MCWT Series 28 Bonds Underwriter RFR.pdf

Request for Responses (RFR) to serve as

Senior Managing Underwriter for the Massachusetts Clean Water Trust’s Series 28 Bonds

September 1, 2026

RESPONSES DUE: September 30, 2026

CONTACT PERSON: Jonathan Maple, Procurement Manager – jmaple@tre.state.ma.us

1. Regarding this RFR. The Massachusetts Clean Water Trust (“the Trust”) requests responses from firms that are currently pre-qualified to serve as Underwriter (a “Firm” or “Firms”) for a negotiated offering for the Trust. This RFR will be used to select a book-running senior manager and to assist the Trust in its selection of a syndicate for the Series 28 Green Bonds with an expected new money par amount of $400 million. This offering is tentatively scheduled to price and close in February 2027. At this time, the Trust does not anticipate issuing any refunding bonds as part of this transaction.

The book-running senior manager will be selected based on the Firm’s ability to meet the Trust’s needs and achieve the Trust’s goals, while considering the quality, clarity, and extent of ideas and analyses presented and the experience of the team of individuals committed to the transaction. The Trust intends to select one book-running senior manager, one or more co-senior manager(s), and one or more co-manager(s) from the responding Firms.

The Trust reserves the right to include or exclude any Firms and to place such included Firms in any syndicate position it deems appropriate, at its discretion. Any such decisions will be made based on the responses to this RFR and any other factors the Trust determines to be pertinent. Issuance of this RFR in no way constitutes a commitment by the Trust to award a contract. The Trust reserves the right to issue all, some, or none of the indicated par amounts on a negotiated basis. The Trust also reserves the right to select one or more syndicates from the RFR, depending on the actual series of bonds it issues.

Firms wishing to be considered solely for a co-manager position should only complete the Co-Manager Response link in Section 13: Co-Managers’ Strategies. All other Firms should respond to the questions in Section 12, as well as provide references pursuant to Section 14. Firms will automatically be considered for co-senior or co-manager positions in addition to book-running senior manager.

Please note that any Firm selected as book-running senior manager may be asked to underwrite, on a sole basis, significant unsold balances for the purpose of ensuring fair pricing for the Trust across all maturities. The Trust requires that all Firms responding as book-running senior managers maintain an expectation that this could be the case and demonstrate a willingness and capacity to meet those needs as necessary.

2. Minimum Qualifications. Firms submitting proposals to this RFR must be currently pre-qualified to serve as Underwriter for a negotiated offering for the Commonwealth and must be in compliance with the Minimum Qualifications detailed in Appendix A, including the requirement to submit to the State Treasurer’s Office annually an updated Legal Disclosure Certification within 30 days of the end of the Commonwealth’s fiscal year end, June mailto:%E2%80%93%20jmaple@tre.state.ma.us

30. Should your situation with respect to your most recently submitted annual Legal Disclosure Certification have changed materially, please provide an updated Certification along with this RFR Response.

3. Schedule. The following is the tentative schedule for the Trust’s selection of a Firm or Firms to serve as book-running senior manager for the Trust’s Series 28 Bonds and/or refunding transaction in one or more transactions on a negotiated basis. This schedule is subject to change by the Trust.

Issuance of RFR September 1, 2026

Question Submission Deadline September 8, 2026, 1:00 pm Boston, MA time Question Response Deadline September 9, 2026 RFR Response Deadline September 30, 2026, 1:00 pm Boston, MA time Approximate Selection Date November 4, 2026

4. Terms of the Office of the State Treasurer. The terms and conditions of the State Treasurer’s Office, including all exhibits and appendices, shall apply to this RFR, and shall be used in the evaluation of responding Firms, as otherwise indicated herein

5. Scope of Services. The scope of services to be provided by the book-running senior manager, any co-senior managers, and co-managers, are those outlined in Appendix B.

6. Questions. Firms responding to this RFR that have questions related to this RFR must email their questions to jmaple@tre.state.ma.us no later than 1:00 pm, EDT on the Question Submission Deadline date of September 8, 2026. The Trust’s responses to the questions will be posted on COMMBUYS by the Question Response Deadline of September 9, 2026.

