The following contract clauses should be used as required by
the Personal Service Contract Review Board Rules and
Regulations and at the discretion of the Agency Head. In addition to
these clauses, see Appendices C (Required Clauses in Contract for Services), D
(Required Clauses in IFBs, RFPs, and RFQs), E (Clauses Available for Use in
Service Contracts), and F (Clauses Available for Use in Solicitations for Bids,
Proposals, or Statements of Qualifications) 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
(Required)
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 (Required)
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.
