Attachment F - form commonwealth-terms-and-conditions.pdf

COMMONWEALTH TERMS AND CONDITIONS

Page 1 of 2. TC Issued 10/25/19Pag

This Commonwealth Terms and Conditions form is jointly j y issued by the Executive Office for Administration and y

Finance (ANF), the Office of the Comptroller (CTR) and the Operational ( ), p ( ) p Services Division (OSD) for use by all Commonwealth of Massachusetts ( ) y (“State”) Departments and Contractors. Any changes or electronic alterations ( ) p y g by either the Department or the Contractor to the official version of this form, y p ff as jointly published by ANF, CTR and OSD, shall be void.

f f , d.d Upon execution of j y p y , , p the Standard Contract Form these Commonwealth Terms and Conditions will be incorporated by reference. Performance shall include services rendered, p y , obligations due, costs incurred, commodities and deliverables provided and g , , p accepted by the Department, programs provided or other commitments p y p , p g p authorized under a Contract. A deliverable shall include any tangible product to y g p be delivered as an element of performance under a Contract pp cc .

p ctct. The p

Commonwealth is entitled to ownership and possession of all deliverables p p purchased or developed with State funds. Contractctcttt shall mean the Standard p p Contract Form issued jointly by ANF, CTR and OSD.

1.

j y y , Contract Effective Start Date.

e.e Notwithstanding verbal or other ff gff representations by the parties, the effective start date of performance under a p y p , p Contract shall be the later of the date the Contract was executed by an authorized y signatory of the Contractor, the date the Contract was executed by an authorized g y , y signatory of the Department, the date specified in the Contract, or the date of any g y p , p approvals required by law or regulation.pp 2.

q y gpp

2.2 Payments And Compensation.

g n.n The Contractor shall only be compensated for y p y py p performance delivered and accepted by the Department in accordance with the p p y p specific terms and conditions of a Contract. All Contract payments are subject p to appropriation pursuant to o o M.G.L. c. 29, § 26 p y j 2626, or the availability of sufficient ,, §§ ,pp p p y,,, §§ , non-appropriated funds for the purposes of a Contract, and shall be subject to pp p intercept pursuant to p p oo M.G.L. c. 7A, § 333 and d d 815 CMR 9.00 j 0000. Overpayments shall ,, §§p p p y,,, §§§ be reimbursed by the Contractor or may be offset by the Department from future y y y p payments in accordance with state finance law. Acceptance by the Contractor p y p y of any payment or partial payment, without any written objection by the y p y p p y , y j y Contractor, shall in each instance operate as a release and discharge of the State , p g from all claims, liabilities or other obligations relating to the performance of a Contract.

3. . Contractor Payment Mechanismm. All Contractors will be paid using the y p gyy Comptroller’s payment system unless a different payment mechanism is p p y y p y required. The Contractor shall timely submit invoices and supporting q y pp g documentation as prescribed in a Contract. The Department shall review and p p return rejected invoices within fifteen (15) days of receipt with a written j ( ) y p explanation for rejection. Payments shall be made in accordance with the bill p j y paying policy issued by the Office of the Comptroller and d d 815 CMR 4.000000, ,p y g p y y p ,, provided that payment periods listed in a Contract of less than forty-five (45) p p y p y ( ) days from the date of receipt of an invoice shall be effective only to enable a y p y Department to take advantage of early payment incentives and shall not subject p g y p y j any payment made within the forty-five (45) day period to a penalty. The y p y y ( ) y p p y Contractor Payroll System shall be used only for Individual Contractors who y y y have been determined to be Contract Employees as a result of the Department’s p y p completion of an Internal Revenue Service SS-8 form in accordance with the p Omnibus Budget Reconciliation Act (OBRA) 1990, and shall automatically g ( ) , y process all state and federal mandated payroll, tax and retirement deductions.p 4.

p p ypp

4.4 Contract Termination Or Suspension

,p y onon. A Contract shall terminate on the date pp specified in a Contract, unless this date is properly amended in accordance with p , p p y all applicable laws and regulations prior to this date, or unless terminated or pp g p , suspended under this Section upon prior written notice to the Contractor. The p p p Department may terminate a Contract without cause and without penalty, or may p y p y, y terminate or suspend a Contract if the Contractor breaches any material term or p y condition or fails to perform or fulfill any material obligation required by a p y g q y Contract, or in the event of an elimination of an appropriation or availability of , pp p y sufficient funds for the purposes of a Contract, or in the event of an unforeseen public emergency mandating immediate Department action. Upon immediate p g y g p p notification to the other party, neither the Department nor the Contractor shall be p y, p deemed to be in breach for failure or delay in performance due to Acts of God or y p other causes factually beyond their control and without their fault or negligence. y y g g Subcontractor failure to perform or price increases due to market fluctuations or p p product availability will not be deemed factually beyond the Contractor’s p control.

