contractor to make progress in the prosecution of the work
hereunder which endangers such performance) if the contractor has notified the
Procurement Officer within 15 days after the cause of the delay and the failure
arises out of causes such as: acts of God; acts of the public enemy; acts of
the State and any other governmental entity in its sovereign or contractual
capacity; fires; floods; epidemics; quarantine restrictions; strikes or other
labor disputes; freight embargoes; or unusually severe weather. If the failure
to perform is caused by the failure of a subcontractor to perform or to make
progress, and if such failure arises out of causes similar to those set forth
above, the contractor shall not be deemed to be in default, unless the services
to be furnished by the subcontractor were reasonably obtainable from other
sources in sufficient time to permit the contractor to meet the contract
requirements.
Upon request of the contractor, the Procurement
Officer of the [State] shall ascertain the facts and extent of such failure,
and, if such officer determines that any failure to perform was occasioned by
any one or more of the excusable causes, and that, but for the excusable cause,
the contractor's progress and performance would have met the terms of the
contract, the delivery schedule shall be revised accordingly, subject to the
rights of the [State] under the clause entitled (in fixed-price contracts,
"Termination for Convenience," or in
cost-reimbursement contracts, "Termination"). (As used in this Paragraph of
this clause, the term "subcontractor" means subcontractor at any
tier).
(5)
Erroneous Termination for Default. If, after notice of
termination of the contractor's right to proceed under the provisions of this
clause, it is determined for any reason that the contract was not in default
under the provisions of this clause, or that the delay was excusable under the
provisions of Paragraph (4) of this clause, the rights and obligations of the
parties shall, if the contract contains a clause providing for termination for
convenience of the [State], be the same as if the notice of termination has
been issued pursuant to such clause.
(6)
Additional Rights and
Remedies. The rights and remedies provided in this clause are in
addition to any other rights and remedies provided by law or under this
contract.
4-101.06
Liquidated Damages Clause
(Optional)
4-101.06.1
With
Termination for Default Clause
The following clause is authorized for use in service
contracts when it is difficult to determine with reasonable accuracy the amount
of damage to the State due to delays caused by late contractor performance or
nonperformance and the contract contains the Termination for Default Clause set
forth in Section 4-101.05.
LIQUIDATED DAMAGES
(1)
When the contractor is given
notice of delay or nonperformance as specified in Paragraph [(1) (Default)] of
the Termination for Default clause of this contract and fails to cure in the
time specified, the contractor shall be liable for damages for delay in the
amount of $ ______ per calendar day from date set for cure until either the
[State] reasonably obtains similar services if the contractor is terminated for
default, or until the contractor provides the services if the contractor is not
terminated for default. To the extent that the contractor's delay or
nonperformance is excused under Paragraph (4) (Excuse for Nonperformance or
Delayed Performance) of the Termination for Default clause of this contract,
liquidated damages shall not be due the State. The contractor remains liable
for damages caused other than by delay.
4-101.06.2
In Other Situations
If the contract will not have a Termination for Default
clause or the liquidated damages are to be assessed for reasons other than
delay, the Agency Head may approve the use of any appropriate liquidated
damages clause.
4-101.07
Termination for Convenience
Clause (Optional)
TERMINATION FOR CONVENIENCE
(1)
Termination. The Procurement Officer of the [State] may, when the
interests of the [State] so require, terminate this contract in whole or in
part, for the convenience of the [State]. The Procurement Officer shall give
written notice of the termination to the contractor specifying the part of the
contract terminated and when termination becomes effective.
(2)
Contractor's
Obligations. The contractor shall incur no further obligations in
connection with the terminated work and on the date set in the notice of
termination the contractor will stop work to the extent specified. The
contractor shall also terminate outstanding orders and subcontracts as they
relate to the terminated work. The contractor shall settle the liabilities and
claims arising out of the termination of subcontracts and orders connected with
the terminated work. The Procurement Officer may direct the contractor to
assign the contractor's right, title , and interest
under the terminated orders or subcontracts to the State. The contractor must
still complete the work not terminated by the notice of termination and may
incur obligations as are necessary to do so.
