-
- Chancellor
- Academic Affairs
- Administration and Finance
- Advancement
- Communications
- Councils & Workgroups
- Internal Audit
- Government Relations
- Procurement
- Legislative Testimony
- Employment
- Directions to the USM System Office
- System Office Staff Directory
- Organizational Chart
- Organizational Chart of Institutions
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APPENDIX A - TERMS AND CONDITIONS
A. Mandatory Terms and Conditions of Written Solicitations
Under $100,000
Content. The invitation for bids shall include the
following:
1. A description of the items requested.
2. Time, date, place and form of response requested.
3. The basis for evaluation and award.
4. The name and telephone number of the procurement
officer to whom inquires regarding the solicitation
may be directed.
B. Mandatory Terms and Conditions of Written Solicitations
Over $100,000
1. Instructions and information to vendors concerning
the solicitation requirements, including the time and
date set for receipt of the responses and the address
where responses are to be delivered;
2. The purchase description, delivery or performance
schedule, and any special instructions necessary.
3. Whether award shall be made on the basis of the most
favorable price or the most favorable evaluated
price, or best value, whichever is applicable. If the
latter basis is used, measurable evaluation criteria
to be used shall be set forth in the solicitation.
4. Acknowledgment of Addenda. The solicitation shall
require the acknowledgment of the receipt of all
changes issued.
5. Public Information Act Notice.
A public information act notice is a mandatory
provision for all solicitations. The following notice
is preferred:
"Offerors should give specific attention to the
identification of those portions of their responses
that they deem to be confidential, proprietary
information or trade secrets and provide any jus
tification why such materials, upon request, should
not be disclosed by the University under the Access
to Public Records Act, State Government Article,
Title 10, Subtitle 6, Annotated Code of Maryland."
6. Bid/Proposal Security.
a. Solicitations for construction contracts
reasonably expected by the procurement officer
to exceed $100,000 shall contain notice of bid
security requirements.
b. Solicitations for all other contracts reasonably
expected by the procurement officer to exceed
$100,000 and for which the procurement officer
wishes to require bid security shall contain
notice of the bid security requirements.
c. Notwithstanding §§A and B of this regulation,
notice of bid security is required if a federal
law or a condition of federal assistance for the
contract requires it.
7. Minority Business Enterprise Notice.
A minority business enterprise notification is a
mandatory provision for all solicitations as follows:
"Minority business enterprises are encouraged to
respond to this solicitation".
8. Arrearages.
An arrearages clause is a mandatory provision for all
solicitations. The language may be varied but shall
contain the following information:
"By submitting a response to this solicitation, a
vendor shall be deemed to represent that it is not in
arrears in the payment of any obligation due and
owing the State of Maryland, including the payment of
taxes and employee benefits, and that it shall not
become so in arrears during the term of the contract
if selected for contract award."
9. Bid/Proposal Affidavit.
Each solicitation shall provide notice that the
affidavit prescribed below shall be completed and
submitted to the procurement officer.
Bid or Proposal Affidavit
A. AUTHORIZED REPRESENTATIVE
I HEREBY AFFIRM THAT:
I am the (title) ____________________________ and the duly
authorized representative of (business)
__________________________________________________________ and
that I possess the legal authority to make this Affidavit on
behalf of myself and the business for which I am acting.
B. AFFIRMATION REGARDING BRIBERY CONVICTIONS
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information,
and belief, the above business (as is defined in Section
16-101(b) of the State Finance and Procurement Article of the
Annotated Code of Maryland), or any of its officers, directors,
partners, or any of its employees directly involved in
obtaining or performing contracts with public bodies (as is
defined in Section 16-101(f) of the State Finance and Pro
curement Article of the Annotated Code of Maryland), has been
convicted of, or has had probation before judgment imposed
pursuant to Article 27, Section 641 of the Annotated Code of
Maryland, or has pleaded nolo contendere to a charge of,
bribery, attempted bribery, or conspiracy to bribe in violation
of Maryland law, or of the law of any other state or federal
law, except as follows:
(indicate the reasons why the affirmation cannot be given
and list any conviction, plea, or imposition of probation
before judgment with the date, court, official or
administrative body, the sentence or disposition, the name(s)
of person(s) involved, and their current positions and
responsibilities with the business):
_______________________________________________________________
_______________________________________________________________
C. AFFIRMATION REGARDING OTHER CONVICTIONS
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information,
and belief, the above business, or any of its officers,
directors, partners, or any of its employees directly involved
in obtaining or performing contracts with public bodies, has:
(a) Been convicted under state or federal statute of a
criminal offense incident to obtaining, attempting to
obtain, or performing a public or private contract, fraud,
embezzlement, theft, forgery, falsification or destruction
of records, or receiving stolen property;
(b) Been convicted of any criminal violation of a state
or federal antitrust statute;
c) Been convicted under the provisions of Title 18 of the
United States Code for violation of the Racketeer
