COMMONWEALTH TERMS AND CONDITIONS
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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 these
Commonwealth Terms and Conditions by the Contractor and filing as prescribed
by the Office of the Comptroller, these Commonwealth Terms and Conditions will
be incorporated by reference into any Contract for Commodities and Services
executed by the Contractor and any State Department, in the absence of a
superseding law or regulation requiring a different Contract form. 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, or an earlier start date indicated in a Contract, the
effective start date of performance under a Contract shall be the date a Contract
has been executed by an authorized signatory of the Contractor, the Department, a
later date specified in the Contract or the date of any approvals required by law or
regulation, whichever is later.
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
Payment Voucher System unless a different payment mechanism is required. The
Contractor shall timely submit invoices (Payment Vouchers - Form PV) 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 seven (7) 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,
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.