7. Communication. Firms that intend to respond to this RFR are prohibited from contacting any employee of the Trust, the Office of the State Treasurer, or the Massachusetts Department of Environmental Protection (“MassDEP”) regarding any matters related to this RFR, except the Contact Person. This prohibition will extend from the date of this RFR and continue until the selection process is concluded. In addition, this prohibition shall also apply to any employee of the Trust’s current counsel or financial advisors in relation to this RFR. Any questions, technical inquiries, or other communications related to this RFR are required to be addressed only to jmaple@tre.state.ma.us.

Failure to observe this prohibition shall be grounds for disqualification.

8. COMMBUYS. COMMBUYS, the Commonwealth’s online procurement website, is the official source of information for this RFR and is publicly accessible at no charge at www.commbuys.com. Information contained in the document and on COMMBUYS, including file attachments, and information contained in the related Questions & Answers (Q&A), are all components of the RFR, as referenced in COMMBUYS, and are incorporated into the RFR and any resulting contract.

Firms are solely responsible for obtaining all information distributed for this RFR via COMMBUYS. It is each Firm’s responsibility to check COMMBUYS for any addenda, amendments, or modifications to this RFR, and any Q&A records related to this RFR. The Trust accepts no liability and will provide no accommodation for Firms that fail to check for amended RFRs and submit inadequate or incorrect responses.

mailto:jmaple@tre.state.ma.us http://www.commbuys.com/

Firms may not alter (manually or electronically) the RFR language or any RFR component files. Modifications to the body of the RFR, its specifications, or terms and conditions, which change the intent of this RFR are prohibited and may disqualify a Response.

9. Public Records. All Responses and information submitted in response to this RFR are subject to the Massachusetts Public Records Law, Massachusetts General Law (“MGL”), Chapter 66, §10 and MGL, Chapter 4, §7, Clause Twenty-Six. Any statement in a Response that is inconsistent with the foregoing statutes is hereby rejected and will be disregarded.

10. Response Submission. Firms applying for book-running senior manager must email jmaple@tre.state.ma.us an electronic copy as a PDF file no later than 1:00 pm, Boston, MA time on the RFR Response Deadline, September 30, 2026.

a. Contents of the Response. To be considered complete, each copy of the Response must include a Cover Letter and Answers to Questions in Section 12.

b. Cover Letter. The response must include a cover letter, no longer than two pages, signed by the member of the Firm that will have the primary responsibility for the engagement (“Firm Signatory”) that includes relevant introductory information. By signing the cover letter, the Firm Signatory, on behalf of his or her Firm, irrevocably offers to provide the services envisioned by this RFR, and if selected, agrees to the terms and conditions of the Commonwealth (See Appendix C), all of which shall become a part of the contract between the Trust and the selected Firm, and certifies that the statements made and the documents included in the response are true, accurate and complete.

c. Answers to Questions. For Firms applying for book-running senior manager, the Response must include an answer to each of the questions in Section 12, within the noted page limits as well as provide references as indicated in Section 14. These Firms will also automatically be considered for co-senior manager or co-manager in addition to book-running senior manager.

Firms wishing to be considered solely for a co-manager position should only complete the Co-Manager Response link in Section 13: Co-Managers’ Strategies.

11. Procurement Management Team. The Trust’s Executive Director, Department Director and two Senior Debt

Analysts will comprise the Procurement Management Team (“PMT”) and will evaluate the Responses. The Trust’s financial advisors may provide advice to the PMT as needed in evaluating the Responses. The Trust’s Executive Director will serve as Chair of the PMT, and will make a recommendation to the Board based on the evaluation of the PMT. The Board will have final authority on the selection of the underwriting Firm(s) under this RFR. The PMT will select the Firm(s) that best meet the needs of the Trust using the Evaluation Criteria described below in Section 15.

12. Questions. Questions in this section should be answered only by Firm’s applying for book-running senior manager.

These Firms will automatically be considered for co-senior manager and co-manager roles in addition to book-running senior manager based on the quality of the Response and how it compares to other Responses. For Firms only wishing to be considered for a co-manager role in the syndicate, please respond to the Co-Manager Response link in Section 13. Please adhere to the page limits noted for each question. Please use a reasonable font size for text as well as charts and tables presented in your Response.