Influenced and Corrupt Organization Act, 18 U.S.C. § 1961,
et seq., or the Mail Fraud Act, 18 U.S.C.§ 1341, et seq.,
for acts arising out of the submission of bids or proposals
for a public or private contract;
(d) Been convicted of a violation of the State Minority
Business Enterprise Law, Section 14-308 of the State Finance
and Procurement Article of the Annotated Code of Maryland;
(e) Been convicted of conspiracy to commit any act or
omission that would constitute grounds for conviction or
liability under any law or statute described in subsection
(a), (b), (c), or (d) above;
(f) Been found civilly liable under a state or federal
antitrust statute for acts or omissions in connection with
the submission of bids or proposals for a public or private
contract;
(g) Admitted in writing or under oath, during the course of
an official investigation or other proceedings, acts or
omissions that would constitute grounds for conviction or
liability under any law or statute described above, except
as follows:
(indicate reasons why the affirmations cannot be given,
and list any conviction, plea, or imposition of probation
before judgment with the date, court, official or
administrative body, the sentence or disposition, the name(s)
of the person(s) involved and their current positions and
responsibilities with the business, and the status of any
debarment):
_______________________________________________________________
_______________________________________________________________
D. AFFIRMATION REGARDING DEBARMENT
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information,
and belief, the above business, or any of its officers,
directors, partners, or any of its employees directly involved
in obtaining or performing contracts with public bodies, has
ever been suspended or debarred (including being issued a
limited denial of participation) by any public entity, except
as follows:
(list each debarment or suspension providing the dates of
the suspension or debarment, the name of the public entity and
the status of the proceedings, the name(s) of the person(s)
involved and their current positions and responsibilities with
the business, the grounds of the debarment or suspension, and
the details of each person's involvement in any activity that
formed the grounds of the debarment or suspension):
_______________________________________________________________
_______________________________________________________________
E. AFFIRMATION REGARDING DEBARMENT OF RELATED ENTITIES
I FURTHER AFFIRM THAT:
(1) The business was not established and it does not
operate in a manner designed to evade the application of
or defeat the purpose of debarment pursuant to Sections
16-101, et seq., of the State Finance and Procurement
Article of the Annotated Code of Maryland; and
(2) The business is not a successor, assignee,
subsidiary, or affiliate of a suspended or debarred
business, except as follows:
(you must indicate the reasons why the affirmations cannot
be given without qualification):
_______________________________________________________________
_______________________________________________________________
F. SUB-CONTRACT AFFIRMATION
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information,
and belief, the above business, has knowingly entered into a
contract with a public body under which a person debarred or
suspended under Title 16 of the State Finance and Procurement
Article of the Annotated Code of Maryland will provide,
directly or indirectly, supplies, services, architectural
services, construction related services, leases of real
property, or construction.
G. AFFIRMATION REGARDING COLLUSION
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information,
and belief, the above business has:
(1) Agreed, conspired, connived, or colluded to produce a
deceptive show of competition in the compilation of the
accompanying bid or offer that is being submitted;
(2) In any manner, directly or indirectly, entered into any
agreement of any kind to fix the bid price or price proposal
of the bidder or contractor or of any competitor, or
otherwise taken any action in restraint of free competitive
bidding in connection with the contract for which the
accompanying bid or offer is submitted.
H. FINANCIAL DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with,
the provisions of Section 13-221 of the State Finance and
Procurement Article of the Annotated Code of Maryland, which
require that every business that enters into contracts, leases,
or other agreements with the State of Maryland or its agencies
during a calendar year under which the business is to receive
in the aggregate $100,000 or more shall, within 30 days of the
time when the aggregate value of the contracts, leases, or
other agreements reaches $100,000, file with the Secretary of
State of Maryland certain specified information to include
disclosure of beneficial ownership of the business.
I. POLITICAL CONTRIBUTION DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with the
provisions of Article 33, Sections 30-1 through 30-4 of the
Annotated Code of Maryland, which require that every person
that enters into contracts, leases, or other agreements with
the State of Maryland, including its agencies or a political
subdivision of the State, during a calendar year under which
the person receives in the aggregate $100,000 or more shall, on
or before February 1, of the following year, file with the
Secretary of State of Maryland certain specified information to
include disclosure of political contributions in excess of $500
to a candidate for elective office in any primary or general
election.
J. DRUG AND ALCOHOL FREE WORKPLACE
(Applicable to all contracts unless the contract is for a
law enforcement agency and the agency head or the agency head's
designee has determined that application of COMAR 21.11.08 and
this certification would be inappropriate in connection with
the law enforcement agency's undercover operations.)
