STANDARD CONTRACT
TERMS AND CONDITIONS FOR SERVICES 1.
ENVIRONMENTAL PROVISIONS In the performance of the Contract,
the Contractor shall minimize pollution and shall strictly comply with all
applicable environmental laws and regulations. 2.
COMPENSATION/EXPENSES The Contractor shall be required to
perform the specified services at the price(s) quoted in the Contract. All
services shall be performed within the time period(s)
specified in the Contract. The Contractor shall be compensated only for
work performed to the satisfaction of the Commonwealth. The Contractor
shall not be allowed or paid travel or per diem expenses except as
specifcally set forth in the Contract. 3.
INVOICES The Contractor shall send an
itemized invoice to the “Provide Service and Bill To” address promptly
after services are satisfactorily completed. The invoice should include
only amounts due under the Contract. The Contract inquiry number shall be
included of all invoices. 4.
PAYMENT The Commonwealth shall put forth
reasonable efforts to make payment by the required payment date. The
required payment date is: (a) the date on which payment is due under the
terms of the Contract; (b) thirty (30) days after a proper invoice
actually is received at the “Provide Service and Bill To” address if a
date on which payment is due is not specified in the Contract (a
“proper” invoice is not received until the Commonwealth accepts the
service as satisfactorily performed); or (c) the payment date specified on
the invoice if later than the dates established by (a) and (b) above.
Payment may be delayed if the payment amount on an invoice is not based
upon the price(s) as stated in the Contract. If any payment is not made
within fifteen (15) days after the required payment date, the Commonwealth
may pay interest as determined by the Secretary of Budget in accordance
with Act No. 266 of 1982 and regulations promulgated pursuant thereto.
Payment should not be construed by the Contractor as acceptance of the
service performed by the Contractor. The Commonwealth reserves the right
to conduct further testing and inspection after payment, but within a
reasonable time after performance, and to reject the service if such post
payment testing or inspection discloses a defect or a failure to meet
specifications. The Contractor agrees that the Commonwealth may set off
the amount of any state tax liability or other obligation of the
Contractor or its subsidiaries to the Commonwealth against any payments
due the Contractor under any contract with the Commonwealth. 5.
TAXES The Commonwealth is exempt from all
excise taxes imposed by the Internal Revenue Service and has accordingly
registered with the Internal Revenue Service to make tax free purchases
under Registration No. 2374001-K. The
Commonwealth is also exempt from Pennsylvania state sales tax, local sales
tax, public transportation assistance taxes and fees and vehicle rental
tax. The Department of Revenue regulations provide that exemption
certificates are not required for sales made to governmental entities and
none will be issued. 6.
PATENT, COPYRIGHT, AND TRADEMARK INDEMNITY The Contractor warrants that it is
the sole owner or author of, or has entered into a suitable legal
agreement concerning either: a) the design of any product or process
provided or used in the performance of the Contract which is covered by a
patent, copyright, or trademark registration or other right duly
authorized by state or federal law or b) any copyrighted matter in any
report document or other material provided to the commonwealth under the
contract. The Contractor shall defend any suit or proceeding brought
against the Commonwealth on account of any alleged patent, copyright or
trademark infringement in the United States of any of the products
provided or used in the performance of the Contract. This is upon
condition that the Commonwealth shall provide prompt notification in
writing of such suit or proceeding; full right, authorization and
opportunity to conduct the defense thereof; and full information and all
reasonable cooperation for the defense of same. As principles of
governmental or public law are involved, the Commonwealth may participate
in or choose to conduct, in its sole discretion, the defense of any such
action. If information and assistance are furnished by the Commonwealth at
the Contractor’s written request, it shall be at the Contractor’s
expense, but the responsibility for such expense shall be only that within
the Contractor’s written authorization. The Contractor shall indemnify and
hold the Commonwealth harmless from all damages, costs, and expenses,
including attorney’s fees that the Contractor or the Commonwealth may
pay or incur by reason of any infringement or violation of the rights
occurring to any holder of copyright, trademark, or patent interests and
rights in any products provided or used in the performance of the
Contract. If any of the
products provided by the Contractor in such suit or proceeding are held to
constitute infringement and the use is enjoined, the Contractor shall, at
its own expense and at its option, either procure the right to continue
use of such infringement products, replace them with non-infringement
equal performance products or modify them so that they are no longer
infringing. If the Contractor is unable to do any of the preceding, the
Contractor agrees to remove all the equipment or software which are
obtained contemporaneously with the infringing product, or, at the option
of the Commonwealth, only those items of equipment or software which are
held to be infringing, and to pay the Commonwealth: 1) any amounts paid by
the Commonwealth towards the purchase of the product, less straight line
depreciation; 2) any license fee paid by the Commonwealth for the use of
any software, less an amount for the period of usage; and 3) the pro rata
portion of any maintenance fee representing the time remaining in any
period of maintenance paid for. The obligations of the Contractor under
this paragraph continue without time limit.