5. . Written Noticece. Any notice shall be deemed delivered and received when y submitted in writing in person or when delivered by any other appropriate g p y y pp p method evidencing actual receipt by the Department or the Contractor. Any g p y p y written notice of termination or suspension delivered to the Contractor shall state p the effective date and period of the notice, the reasons for the termination or p , suspension, if applicable, any alleged breach or failure to perform, a reasonable p , pp , y g p , period to cure any alleged breach or failure to perform, if applicable, and any p y g p , pp , y instructions or restrictions concerning allowable activities, costs or expenditures g by the Contractor during the notice period.y 6.

y Confidentiality g p tyty. The Contractor shall comply with h M.G.L. c. 66AA if the f y p yf y

Contractor becomes a “holder” of “personal data”. The Contractor shall also p protect the physical security and restrict any access to personal or other p p y y y p Department data in the Contractor’s possession, or used by the Contractor in the p p , y performance of a Contract, which shall include, but is not limited to, the p , , , Department’s public records, documents, files, software, equipment or systems.p 7.77 p p , , , , qppp

7.7 Record-keeping And Retention, Inspection Of Records.

p yq ds.ds The Contractor shall p g , p fp g p f maintain records, books, files and other data as specified in a Contract and in , , p such detail as shall properly substantiate claims for payment under a Contract, p p y p y , for a minimum retention period of six (6) years beginning on the first day after p ( ) y g g y the final payment under a Contract, or such longer period as is necessary for the p y , g p y resolution of any litigation, claim, negotiation, audit or other inquiry involving a y g , , g , q y g Contract. The Department shall have access, as well as any parties identified under p r r Executive Order 195

, y p 9595, during the Contractor’s regular business hours and , g g,, upon reasonable prior notice, to such records, including on-site reviews and p p , , reproduction of such records at a reasonable expense.p 8.8.8 pp . Assignment p ntntt. The Contractor may not assign or delegate, in whole or in part, g y g g , p ,g or otherwise transfer any liability, responsibility, obligation, duty or interest y y, p y, g , y under a Contract, with the exception that the Contractor shall be authorized to , p assign present and prospective claims for money due to the Contractor pursuant g p p p to a Contract in accordance with y h h M.G.L. c. 106, § 9-318 p 1818. The Contractor must ,, §§,, §§ provide sufficient notice of assignment and supporting documentation to enable p g pp g the Department to verify and implement the assignment. Payments to third party p y p g y p y assignees will be processed as if such payments were being made directly to the g p p y g y Contractor and these payments will be subject to intercept, offset, counter claims p y j p , , or any other Department rights which are available to the Department or the State y p against the Contractor.g 9.

gg Subcontracting By Contractor.r. Any subcontract entered into by the g y y yg y

Contractor for the purposes of fulfilling the obligations under a Contract must be p p g g in writing, authorized in advance by the Department and shall be consistent with g, y p and subject to the provisions of these Commonwealth Terms and Conditions and j p a Contract. Subcontracts will not relieve or discharge the Contractor from any g y duty, obligation, responsibility or liability arising under a Contract. The y, g , p y y g Department is entitled to copies of all subcontracts and shall not be bound by p p any provisions contained in a subcontract to which it is not a party.y p 10.

p yy p

0.0 Affirmative Action, Non-Discrimination In Hiring And Employment.nt. The ff ,f g p yfff g p y

Contractor shall comply with all federal and state laws, rules and regulations p y , g promoting fair employment practices or prohibiting employment discrimination p g p y p p g p y and unfair labor practices and shall not discriminate in the hiring of any applicant p g y pp for employment nor shall any qualified employee be demoted, discharged or p y y q p y , g otherwise subject to discrimination in the tenure, position, promotional j , p , p opportunities, wages, benefits or terms and conditions of their employment pp , g , p y because of race, color, national origin, ancestry, age, sex, religion, disability, COMMONWEALTH TERMS AND CONDITIONS

Page 2 of 2. TC Issued 10/25/19Pag handicap, sexual orientation or for exercising any rights p, g y g afforded by law. The Contractor commits to purchasing y p g supplies and services from certified minority or women-pp y owned businesses, small businesses or businesses owned by socially or , y economically disadvantaged persons or persons with disabilities.