I CERTIFY THAT:
(1) Terms defined in COMAR 21.11.08 shall have the same
meaning when used in this certification.
(2) By submission of its bid or offer, the business, if
other than an individual, certifies and agrees that, with
respect to its employees to be employed under a contract
resulting from this solicitation, the business shall:
(a) Maintain a workplace free of drug and alcohol
abuse during the term of the contract;
(b) Publish a statement notifying its employees that
the unlawful manufacture, distribution, dispensing,
possession, or use of drugs, and the abuse of drugs
or alcohol is prohibited in the business' workplace
and specifying the actions that will be taken against
employees for violation of these prohibitions;
(c) Prohibit its employees from working under the
influence of drugs or alcohol;
(d) Not hire or assign to work on the contract
anyone whom the business knows, or in the exercise of
due diligence should know, currently abuses drugs or
alcohol and is not actively engaged in a bona fide
drug or alcohol abuse assistance or rehabilitation
program;
(e) Promptly inform the appropriate law enforcement
agency of every drug-related crime that occurs in its
workplace if the business has observed the violation
or otherwise has reliable information that a
violation has occurred;
(f) Establish drug and alcohol abuse awareness
programs to inform its employees about:
(i) The dangers of drug and alcohol abuse in
the workplace;
(ii) The business' policy of maintaining a
drug and alcohol free workplace;
(iii) Any available drug and alcohol
counseling, rehabilitation, and employee
assistance programs; and
(iv) The penalties that may be imposed upon
employees who abuse drugs and alcohol in the
workplace;
(g) Provide all employees engaged in the performance
of the contract with a copy of the statement required
by J(2)(b), above;
(h) Notify its employees in the statement required
by J(2)(b), above, that as a condition of continued
employment on the contract, the employee shall:
(i) Abide by the terms of the statement; and
(ii) Notify the employer of any criminal
drug or alcohol abuse conviction for an offense
occurring in the workplace not later than 5 days
after a conviction:
(i) Notify the procurement officer within 10 days
after receiving notice under J(2)(h)(ii), above, or
otherwise receiving actual notice of a conviction:
(j) Within 30 days after receiving notice under
J(2)(h)(ii), above, or otherwise receiving actual
notice of a conviction, impose either of the
following sanctions or remedial measures on any
employee who is convicted of a drug or alcohol abuse
offense occurring in the workplace:
(i) Take appropriate personnel action against
an employee, up to and including termination; or
(ii) Require an employee to satisfactorily
participate in a bona fide drug or alcohol abuse
assistance or rehabilitation program; and
(k) Make a good faith effort to maintain a drug and
alcohol free workplace through implementation of
J(2)(a)--(j), above.
(3) If the business is an individual, the individual
shall certify and agree as set forth in J(4), below, that
the individual shall not engage in the unlawful
manufacture, distribution, dispensing, possession, or use
of drugs or the abuse of drugs or alcohol in the perfor
mance of the contract.
(4) I acknowledge and agree that:
(a) The award of the contract is conditional upon
compliance with COMAR 21.11.08 and this
certification;
(b) The violation of the provisions of COMAR
21.11.08 or this certification shall be cause to
suspend payments under, or terminate the contract for
default under University Policies and Procedures,
Appendix A, Section D. 16. and E. 11.; Default.
(c) The violation of the provisions of COMAR 21.11.08 or this
certification in connection with the contract may, in the
exercise of the discretion of the Board of Public Works, result
in suspension and debarment of the business under COMAR
21.08.04
K. CERTIFICATION OF CORPORATION REGISTRATION AND TAX PAYMENT
I FURTHER AFFIRM THAT:
(1) The business named above is a (domestic ____)
(foreign ____) corporation registered in accordance with
the Corporations and Associations Article, Annotated Code
of Maryland, and that it is in good standing and has filed
all of its annual reports, together with filing fees, with
the Maryland State Department of Assessments and Taxation,
and that the name and address of its resident agent filed
with the State Department of Assessments and Taxation is:
Name: _________________________________________________________
Address:
_______________________________________________________________
_______________________________________________________________
(If not applicable, so state).
(2) Except as validly contested, the business has paid, or
has arranged for payment of, all taxes due the State of
Maryland and has filed all required returns and reports with
the Comptroller of the Treasury, the State Department of
Assessments and Taxation, and the Employment Security
Administration, as applicable, and will have paid all
withholding taxes due the State of Maryland prior to final
settlement.