No costs or expenses shall be incurred for the account of the
Contractor without its written consent. 7.
OWNERSHIP RIGHTS The Commonwealth shall have
unrestricted authority to reproduce, distribute, and use any submitted
report, data, or material, and any software or modifications and any
associated documentation that is designed or developed and delivered to
the Commonwealth as part of the performance of the Contract. 8.
ASSIGNMENT OF ANTITRUST CLAIMS The Contractor and the Commonwealth
recognize that in actual economic practice, overcharges by the
Contractor’s suppliers resulting from violations of state or federal
antitrust laws are in fact borne by the Commonwealth. As part of the
consideration for the award of the Contract, and intending to be legally
bound, the Contractor assigns to the Commonwealth all right, title and
interest in and to any claims the Contractor now has, or may acquire,
under state or federal antitrust laws relating to the products and
services which are the subject of this Contract. 9.
AUDIT PROVISIONS The Commonwealth shall have the
right, at reasonable times and at a site designated by the Commonwealth,
to audit the books, documents and records of the Contractor to the extent
that the books, documents and records relate to costs or pricing data for
the Contract. The Contractor agrees to maintain records which will support
the prices charged and costs incurred for the Contract. The Contractor shall preserve
books, documents, and records that relate to costs or pricing data for the
Contract for a period of three (3) years from date of final payment. The
Contractor shall give full and free access to all records to the
Commonwealth and/or their authorized representatives. 10.
DEFAULT a. The Commonwealth may,
subject to the provisions of Paragraph 18, Force Majeure, and in addition
to its other rights under the Contract, declare the Contractor in default
by written notice thereof to the Contractor, and terminate (as provided in
Paragraph 19, Termination Provisions) the whole or any part of this
Contract for any of the following reasons: 1) Failure to begin work
within the time specified in the Contract or as otherwise specified; 2) Failure to perform
the work with sufficient labor, equipment, or material to insure the
completion of the specified work in accordance with the Contract terms ; 3) Unsatisfactory
performance of the work; 4) Failure or refusal to
remove material, or remove and replace any work rejected as defective or
unsatisfactory; 5) Discontinuance of
work without approval; 6) Failure to resume
work, which has been discontinued, within a reasonable time after notice
to do so; 7) Insolvency or
bankruptcy; 8) Assignment made for
the benefit of creditors; 9) Failure or refusal
within 10 days after written notice by the Contracting Officer, to make
payment or show cause why payment should not be made, of any amounts due
for materials furnished, labor supplied or performed, for equipment
rentals, or for utility services rendered; 10) Failure to protect, to
repair, or to make good any damage or injury to property; or 11) Breach of any provision of
this Contract. b. In the event that the
Commonwealth terminates this Contract in whole or in part as provided in
Subparagraph a. above, the Commonwealth may procure, upon such terms and
in such manner as it determines, services similar or identical to those so
terminated, and the Contractor shall be liable to the Commonwealth for any
reasonable excess costs for such similar or identical services included
within the terminated part of the Contract. c. If the Contract is
terminated as provided in Subparagraph a. above, the Commonwealth, in
addition to any other rights provided in this paragraph, may require the
Contractor to transfer title and deliver immediately to the Commonwealth
in the manner and to the extent directed by the Issuing Office, such
partially completed work, including, where applicable, reports, working
papers and other documentation, as the Contractor has specifically
produced or specifically acquired for the performance of such part of the
Contract as has been terminated. Except as provided below, payment for
completed work accepted by the Commonwealth shall be at the Contract
price. Except as provided below, payment for partially completed work
including, where applicable, reports and working papers, delivered to and
accepted by the Commonwealth shall be in an amount agreed upon by the