11.

y . Indemnification.

g p p n.n Unless otherwise exempted by law, the Contractor shall f p y ,f indemnify and hold harmless the State, including the Department, its agents, y , g p , g , officers and employees against any and all claims, liabilities and costs for any p y g y , y personal injury or property damages, patent or copyright infringement or other p j y p p y g , p py g g damages that the State may sustain which arise out of or in connection with the g y Contractor’s performance of a Contract, including but not limited to the p , g negligence, reckless or intentional conduct of the Contractor, its agents, officers, g g , , g , , employees or subcontractors. The Contractor shall at no time be considered an p y agent or representative of the Department or the State. After prompt notification g p p p p of a claim by the State, the Contractor shall have an opportunity to participate in y , pp y p p the defense of such claim and any negotiated settlement agreement or judgment. y g g j g The State shall not be liable for any costs incurred by the Contractor arising under y y g this paragraph. Any indemnification of the Contractor shall be subject to p g p y appropriation and applicable law.pp ppp 1212. Waivers pp rsrs. Forbearance or indulgence in any form or manner by a party shall g y y p y not be construed as a waiver, nor in any way limit the legal or equitable remedies , y y g q available to that party. No waiver by either party of any default or breach shall p y y p y y constitute a waiver of any subsequent default or breach.

13. . Risk Of Loss.

y q s.s The Contractor shall bear the risk of loss for any Contractor f yf materials used for a Contract and for all deliverables, Department personal or , p p other data which is in the possession of the Contractor or used by the Contractor p y in the performance of a Contract, until possession, ownership and full legal title p , p , p g to the deliverables are transferred to and accepted by the Department.

14.

p Forum, Choice of Law And Mediation.

y pp n.n Any actions arising out of a , f y gf, f

Contract shall be governed by the laws of Massachusetts, and shall be brought g y , g and maintained in a state or federal court in Massachusetts which shall have exclusive jurisdiction thereof. The Department, with the approval of the j p , pp Attorney General’s Office, and the Contractor may agree to voluntary mediation y , y g y through the Massachusetts Office of Dispute Resolution (MODR) of any g p ( ) y Contract dispute and will share the costs of such mediation. No legal or equitable p rights of the parties shall be limited by this Section.g 15.

p y . Contract Boilerplate Interpretation, Severability, Conflicts With Law, p p , y, f , Integration.

p p , y, f , n.n Any amendment or attachment to any Contract which contains g y yg conflicting language or has the effect of a deleting, replacing or modifying any g g g g, p g y g y printed language of these Commonwealth Terms and Conditions, as officially p g g , y published by ANF, CTR and OSD, shall be interpreted as superseded by the p y , , p p y official printed language. If any provision of a Contract is found to be p g g y p superseded by state or federal law or regulation, in whole or in part, then both p y g , p , parties shall be relieved of all obligations under that provision only to the extent p g p y necessary to comply with the superseding law; provided however, that the y p y p g ; p , remaining provisions of the Contract, or portions thereof, shall be enforced to g p , p , the fullest extent permitted by law. All amendments must be executed by the p y y parties in accordance with Section 1 of these Commonwealth Terms and p Conditions and filed with the original record copy of a Contract as prescribed by g py p y CTR. The printed language of the Standard Contract Form, as officially p g g , y published by ANF, CTR and OSD, which incorporates by reference these p y , , p y Commonwealth Terms and Conditions, shall supersede any conflicting verbal or , p y g written agreements relating to the performance of a Contract, or attached thereto, g g p , , including contract forms, purchase orders or invoices of the Contractor. The g , p order of priority of documents to interpret a Contract shall be as follows: the p y p printed language of the Commonwealth Terms and Conditions, the Standard p g g , Contract Form, the Department’s Request for Response (RFR) solicitation , p q p ( ) document and the Contractor’s Response to the RFR solicitation, excluding any p , g y language stricken by a Department as unacceptable and including any negotiated g g y p p g terms and conditions allowable pursuant to law or regulation.

IN WITNESS WHEREOF, the Contractor certifies under the pains and , p penalties of perjury that it shall comply with these Commonwealth Terms p p j y p y and Conditions for any applicable Contract executed with the y pp Commonwealth as certified by their authorized signatory signing the Standard Contract Form.