L. CONTINGENT FEES
I FURTHER AFFIRM THAT:
The business has not employed or retained any person,
partnership, corporation, or other entity, other than a bona
fide employee or agent working for the business, to solicit or
secure the Contract, and that the business has not paid or
agreed to pay any person, partnership, corporation, or other
entity, other than a bona fide employee or agent, any fee or
any other consideration contingent on the making of the
Contract.
M. Repealed
N. ACKNOWLEDGEMENT
I ACKNOWLEDGE THAT this Affidavit is to be furnished to the
Procurement Officer and may be distributed to units of: (1) the
State of Maryland; (2) counties or other subdivisions of the
State of Maryland; (3) other states; and (4) the federal
government. I further acknowledge that this Affidavit is
subject to applicable laws of the United States and the State
of Maryland, both criminal and civil, and that nothing in this
Affidavit or any contract resulting from the submission of this
bid or proposal shall be construed to supersede, amend, modify
or waive, on behalf of the State of Maryland, or any unit of
the State of Maryland having jurisdiction, the exercise of any
statutory right or remedy conferred by the Constitution and the
laws of Maryland with respect to any misrepresentation made or
any violation of the obligations, terms and covenants
undertaken by the above business with respect to (1) this
Affidavit, (2) the contract, and (3) other Affidavits
comprising part of the contract.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY
THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE
BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: _____________ By:
________________________________________
(Authorized Representative and Affiant)
Firm's Federal Employer Identification Number (FEIN):
_______________________
C. Mandatory Terms and Conditions of University Contracts
Under $100,000
1. Simplified Acquisitions of $5,000 or less:
(a) Contract type-oral or written;
(b) Minimum evidence:
i. For oral contracts-a receipt, invoice, or
voucher;
ii. For written contracts-a purchase order or
contract;
iii. For purchases made with a corporate
purchasing card a charge slip or a
telephone purchasing card log, and at least
a sales slip, packing slip, cash register
receipt, or repair order.
2. Simplified Acquisitions exceeding $5,000:
The contract terms may not be altered or deleted
without prior approval of the Procurement Officer or
a duly authorized representative.
(a) simplified acquisition contracts over $5,000
must be written, and signed by an authorized
University employee.
(b) simplified acquisition contracts over $5,000
must include the following elements:
i. Identification of the parties to the contract including
contractor taxpayer identification
number; the taxpayer identification number shall be the Social
Security number for individuals and sole proprietors and the
federal employer identification number for all other types of
organizations;
ii. A statement of the scope of the contract;
iii. The dollar value of the contract, if known, or estimated
dollar value if the actual value is not known;
iv. The term of the contract, including completion or
delivery date;
v. Name of the procurement officer responsible for the
contract.
vi. Contract Clauses. In addition to the contract elements
specified above, a written simplified acquisition contract may
include the other clauses, items, or conditions specified by
the institution. It is recommended that simplified acquisition
contract include the following:
1. Maryland Law Prevails. "The laws of Maryland shall govern
the interpretation and enforcement of this Contract".
2. Termination for Convenience: "The University may
terminate this Contract, in whole or in part, without showing
cause upon prior written notice to the Contractor specifying
the extent and the effective date of the termination.
Termination hereunder, including the determination of the
rights and obligations of the parties, shall be governed by the
provisions of the University System of Maryland Procurement
Policy and Procedures.
3. Changes. "This Contract may be amended with the consent of
both parties. Amendments may not change significantly the scope
of the Contract ."
D. Mandatory Purchase Order Terms and Conditions for Contract
exceeding $100,000
1. General.
The following are mandatory terms and conditions to
be included in all purchase orders exceeding
$100,000. If unusual circumstances arise that
necessitate the modification of any mandatory terms
and conditions, a recommendation containing the
necessary modification(s) and including written
justification must be approved by the Procurement
Officer and, if appropriate, by legal counsel.
2. Incorporation by Reference.
"All terms and conditions of the solicitation, and
any changes thereto, are made a part of this
contract."
3. Tax Exemption.
"The State is generally exempt from federal excise
taxes, Maryland sales and use taxes, District of
Columbia sales taxes, and transportation taxes.
Exemption certificates shall be completed upon
request. Where a contractor is required to furnish
and install material in the construction or
improvement of real property in performance of a con
tract, the Contractor shall pay the Maryland Sales
Tax and the exemption does not apply."
4. Specifications.
"All materials, equipment, supplies or services shall
conform to federal and State laws and regulations and
to the specifications contained in the solicitation."
5. Delivery and Acceptance.
"Delivery shall be made in accordance with the
solicitation specifications. The University, in its
sole discretion, may extend the time of performance
for excusable delays due to unforeseeable causes
beyond the Contractor's control. The University
unilaterally may order in writing the suspension,
delay, or interruption of performance hereunder. The
University reserves the right to test any materials,
equipment, supplies, or services delivered to
determine if the specifications have been met.