Contractor and Contracting Officer. The Commonwealth may withhold from
amounts otherwise due the Contractor for such completed or partially
completed works, such sum as the Contracting Officer determines to be
necessary to protect the Commonwealth against loss. d. The rights and
remedies of the Commonwealth provided in this paragraph shall not be
exclusive and are in addition to any other rights and remedies provided by
law or under this Contract. e. The Commonwealth’s
failure to exercise any rights or remedies provided in this paragraph
shall not be construed to be a waiver by the Commonwealth of its rights
and remedies in regard to the event of default or any succeeding event of
default. f. Following
exhaustion of the Contractor’s administrative remedies as set forth in
Paragraph 20, the Contractor's exclusive remedy shall be to seek damages
in the Board of Claims. 11.
FORCE MAJEURE Neither party will incur any
liability to the other if its performance of any obligation under this
Contract is prevented or delayed by causes beyond its control and without
the fault or negligence of either party. Causes beyond a party’s control
may include, but are not limited to, acts of God or war, changes in
controlling law, regulations, orders or the requirements of any
governmental entity, severe weather conditions, civil disorders, natural
disasters, fire, epidemics and quarantines, general strikes throughout the
trade, and freight embargoes. The Contractor shall notify the
Commonwealth orally within five (5) days and in writing within ten (10)
days of the date on which the Contractor becomes aware, or should have
reasonably become aware, that such cause would prevent or delay its
performance. Such
notification shall (i) describe fully such cause(s) and its effect on
performance, (ii) state whether performance under the contract is
prevented or delayed and (iii) if performance is delayed, state a
reasonable estimate of the duration of the delay. The Contractor shall
have the burden of proving that such cause(s) delayed or prevented its
performance despite its diligent efforts to perform and shall produce such
supporting documentation as the Commonwealth may reasonably request. After
receipt of such notification, the Commonwealth may elect either to cancel
the Contract or to extend the time for performance as reasonably necessary
to compensate for the Contractor’s delay. In the event of a declared emergency
by competent governmental authorities, the Commonwealth by notice to the
Contractor, may suspend all or a portion of the Contract. 12.
TERMINATION PROVISIONS The Commonwealth has the right to
terminate this Contract for any of the following reasons. Termination
shall be effective upon written notice to the Contractor. a. TERMINATION FOR CONVENIENCE: The
Commonwealth shall have the right to terminate the Contract for its
convenience if the Commonwealth determines termination to be in its best
interest. The Contractor shall be paid for work satisfactorily completed
prior to the effective date of the termination, but in no event shall the
Contractor be entitled to recover loss of profits. b. NON-APPROPRIATION: The
Commonwealth’s obligation to make payments during any Commonwealth
fiscal year succeeding the current fiscal year shall be subject to
availability and appropriation of funds. When funds (state and/or federal)
are not appropriated or otherwise made available to support continuation
of performance in a subsequent fiscal year period, the Commonwealth shall
have the right to terminate the contract. The contractor shall be
reimbursed for the reasonable value of any nonrecurring costs incurred but
not amortized in the price of the supplies or services delivered under
this contract. Such reimbursement shall not include loss of profit, loss
of use of money, or administrative or overhead costs. The reimbursement
amount may be paid from any appropriations available for that purpose. c. TERMINATION FOR CAUSE: The
Commonwealth shall have the right to terminate the Contract for Contractor
default under Paragraph 17, Default, upon written notice to the
Contractor. The Commonwealth shall also have the right, upon written
notice to the Contractor, to terminate the Contract for other cause as
specified in this Contract or by law. If it is later determined that the
Commonwealth erred in terminating the Contract for cause, then, at the
Commonwealth’s discretion, the Contract shall be deemed to have been
terminated for convenience under the Subparagraph 19.a. 13.