a. Personnel and Relevant Experience. (Limit response to two pages. Resumes may be included as an appendix). Please identify the personnel that will comprise your team. Please provide a brief description of the relevant experience of each individual including their professional background, knowledge and technical abilities, including experience with other state revolving funds (SRFs) or similar credits, the role each will serve, their title and their office location and their prior experience serving in a similar role. Highlight each specific team members’ experiences in the context of executing recent financings similar to the recommendation in your response. Describe your Firm’s experience relative to SRF bond issuances or other pooled or structured finance bond issuances sold since January 2024. Your response should be pertinent and specific to the current market environment and should provide relevant examples of transactions that you have served as book-running senior manager. Please indicate those team members who were involved with the relevant financing examples. Listing transactions in which your team participated in a role other than book-running senior manager should clearly note the role served. If you are highlighting experience serving as a joint bookrunner, please name the other firm or firms that you served with and specify the specific roles and responsibilities of each firm.

b. Recommended New Money Financing Transaction. (Limit response to three pages; any detailed cash flows or other structure schedules you may wish to provide may be included as an appendix.) Please provide a description of your recommended new money bond structure and key features of your proposal that you wish to highlight. Please be as specific as possible, including couponing and call provisions and why each attribute is best suited for the Trust. Highlight any issuance trends for similar issuers that you feel would be relevant to the Trust. Please provide your expectation of credit spreads relative to MMD for your proposed structure using MMD as of September 17, 2026, and the basis for your determination. Your recommendation should be specific and should specify the anticipated demand from investors (retail and institutional) for the structure being proposed and indicative pricing terms. Please assume a par amount of $400 million. Refer to the Trust’s website for Sources and Uses Schedules - https://www.mass.gov/info-details/reports-and-investor-resources#sources-and-use-schedules. The cash flows of the loans that will be used to size this transaction are not known at this time. Please refer to the Sources and Uses schedules for the Trust’s 27 transaction as a proxy for Series 28. For a detailed description of the Trust and its programs, see the Official Statement for the Trust’s Series 27 Bonds (https://emma.msrb.org/P11917783.pdf), the Master Trust Agreement, and other relevant materials on the Trust’s website at https://www.mass.gov/info-details/reports-and-investor-resources#bond-issuance-documents-by-series.

c. Investor and Rating Presentations (Limit response to two pages). Please provide specific recommendations on how the Trust could update its rating agency presentation and investor presentation. The investor presentation and rating presentation used for the Trust’s last bond issuance, Series 27, is included as an attachment on COMMBUYS for this procurement. Please be as specific as possible and if additional space is needed, an appendix may be added. Also, please discuss any changes your firm anticipates to the ratings criteria used by the credit rating agencies, if any. The Trust anticipates reducing the number of ratings it pursues beginning with this financing to two rather than three. The Trust currently expects it will rotate between the three each year. Please share your thoughts regarding this approach and which two you would recommend for this financing.

d. Marketing and Distribution. (Limit response to three pages).

i. Please describe your Firm’s distribution capabilities. Does your Firm have retail distribution? If yes, please describe them. If not, please describe how you plan to reach this group of investors that typically comprises a significant base of investors for the Trust’s bond issuances. What would your Firm propose https://www.mass.gov/info-details/reports-and-investor-resources#sources-and-use-schedules https://www.mass.gov/info-details/reports-and-investor-resources#sources-and-use-schedules https://emma.msrb.org/P11917783.pdf https://www.mass.gov/info-details/reports-and-investor-resources#bond-issuance-documents-by-series https://www.mass.gov/info-details/reports-and-investor-resources#bond-issuance-documents-by-series as a marketing/outreach plan for the structure proposed in b. above. Are there any changes to the Trust’s existing marketing and outreach that you would recommend? Please explain. Please highlight your Firm’s approach to targeting investors for the Trust’s transaction. Please provide relevant examples of SRF transactions that you have served as book-running senior manager that you feel demonstrates your distribution capabilities. Listings of transactions in which your team participated in a role other than book-running senior manager should clearly not the role served. If you are highlighting experience serving as a joint bookrunner, please name the other firm or firms that you served with and specify the roles and responsibilities of each. If you include orders that you placed for a transaction, please specify retail, institutional and stock orders separately and the corresponding allotments received for each category.

ii. What is your recommended syndicate structure for your proposed financing and why? Which firms from the Commonwealth’s pre-qualified list would you propose for your recommended syndicate structure? Include specific responsibilities assigned to the various firms within the syndicate. What is your proposed syndicate compensation and designation policy for this transaction? Please explain why this is your proposal.