The materials listed in the bid or proposal shall be
delivered FOB the point or points specified prior to
or on the date specified in the bid or proposal. Any
material that is defective or fails to meet the terms
of the solicitation specifications shall be rejected.
Rejected materials shall be promptly replaced. The
University reserves the right to purchase replacement
materials in the open market. Contractors failing to
promptly replace materials lawfully rejected shall be
liable for any excess price paid for the replacement,
plus applicable expenses, if any.
6. Non-Hiring of Employees.
No employee of the State or any department,
commission, agency or branch thereof whose duties as
such employee include matters relating to or
affecting the subject matter of this contract shall,
while so employed, become or be an employee of the
party or parties hereby contracting with the State or
any unit thereof.
7. Nondiscrimination in Employment.
The Contractor agrees not to discriminate in any
manner against an employee or applicant for
employment because of race, color, religion, creed,
age, sex, marital status, national origin, ancestry,
or physical or mental handicap unrelated in nature
and extent so as reasonably to preclude the
performance of such employment and to post and to
cause subcontractors to post in conspicuous places
available to employees and applicants for employment,
notices setting forth the substance of this clause.
8. Financial Disclosure.
The Contractor shall comply with State Finance and
Procurement Article, §13-221, Annotated Code of
Maryland, which requires that every business that
enters into contracts, leases or other agreements
with the State and receives in the aggregate $100,000
or more during a calendar year shall, within 30 days
of the time when the $100,000 is reached, file with
the Secretary of State certain specified information
to include disclosure of beneficial ownership of the
business.
9. Political Contribution Disclosure.
The Contractor shall comply with Article 33, Sections
30-1 through 30-4, Annotated Code of Maryland, which
requires that every person that enters into
contracts, leases, or other agreements with the State
of Maryland or a political subdivision of the State,
including its agencies, during a calendar year in
which the person receives in the aggregate $100,000
or more, shall file with the State Administration
Board of Election Laws a statement disclosing
contributions in excess of $500 made during the
reporting period to a candidate for elective office
in any primary or general election.
10. Anti-Bribery.
The Contractor warrants that neither it nor any of
its officers, directors, or partners nor any of its
employees who are directly involved in obtaining or
performing contracts with any public body has been
convicted of bribery, attempted bribery, or
conspiracy to bribe under the laws of any state or of
the federal government or has engaged in conduct
since July 1, 1977, which would constitute bribery,
attempted bribery, or conspiracy to bribe under the
laws of any state or the federal government.
11. Registration.
Pursuant to §7-201 et seq. of the Corporations and
Associations Article of the Annotated Code of
Maryland, corporations not incorporated in the State
shall be registered with the State Department of
Assessments and Taxation, 301 West Preston St.,
Baltimore, Maryland 21201, before doing any
interstate or foreign business in this State. Before
doing any intrastate business in this State, a
foreign corporation shall qualify with the Department
of Assessments and Taxation.
12. Contingent Fees.
The Contractor warrants that it has not employed or
retained any person, partnership, corporation, or
other entity, other than a bona fide employee or
agent working for the Contractor, to solicit or
secure this agreement, and that it has not paid or
agreed to pay any person, partnership, corporation,
or other entity, other than a bona fide employee or
agent, any fee or any other consideration contingent
on the making of this agreement.
13. EPA Compliance.
Materials, supplies, equipment, or services shall
comply in all respects with the Federal Noise Control
Act of 1972, where applicable.
14. Occupational Safety and Health Act (O.S.H.A.).
All materials, supplies, equipment, or services
supplied as a result of this contract shall comply
with the applicable U.S. and Maryland Occupational
Safety and Health Act standards.
15. Termination for Convenience.
Upon written notice to the Contractor, the University
may terminate this contract, in whole or in part,
whenever the University shall determine that such
termination is in the best interest of the
University. The University shall pay all reasonable
costs incurred up to the date of termination and all
reasonable costs associated with termination of the
contract. However, the Contractor may not be
reimbursed for anticipatory profits. Termination
hereunder, including the determination of the rights
and obligations of the parties, shall be governed by
the provisions of USM Procurement Policies and
Procedures.
16. Termination for Default.
When the Contractor has not performed or has
unsatisfactorily performed the contract, payment
shall be withheld at the discretion of the
University. Failure on the part of a Contractor to
fulfill contractual obligations shall be considered
just cause for termination of the contract and the
Contractor is not entitled to recover any costs
incurred by the Contractor up to the date of
termination. Termination hereunder, including the
determination of the rights and obligations of the
parties, shall be governed by the provisions of USM
Procurement Policies and Procedures.