CONTRACT CONTROVERSIES In the event of a controversy or
claim arising from the Contract, the Contractor must, within six months
after the cause of action accrues, file a written notice of controversy or
claim with the Contracting Officer for a determination. The Contracting
Officer shall send his/her written determination to the Contractor. The
decision of the Contracting Officer shall be final and conclusive unless,
within thirty (30) days after receipt of such written determination, the
Contractor files a claim with the Commonwealth Board of Claims. Pending a
final judicial resolution of a controversy or claim, the Contractor shall
proceed diligently with the performance of the Contract in a manner
consistent with the interpretation of the Contracting Officer and the
Commonwealth shall compensate the Contractor pursuant to the terms of the
Contract. 14.
NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE During the term of the Contract, the
Contractor agrees as follows: a. In the hiring of any
employees for the manufacture of supplies, performance of work, or any
other activity required under the Contract or any subcontract, the
Contractor, subcontractor or any person acting on behalf of the Contractor
or subcontractor shall not by reason of gender, race, creed, or color
discriminate against any citizen of this Commonwealth who is qualified and
available to perform the work to which the employment relates. b. Neither the
Contractor nor any subcontractor nor any person on their behalf shall in
any manner discriminate against or intimidate any employee involved in the
manufacture of supplies, the performance of work or any other activity
required under the Contract on account of gender, race, creed, or color. c. The Contractor and
any subcontractors shall establish and maintain a written sexual
harassment policy and shall inform their employees of the policy. The
policy must contain a notice that sexual harassment will not be tolerated
and employees who practice it will be disciplined. d. The Contractor shall
not discriminate by reason of gender, race, creed, or color against any
subcontractor or supplier who is qualified to perform the work to which
the contract relates. e. The Contractor and
each subcontractor shall furnish all necessary employment documents and
records to and permit access to its books, records, and accounts by the
contracting officer and the Department of General Services’ Bureau of
Contract Administration and Business Development for purposes of
investigation to ascertain compliance with the provisions of this
Nondiscrimination/Sexual Harassment Clause. If the Contractor or any
subcontractor does not possess documents or records reflecting the
necessary information requested, it shall furnish such information on
reporting forms supplied by the contracting officer or the Bureau of
Contract Administration and Business Development. f. The Contractor
shall include the provisions of this Nondiscrimination/Sexual Harassment
Clause in every subcontract so that such provisions will be binding upon
each subcontractor. g. The Commonwealth may
cancel or terminate the Contract, and all money due or to become due under
the Contract may be forfeited for a violation of the terms and conditions
of this Nondiscrimination/Sexual Harassment Clause. In addition, the
agency may proceed with debarment or suspension and may place the
Contractor in the Contractor Responsibility File. 15.