iii. Please provide an in-depth investor analysis for the Trust which includes current holders and potential new investors. Please discuss where on the yield curve these investors have been investing in the current market. Please describe your Firm’s pre-pricing, pricing and post-pricing analysis capabilities including the types of reports your Firm can provide to the Trust to better understand investor behavior during the transaction. In addition, please discuss any software platforms or other tools your Firm utilizes to analyze investors.

iv. Discuss your timeline for the proposed transaction, assuming an anticipated February pricing and closing.

e. Contribution as Syndicate Member. (Limit response to two pages). If not selected as book-running senior manager, please discuss how your Firm approaches its role as a co-senior manager or co-manager and how the Firm measures its effectiveness in each role. Please detail your Firm’s approach to selling bonds and adding value as a syndicate co-senior manager or co-manager. Please provide specific discussions for recent similar transactions in which you served on a syndicate (be specific as to the role you served e.g., co-book-runner, co-senior manager, or co-manager), and the contributions you brought to the syndicate that demonstrates your Firm’s capabilities in those roles. If you include orders that you placed for a transaction please distinguish between retail, institutional and stock orders, and the corresponding allotments received for each category of orders.

f. Underwriting Ability. (Limit your response to two pages). Discuss your underwriting desk’s approach to pricing a bond deal. How is book-building and pricing progress communicated to the issuer? Please provide recent examples similar in credit and structure being proposed in b. above that demonstrate this approach.

Please give specific examples of recent bond deals (since January 2024) where initial pricings were either widened or tightened to best sell the issue. Specifically, in terms of retail and institutional orders, pricing progression and the basis point changes in the pricing as well as market conditions at the time of the pricing.

If available, please give recent examples of deals where your underwriting desk held the line on pricing and needed to underwrite a significant amount. What is your Firm’s policy for pushing down underwritten bonds to the syndicate?

13. Co-Managers’ Strategies (Co-Managers Only).

To respond for a role as a co-manager please only use this link https://forms.cloud.microsoft/g/u90jjMh8qD to submit your response. Completion of this form is mandatory for all co-managers, and no other form of response will be accepted. Failure to comply will result in your Firm’s ineligibility for selection into a syndicate.

By submitting this form, the Firm Signatory, on behalf of his or her Firm, irrevocably offers to provide the services envisioned by the RFR, and if selected, agrees to the terms and conditions of this RFR, all of which shall become a part of the contract between the Trust and the selected Firm, and certifies that the statements made and the information provided in the Response are true, accurate and complete.

14. References (All Respondents). List three clients that the Trust can contact as references. Briefly describe the client and its types of financings. For each reference, please provide the name, title, email address, and phone number for the appropriate contact.

15. Evaluation Criteria. The Trust is seeking detailed and responsive proposals from Firms. The PMT will evaluate Responses based on the following criteria:

a. Recommended New Money Financing Transaction. Responses should include a well-developed recommended bond structure and financing strategy designed to allow the Trust to successfully price the bonds and achieve a broad distribution. Your recommendation must include indicative couponing and spreads for the proposed transaction with a discussion as to the basis of determination. Your recommendation should specify the anticipated demand from investors (retail and institutional) for the structure being proposed. It is recommended that examples of similar recent financings that your Firm was involved with are included.

Responses that demonstrate a strong understanding of structuring a SRF financing will score well.

b. Personnel and Relevant Experience. Responses should demonstrate that the primary coverage team has the experience and expertise required to successfully execute the recommended financing transactions covered by the RFR in the current market environment. Your response should include recent relevant experience of the primary coverage team members serving as book-running senior manager with similar transactions and should demonstrate your Firm’s capabilities.

c. Investor and Rating Presentations. Relevant and actionable recommendations to the Trust’s investor presentation and rating presentation will be helpful and viewed favorably.

d. Marketing and Distribution Ability. Responses should clearly describe your Firm’s distribution capabilities.

Responses should include a detailed marketing/outreach approach for your recommended transaction.

Responses should highlight your approach to targeting investors. It is recommended that specific examples of similar SRF financings that your Firm was involved with are included in demonstrating your Firm’s distribution capabilities. Responses should recommend a syndicate structure including specific firms, proposed roles and responsibilities of syndicate members and proposed compensation and related reasoning.