17. Disputes.
This contract shall be subject to USM Procurement
Policies and Procedures. Pending resolution of a
claim, the Contractor shall proceed diligently with
the performance of the contract in accordance with
the procurement officer's decision.
18. Multi-Year Contracts.
If funds are not appropriated or otherwise made
available to support continuation in any fiscal year
succeeding the first fiscal year, this contract shall
terminate automatically as of the beginning of the
fiscal year for which funds are not available. The
Contractor may not recover anticipatory profits or
costs incurred after termination.
19. Intellectual Property.
Contractor agrees to indemnify and save harmless the
University, its officers, agents and employees with
respect to any claim, action, cost or judgment for
patent infringement, or trademark or copyright viola
tion arising out of purchase or use of materials,
supplies, equipment or services covered by this
contract.
20. Maryland Law Prevails.
The provisions of this contract shall be governed by
the laws of Maryland.
21. Contractor's Invoices.
Contractor agrees to include on the face of all
invoices billed to the University, its Taxpayer
Identification Number, which is the Social Security
Number for individuals and sole proprietors and the
Federal Employer Identification Number for all other
types of organizations. If a Purchase Order document
is issued, the Purchase Order Number must be
included.
22. Pre-existing Regulations.
The regulations set forth in USM Procurement Policies
and Procedures in effect on the date of execution of
this Contract are applicable to this Contract.
23. Indemnification.
The University shall not assume any obligation to
indemnify, hold harmless, or pay attorneys' fees that
may arise from or in any way be associated with the
performance or operation of this agreement.
24. Conflicting Terms.
Any proposal for terms in addition to or different
from those set forth in this purchase order or any
attempt by the Contractor to vary any of the terms of
this offer by Contractor's acceptance shall not
operate as a rejection of this offer, unless such
variance is in the terms of the description,
quantity, price or delivery schedule, but shall be
deemed a material alteration thereof, and this offer
shall be deemed acceptable by the Contractor without
the additional or different terms. If this purchase
order is an acceptance of a prior offer by the
Contractor, the acceptance is expressly conditioned
upon Contractor's assent to any additional or
different terms contained herein. The Contractor
understands and agrees that the terms and conditions
of this purchase order may not be waived.
25. Drug and Alcohol Free Workplace.
The contractor warrants that the contractor shall
comply with COMAR 21.11.08 Drug and Alcohol Free
Workplace, and that the contractor shall remain in
compliance throughout the term of this purchase
order.
26. Retention of Records.
The Contractor shall retain and maintain all records
and documents relating to this Contract for three
years after final payment by the State hereunder or
any applicable statute of limitations, whichever is
longer, and shall make them available for inspection
and audit by authorized representatives of the State,
including the procurement officer or designee, at all
reasonable times.
E. Mandatory Contract Terms and Conditions For Contracts Over
$100,000 Not Documented On a Purchase Order
If unusual circumstances arise that necessitate the
modification of any mandatory terms and conditions, a
recommendation containing the necessary modification(s) and
including written justification must be approved by the
Procurement Officer and, if appropriate, by legal counsel.
1. Parties to the Contract
2. Scope of the Contract
3. Compensation and Method of Payment
4. Non-Hiring of Employees
No employee of the State of Maryland or any unit
thereof, whose duties as such employee include
matters relating to or affecting the subject matter
of this contract, shall, while so employed, become or
be an employee of the party or parties hereby
contracting with the State of Maryland or any unit
thereof.
5. Disputes
Pending Resolution of a claim, the Contractor shall
proceed diligently with the performance of the
contract in accordance with the procurement officer's
decision.
One of the following clauses is preferred:
a. Alternate Disputes Clause (short form). "This
contract shall be subject to the USM Procurement
Policies and Procedures. Pending resolution of a
claim, the Contractor shall proceed diligently
with the performance of the contract in
accordance with the procurement officer's
decision."
b. Alternate Disputes Clause (long form).
(1) This contract is subject to the USM
Procurement Policies and Procedures.
(2) Except as otherwise may be provided by law,
all disputes arising under or as a result
of a breach of this contract that are not
disposed of by mutual agreement shall be
resolved in accordance with this clause.
(3) As used herein, "claim" means a written
demand or assertion by one of the parties
seeking, as a legal right, the payment of
money, adjustment or interpretation of
contract terms, or other relief, arising
under or relating to this contract. A
voucher, invoice, or request for payment
that is not in dispute when submitted is
not a claim under this clause. However, if
the submission subsequently is not acted
upon in a reasonable time, or is disputed
as to liability or amount, it may be
converted to a claim for the purpose of
this clause.
(4) A claim shall be made in writing and
submitted to the procurement officer for
decision in consultation with the Office of
the Attorney General within thirty days of
when the basis of the claim was known or
should have been known, whichever is
earlier.