CONTRACTOR INTEGRITY PROVISIONS a. For purposes of this
clause only, the words “confidential information,” “consent,”
“contractor,” “financial interest,” and “gratuity” shall have
the following definitions. 1) Confidential information means
information that is not public knowledge, or available to the public on
request, disclosure of which would give an unfair, unethical, or illegal
advantage to another desiring to contract with the Commonwealth. 2) Consent means written permission
signed by a duly authorized officer or employee of the Commonwealth,
provided that where the material facts have been disclosed, in writing, by
prequalification, bid, proposal, or contractual terms, the Commonwealth
shall be deemed to have consented by virtue of execution of this
agreement. 3) Contractor means the individual or
entity that has entered into the Contract with the Commonwealth, including
directors, officers, partners, managers, key employees and owners of more
than a five percent interest. 4) Financial interest means: a) Ownership of more
than a five percent interest in any business; or b) Holding a position as
an officer, director, trustee, partner, employee, or the like, or holding
any position of management. 5) Gratuity means any payment of more
than nominal monetary value in the form of cash, travel, entertainment,
gifts, meals, lodging, loans, subscriptions, advances, deposits of money,
services, employment, or contracts of any kind. b. The Contractor shall
maintain the highest standards of integrity in the performance of the
Contract and shall take no action in violation of state or federal laws,
regulations, or other requirements that govern contracting with the
Commonwealth. c. The Contractor shall
not disclose to others any confidential information gained by virtue of
the Contract. d. The Contractor shall
not, in connection with this or any other agreement with the Commonwealth,
directly, or indirectly, offer, confer, or agree to confer any pecuniary
benefit on anyone as consideration for the decision, opinion,
recommendation, vote, other exercise of discretion, or violation of a
known legal duty by any officer or employee of the Commonwealth. e. The Contractor shall
not, in connection with this or any other agreement with the Commonwealth,
directly or indirectly, offer, give, or agree or promise to give to anyone
any gratuity for the benefit of or at the direction or request of any officer or employee
of the Commonwealth. f. Except with the
consent of the Commonwealth, neither the Contractor nor anyone in privity
with him or her shall accept or agree to accept from, or give or agree to
give to, any person, any gratuity from any person in connection with the
performance of work under the Contract except as provided therein. g. Except with the
consent of the Commonwealth, the Contractor shall not have a financial
interest in any other contractor, subcontractor, or supplier providing
services, labor, or material on this project. h. The Contractor, upon
being informed that any violation of these provisions has occurred or may
occur, shall immediately notify the Commonwealth in writing. i. The Contractor,
by execution of the Contract and by the submission of any bills or
invoices for payment pursuant thereto, certifies, and represents that he
or she has not violated any of these provisions. j. The Contractor,
upon the inquiry or request of the Inspector General of the Commonwealth
or any of that official’s agents or representatives, shall provide, or
if appropriate, make promptly available for inspection or copying, any
information of any type or form deemed relevant by the Inspector General
to the Contractor’s integrity or responsibility, as those terms are
defined by the Commonwealth’s statutes, regulations, or management
directives. Such information may include, but shall not be limited to, the
Contractor’s business or financial records, documents or files of any
type or form which refers to or concern the Contract. Such information
shall be retained by the Contractor for a period of three years beyond the
termination of the Contract unless otherwise provided by law. k. For violation of any
of the above provisions, the Commonwealth may terminate this and any other
agreement with the Contractor, claim liquidated damages in an amount equal
to the value of anything received in breach of these provisions, claim
damages for all expenses incurred in obtaining another Contractor to
complete performance hereunder, and debar and suspend the Contractor from
doing business with the Commonwealth.
These rights and remedies are cumulative, and the use or nonuse of
any one shall not preclude the use of all or any other. These rights and remedies are in
addition to those the Commonwealth may have under law, statute,
regulation, or otherwise. 16.
CONTRACTOR RESPONSIBILITY PROVISIONS a.
The Contractor certifies, for itself and all its subcontractors,
that as of the date of its execution of this Bid/Contract, that neither
the Contractor, nor any subcontractors, nor any suppliers are under
suspension or debarment by the Commonwealth or any governmental entity,
instrumentality, or authority and, if the Contractor cannot so certify,
then it agrees to submit, along with its Bid, a written explanation of why
such certification cannot be made. b.