Responses should include a timeline for the proposed transaction and the related rationale. Responses should describe your Firm’s pre-pricing, pricing and post-pricing analysis capabilities including the types of reports your Firm can provide to the Trust to better understand investor behavior during the transaction.

e. Underwriting Ability. The ability to and willingness of the Firm to support your proposed transaction will be considered during the PMT review and relied upon should your Firm be selected book-running senior https://forms.cloud.microsoft/g/u90jjMh8qD manager or as part of the syndicate. Responses should demonstrate the underwriter’s approach to pricing similar transactions (i.e., SRFs) as book-running senior manager and highlight his/her capabilities.

f. Co-Managers’ Evaluation Criteria. Responses must be provided through the Co-Manager Response link provided in Section 13. Responses should demonstrate your Firm’s strengths as co-manager. Response should describe your Firm’s expected contributions as a co-manager and how you measure your Firm’s effectiveness in this role. Specific examples should be provided that demonstrate your Firm’s capabilities in adding value to the syndicate in similar transactions. Your Response should demonstrate why the Trust should include your Firm in the upcoming syndicate.

g. Overall quality of the Response and any other information the Trust deems appropriate.

The Trust reserves the right to consider other factors, including information that may not be provided in the Responses if it deems the information relevant to the evaluation and selection process. The Trust reserves the right, but it is not obligated, to waive or modify any irregularities in the Responses received.

Appendix A - 1

APPENDIX A – MINIMUM QUALIFICATIONS

(sourced from the Commonwealth’s 2016 RFQ Pre-Qualification of Firms to Provide Investment Banking and Underwriting Services)

Minimum Qualifications. To be included (and then to remain) on the list of pre-qualified firms, firms must:

a. Maintain a minimum net capital of $100,000 at all times;

b. Hold and maintain at all times, all licenses and registrations required by applicable federal and state laws for businesses offering underwriting or investment banking services. All licenses and registrations must be current and in good standing with each of the following:

i. The U.S. Securities and Exchange Commission (SEC);

ii. The Financial Industry Regulatory Authority (FINRA);

iii. The Municipal Securities Rulemaking Board (MSRB); and

iv. The Massachusetts Corporations Division;

c. Submit, annually, an updated Legal Disclosure and Certification form (as indicated in Section 12) to the TRE, with any updates of material changes to the firm that will affect its ability to provide the scope of services of this RFQ. Additionally, should any material change occur, such Legal Disclosure should also be submitted within 15 calendar days of the occurrence; and

d. Maintain at all times at least one full-time professional supervisory employee with a FINRA Series 53 license (Municipal Securities Principal).

Please Note: A firm who is currently subject to any Commonwealth or federal debarment order or determination, shall not be considered for RFQ evaluation by the TRE.

Ongoing Compliance with Minimum Qualifications. To remain on the pre-qualified list, firms must meet minimum qualifications at all times. Firms are responsible for notifying the TRE if it no longer meets the minimum qualifications as listed in Section 7. Additionally, firms need to provide annual certification, as further described in Section 12, that they continue to meet the minimum requirements that are established in this document by annual submission of the annual update of their Legal Disclosure and Certification Form.

Appendix B - 1

APPENDIX B – SCOPE OF SERVICES

(sourced from the Commonwealth’s 2016 RFQ Pre-Qualification of Firms to Provide Investment Banking and Underwriting Services)

Scope of Services. The scope of services for pre-qualified firms is expected to include but is not limited to those listed below and is presented for informational purposes only. While all firms will be placed in a single pool, expectations based on eventual role (determined as a result of any Mini-RFP) is being listed below by position within a syndicate (Book-Running Senior Manager and Co-Senior Manager/Co-Manager). All pre-qualified firms will have the opportunity to be considered for any syndicate role as a part of subsequent Mini-RFP’s.

a. Book-Running Senior Manager

v. Develop and present potential financing structures (including optimal sizing considerations) and a proposed sales calendar for financings;

vi. Assist TRE and bond counsel in the preparation of legal documentation;

vii. Provide assistance in the preparation of the preliminary and final official statements for related bond issues;

viii. Participate in the TRE’s solicitation of credit ratings;

ix. In consultation with TRE, propose, develop and implement a detailed marketing plan for the bond sale. This includes, but is not limited to, preparation of and participation in investor presentations, identification of potential investors, and individual and/or group investor meetings and calls;

x. Provide investor feedback on pricing, structure, and reverse inquiry;

xi. Prepare and deliver preliminary pricing information to TRE prior to the scheduled sale;

xii. Actively engage and manage all members of the syndicate in accordance with TRE’s stated financing objectives;

xiii. Follow TRE’s debt management policies and procedures (either oral or written) for liability, designation procedures, pricing procedures and the process of selling debt obligations;

xiv. Assist the TRE in the successful structuring, marketing, and sale of debt obligations to achieve its goals of attaining lowest possible borrowing cost and expansion of the Commonwealth’s investor base;

xv. Without the use of member orders, underwrite bonds, if necessary, for the purpose of enabling an orderly pricing and to meet TRE’s overall pricing goals; and

xvi. Assist TRE in the post-financing evaluation process including the timely submittal of all required reports.