(5) When a claim cannot be resolved by mutual
agreement, the contractor shall submit a
written request for final decision to the
procurement officer. The written request
shall set forth all the facts surrounding
the controversy.
(6) The contractor, at the discretion of the
procurement officer, may be afforded an
opportunity to be heard and to offer
evidence in support of his claim.
(7) The procurement officer shall render a
written decision on all claims within 180
days of receipt of the contractor's written
claim, unless the procurement officer
determines that a longer period is
necessary to resolve the claim. If a
decision is not issued within 180 days, the
procurement officer shall notify the
contractor of the time within which a
decision shall be rendered and the reasons
for such time extension. The decision shall
be furnished to the contractor, by
certified mail, return receipt requested,
or by any other method that provides
evidence of receipt. The procurement
officer's decision shall be deemed the
final action of the University.
(8) The procurement officer's decision shall be
final and conclusive unless the contractor
mails or otherwise files a written appeal
with the Maryland State Board of Contract
Appeals within 30 days of receipt of the
decision.
(9) Pending resolution of a claim, the
contractor shall proceed diligently with
the performance of the contract in
accordance with the procurement officer's
decision."
6. Maryland Law Prevails. "The laws of Maryland shall
govern the interpretation and enforcement of this
Contract."
7. Nondiscrimination in Employment.
Mandatory provision for all contracts. The following
clause is preferred:
"The Contractor agrees: (a) not to discriminate in
any manner against an employee or applicant for
employment because of race, color, religion, creed,
age, sex, marital status, national origin, ancestry,
or physical or mental handicap unrelated in nature
and extent so as reasonably to preclude the
performance of such employment; (b) to include a
provision similar to that contained in subsection
(a), above, in any subcontract except a subcontract
for standard commercial supplies or raw materials;
and (c) to post and to cause subcontractors to post
in conspicuous places available to employees and
applicants for employment, notices setting forth the
substance of this clause."
8. Contingent Fee Prohibition.
Mandatory provision for all contracts:
"The contractor, architect, or engineer (as
applicable) warrants that it has not employed or
retained any person, partnership, corporation, or
other entity, other than a bona fide employee or
agent working for the contractor, architect, or
engineer, to solicit or secure this agreement, and
that it, has not paid or agreed to pay any person,
partnership, corporation, or other entity, other than
a bona fide employee or agent, any fee or any other
consideration contingent on the making of this
agreement."
9. Multi-Year Contracts Contingent Upon Appropriations.
Mandatory provision for all contracts and contract
modifications to be effective in more than one fiscal
year:
If the General Assembly fails to appropriate funds or
if funds are not otherwise made available for
continued performance for any fiscal period of this
Contract succeeding the first fiscal period, this
Contract shall be canceled automatically as of the
beginning of the fiscal year for which funds were not
appropriated or otherwise made available; provided,
however, that this will not affect either the
University's rights or the Contractor's rights under
any termination clause in this Contract. The effect
of termination of the Contract hereunder will be to
discharge both the Contractor and the University from
future performance of the Contract, but not from
their rights and obligations existing at the time of
termination. The Contractor shall be reimbursed for
the reasonable value of any non-recurring costs
incurred but not amortized in the price of the
Contract. The University shall notify the Contractor
as soon as it has knowledge that funds may not be
available for the continuation of this Contract for
each succeeding fiscal period beyond the first."
10. Termination for Default.
Mandatory provision for all contracts. One of the
following clauses is preferred:
a. Alternate Clause -Termination for Default (short
form).
"If the Contractor fails to fulfill its
obligation under this contract properly and on
time, or otherwise violates any provision of the
contract, the University may terminate the
contract by written notice to the Contractor.
The notice shall specify the acts or omissions
relied upon as cause for termination. All
finished or unfinished work provided by the
Contractor shall, at the University's option,
become the University's property. The University
shall pay the Contractor fair and equitable
compensation for satisfactory performance prior
to receipt of notice of termination, less the
amount of damages caused by Contractor's breach.
If the damages are more than the compensation
payable to the Contractor, the Contractor will
remain liable after termination and the
University can affirmatively collect damages.
Termination hereunder, including the
determination of the rights and obligations of
the parties, shall be governed by the provisions
of USM Procurement Policies And Procedures."
b. Alternate Clause -Termination for Default (long
form).
(1) The University may, subject to the
provisions of paragraph (3) below, by
written notice of default to the
Contractor, terminate the whole or any part
of this contract in any one of the
following circumstances: (a) If the
Contractor fails to perform within the time
specified herein or any extension thereof-,
or (b) If the Contractor fails to perform
any of the other provisions of this
contract, or so fails to make progress as
to endanger performance of this contract in
accordance with its terms, and in either of
these two circumstances does not cure such
failure within a period of 10 days (or such
longer period as the procurement officer
may authorize in writing) after receipt of
notice from the procurement officer
specifying such failure.