The Contractor also certifies, that as of the date of its execution
of this Bid/Contract, it has no tax liabilities or other Commonwealth
obligations. c.
The Contractor’s obligations pursuant to these provisions are
ongoing from and after the effective date of the contract through the
termination date thereof. Accordingly, the Contractor shall have an
obligation to inform the Commonwealth if, at any time during the term of
the Contract, it becomes delinquent in the payment of taxes, or other
Commonwealth obligations, or if it or any of its subcontractors are
suspended or debarred by the Commonwealth, the federal government, or any
other state or governmental entity. Such notification shall be made within
15 days of the date of suspension or debarment. d.
The failure of the Contractor to notify the Commonwealth of its
suspension or debarment by the Commonwealth, any other state, or the
federal government shall constitute an event of default of the Contract
with the Commonwealth. e.
The Contractor agrees to reimburse the Commonwealth for the
reasonable costs of investigation incurred by the Office of State
Inspector General for investigations of the Contractor’s compliance with
the terms of this or any other agreement between the Contractor and the
Commonwealth, which results in the suspension or debarment of the
Contractor. Such costs shall include, but shall not be limited to,
salaries of investigators, including overtime; travel and lodging
expenses; and expert witness and documentary fees. The Contractor shall
not be responsible for investigative costs for investigations that do not
result in the Contractor’s suspension or debarment. f.
The Contractor may obtain a current list of suspended and debarred
Commonwealth contractors by either searching the internet at http://www.dgs.state.pa.us/debarment.htm
or contacting the: Department of General Services 17.
AMERICANS WITH DISABILITIES ACT a.
Pursuant to federal regulations promulgated under the authority of
The Americans With Disabilities Act, 28 C.F.R. § 35.101 et seq., the
Contractor understands and agrees that it shall not cause any individual
with a disability to be excluded from participation in this Contract or
from activities provided for under this Contract on the basis of the
disability. As a condition of accepting this contract, the Contractor
agrees to comply with the “General Prohibitions Against
Discrimination,” 28 C.F.R. § 35.130, and all other regulations
promulgated under Title II of The Americans With Disabilities Act which
are applicable to all benefits, services, programs, and activities
provided by the Commonwealth of Pennsylvania through contracts with
outside contractors. b.
The Contractor shall be responsible for and agrees to indemnify and
hold harmless the Commonwealth of Pennsylvania from all losses, damages,
expenses, claims, demands, suits, and actions brought by any party against
the Commonwealth of Pennsylvania as a result of the Contractor’s failure
to comply with the provisions of subparagraph a above. 18.
COVENANT AGAINST CONTINGENT FEES The Contractor warrants that no
person or selling agency has been employed or retained to solicit or
secure the Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, except bona fide employees or
bona fide established commercial or selling agencies maintained by the
Contractor for the purpose of securing business. For breach or violation
of this warranty, the Commonwealth shall have the right to terminate the
Contract without liability or in its discretion to deduct from the
Contract price or consideration, or otherwise recover the full amount of
such commission, percentage, brokerage, or contingent fee. 19.
INTEGRATION The Contract, including all
referenced documents, constitutes the entire agreement between the
parties. No agent, representative, employee or officer of either the
Commonwealth or the Contractor has authority to make, or has made, any
statement, agreement or representation, oral or written, in connection
with the Contract, which in any way can be deemed to modify, add to or
detract from, or otherwise change or alter its terms and conditions. No
negotiations between the parties, nor any custom or usage, shall be
permitted to modify or contradict any of the terms and conditions of the
Contract. No modifications, alterations, changes, or waiver to the
Contract or any of its terms shall be valid or binding unless accomplished
by a written amendment signed by both parties. All such amendments will be
made using the appropriate Commonwealth form. g:\contract\stndrd k terms
& condition.iaa.doc
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