b. Co-Senior Manager/Co-Manager

xvii. Participate, if requested, in informational and due diligence meetings;

xviii. Respond to requests from the Book-Running Senior Manager regarding preliminary pricing information, including but not limited to, estimated interest rate scale detailing rates and yields;

xix. Provide investor feedback on pricing, structure, and reverse inquiry;

xx. Assist TRE in the successful marketing and sale of the debt obligations to achieve the lowest possible borrowing costs, particularly in those targeted sectors or unique subject areas assigned by TRE prior to the financing; and

xxi. Follow TRE’s debt management policies and procedures (either oral or written) for liability, designation procedures, pricing procedures and the process of selling debt obligations.

Appendix C - 1

APPENDIX C – COMMONWEALTH TERMS AND CONDITIONS

COMMONWEALTH TERMS AND CONDITIONS

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

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

Finance (ANF), the Office of the Comptroller (CTR) and the Operational Services Division (OSD) for use by all Commonwealth of Massachusetts (“State”) Departments and Contractors. Any changes or electronic alterations by either the Department or the Contractor to the official version of this form, as jointly published by ANF, CTR and OSD, shall be void. Upon execution of the Standard Contract Form these Commonwealth Terms and Conditions will be incorporated by reference. Performance shall include services rendered, obligations due, costs incurred, commodities and deliverables provided and accepted by the Department, programs provided or other commitments authorized under a Contract. A deliverable shall include any tangible product to be delivered as an element of performance under a Contract. The Commonwealth is entitled to ownership and possession of all deliverables purchased or developed with State funds. Contract shall mean the Standard Contract Form issued jointly by ANF, CTR and OSD.

1. Contract Effective Start Date. Notwithstanding verbal or other representations by the parties, the effective start date of performance under a Contract shall be the later of the date the Contract was executed by an authorized signatory of the Contractor, the date the Contract was executed by an authorized signatory of the Department, the date specified in the Contract, or the date of any approvals required by law or regulation.

2. Payments And Compensation. The Contractor shall only be compensated for performance delivered and accepted by the Department in accordance with the specific terms and conditions of a Contract. All Contract payments are subject to appropriation pursuant to M.G.L. c. 29, § 26, or the availability of sufficient non-appropriated funds for the purposes of a Contract, and shall be subject to intercept pursuant to M.G.L. c. 7A, § 3 and 815 CMR 9.00. Overpayments shall be reimbursed by the Contractor or may be offset by the Department from future payments in accordance with state finance law. Acceptance by the Contractor of any payment or partial payment, without any written objection by the Contractor, shall in each instance operate as a release and discharge of the State from all claims, liabilities or other obligations relating to the performance of a Contract.

3. Contractor Payment Mechanism. All Contractors will be paid using the Comptroller’s payment system unless a different payment mechanism is required. The Contractor shall timely submit invoices and supporting documentation as prescribed in a Contract. The Department shall review and return rejected invoices within fifteen (15) days of receipt with a written explanation for rejection. Payments shall be made in accordance with the bill paying policy issued by the Office of the Comptroller and 815 CMR 4.00, provided that payment periods listed in a Contract of less than forty-five (45) days from the date of receipt of an invoice shall be effective only to enable a Department to take advantage of early payment incentives and shall not subject any payment made within the forty-five (45) day period to a penalty. The Contractor Payroll System shall be used only for Individual Contractors who have been determined to be Contract Employees as a result of the Department’s completion of an Internal Revenue Service SS-8 form in accordance with the Omnibus Budget Reconciliation Act (OBRA) 1990, and shall automatically process all state and federal mandated payroll, tax and retirement deductions.

4. Contract Termination Or Suspension. A Contract shall terminate on the date specified in a Contract, unless this date is properly amended in accordance with all applicable laws and regulations prior to this date, or unless terminated or suspended under this Section upon prior written notice to the Contractor. The Department may terminate a Contract without cause and without penalty, or may terminate or suspend a Contract if the Contractor breaches any material term or condition or fails to perform or fulfill any material obligation required by a Contract, or in the event of an elimination of an appropriation or availability of sufficient funds for the purposes of a Contract, or in the event of an unforeseen public emergency mandating immediate Department action. Upon immediate notification to the other party, neither the Department nor the Contractor shall be deemed to be in breach for failure or delay in performance due to Acts of God or other causes factually beyond their control and without their fault or negligence.

Subcontractor failure to perform or price increases due to market fluctuations or product availability will not be deemed factually beyond the Contractor’s control.

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

6. Confidentiality. The Contractor shall comply with M.G.L. c. 66A if the Contractor becomes a “holder” of “personal data”. The Contractor shall also protect the physical security and restrict any access to personal or other Department data in the Contractor’s possession, or used by the Contractor in the performance of a Contract, which shall include, but is not limited to, the Department’s public records, documents, files, software, equipment or systems.

7. Record-keeping And Retention, Inspection Of Records. The Contractor shall maintain records, books, files and other data as specified in a Contract and in such detail as shall properly substantiate claims for payment under a Contract, for a minimum retention period of six (6) years beginning on the first day after the final payment under a Contract, or such longer period as is necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving a Contract. The Department shall have access, as well as any parties identified under Executive Order 195, during the Contractor’s regular business hours and upon reasonable prior notice, to such records, including on-site reviews and reproduction of such records at a reasonable expense.

8. Assignment. The Contractor may not assign or delegate, in whole or in part, or otherwise transfer any liability, responsibility, obligation, duty or interest under a Contract, with the exception that the Contractor shall be authorized to assign present and prospective claims for money due to the Contractor pursuant to a Contract in accordance with M.G.L. c. 106, § 9-318. The Contractor must provide sufficient notice of assignment and supporting documentation to enable the Department to verify and implement the assignment. Payments to third party assignees will be processed as if such payments were being made directly to the Contractor and these payments will be subject to intercept, offset, counter claims or any other Department rights which are available to the Department or the State against the Contractor.

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

10. Affirmative Action, Non-Discrimination In Hiring And Employment. The Contractor shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted, discharged or otherwise subject to discrimination in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of their employment because of race, color, national origin, ancestry, age, sex, religion, disability, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter29/Section26 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter7A/Section3 https://www.mass.gov/regulations/815-CMR-9-debt-collection-and-intercept https://www.mass.gov/regulations/815-CMR-4-late-penalty-interest https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66A https://www.mass.gov/executive-orders/no-195-vendor-contracts https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter106/Article9/Section9-318

COMMONWEALTH TERMS AND CONDITIONS

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

11. Indemnification. Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the State, including the Department, its agents, officers and employees against any and all claims, liabilities and costs for any personal injury or property damages, patent or copyright infringement or other damages that the State may sustain which arise out of or in connection with the Contractor’s performance of a Contract, including but not limited to the negligence, reckless or intentional conduct of the Contractor, its agents, officers, employees or subcontractors. The Contractor shall at no time be considered an agent or representative of the Department or the State. After prompt notification of a claim by the State, the Contractor shall have an opportunity to participate in the defense of such claim and any negotiated settlement agreement or judgment.

The State shall not be liable for any costs incurred by the Contractor arising under this paragraph. Any indemnification of the Contractor shall be subject to appropriation and applicable law.

12. Waivers. Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver, nor in any way limit the legal or equitable remedies available to that party. No waiver by either party of any default or breach shall constitute a waiver of any subsequent default or breach.

13. Risk Of Loss. The Contractor shall bear the risk of loss for any Contractor materials used for a Contract and for all deliverables, Department personal or other data which is in the possession of the Contractor or used by the Contractor in the performance of a Contract, until possession, ownership and full legal title to the deliverables are transferred to and accepted by the Department.

14. Forum, Choice of Law And Mediation. Any actions arising out of a Contract shall be governed by the laws of Massachusetts, and shall be brought and maintained in a state or federal court in Massachusetts which shall have exclusive jurisdiction thereof. The Department, with the approval of the Attorney General’s Office, and the Contractor may agree to voluntary mediation through the Massachusetts Office of Dispute Resolution (MODR) of any Contract dispute and will share the costs of such mediation. No legal or equitable rights of the parties shall be limited by this Section.

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

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