(2) In the event the University terminates this
contract in whole or in part as provided in
paragraph (1) of this clause, the
University may procure substitute
performance upon terms and in whatever
manner the procurement officer may deem
appropriate, and the Contractor shall be
liable to the University for any excess
costs for substitute performance; provided,
that the Contractor shall continue the
performance of this contract to the extent
not terminated under the provisions of this
clause.
(3) Except with respect to defaults of
subcontractors, the Contractor shall not be
liable for any excess costs if the failure
to perform the contract arises out of
causes beyond the control and without the
fault or negligence of the Contractor. Such
causes may include, but are not restricted
to, acts of God or of the public enemy,
acts of the University in either its
sovereign or contractual capacity, fires,
floods, epidemics, quarantine restrictions,
strikes, freight embargoes, and unusually
severe weather; but in every case the
failure to perform shall be beyond the
control and without the fault or negligence
of the Contractor. If the failure to
perform is caused by the default of a
subcontractor, and if the default arises
out of causes beyond the control of both
the Contractor and subcontractor, and
without the fault or negligence of either
of them, the Contractor shall not be liable
for any excess costs for failure to perform
unless substitute performance for the
subcontractor was obtainable from another
source in sufficient time to permit the
Contractor to meet the performance
schedule.
(4) If, after notice of termination of this
contract under the provisions of this
clause, it is determined for any reason
that the Contractor was not in default
under the provisions of this clause, or
that the default was excusable under the
provisions of this clause, the rights and
obligations of the parties shall, if the
contract contains a clause providing for
termination for convenience of the
University, be the same as if the notice of
termination had been issued pursuant to
such clause. If, after notice of
termination of this contract under the
provisions of this clause, it is determined
for any reason that the Contractor was not
in default under the provisions of this
clause, and if this contract does not
contain a clause providing for termination
for convenience of the University, the
contract shall be equitably adjusted to
compensate for such termination and the
contract modified accordingly; failure to
agree to any such adjustment shall be a
dispute concerning a question of fact
within the meaning of the clause of this
contract entitled "Disputes."
(5) If this contract is terminated as provided
in paragraph (1) of this clause, the
University, in addition to any other rights
provided in this clause, may require the
Contractor to transfer title and deliver to
the University, in the manner, at the
times, and to the extent, if any, directed
by the procurement officer, (a) the
fabricated or unfabricated parts, work in
progress, completed work, supplies, and
other material produced as a part of, or
acquired in connection with the performance
of, the work terminated by the Notice of
Termination, and (b) the completed or
partially completed plans, drawings,
information, and other property which, if
the contract had been completed, would have
been required to be furnished to the
University; and the Contractor shall, upon
direction of the procurement officer,
protect and preserve property in the
possession of the Contractor in which the
University has an interest. Payment for
completed supplies delivered to and
accepted by the University shall be at the
contract price. Payment for manufacturing
materials delivered to and accepted by the
University and for the protection and
preservation of property shall be in an
amount agreed upon by the Contractor and
procurement officer; failure to agree to
such amount shall be a dispute concerning a
question of fact within the meaning of the
clause of this contract entitled
"Disputes." The University may withhold
from amounts otherwise due the Contractor
hereunder such sum as the procurement
officer determines to be necessary to
protect the University against loss because
of outstanding liens or claims of former
lien holders.
(6) The rights and remedies of the University
provided in this clause shall not be
exclusive and are in addition to any other
rights and remedies provided by law or
under this contract.
(7) As used in paragraph (3) of this clause,
the terms, "subcontractor" and
"subcontractors" mean subcontractor(s) at
any tier."
11. Termination for Convenience.
Except as provided in §B, mandatory provision for all
contracts. One of the following clauses is preferred:
a. Alternate Clause -Termination for Convenience
(short form).
"The performance of work under this contract may
be terminated by the University in accordance
with this clause in whole, or from time to time
in part, whenever the University shall determine
that such termination is in the best interest of
the University. The University will pay all
reasonable costs associated with this contract
that the Contractor has incurred up to the date
of termination and all reasonable costs associ
ated with termination of the Contract. However,
the Contractor shall not be reimbursed for any
anticipatory profits that have not been earned
up to the date of termination. Termination
hereunder, including the determination of the
rights and obligations of the parties, shall be
governed by the provisions of the USM
Procurement Policies and Procedures.
b. Alternate Clause -Termination for Convenience
(long form).
(1) The performance of work under this
contract may be terminated by the
University in accordance with this clause
in whole, or from time to time in part,
whenever the University shall determine
that such termination is in the best
interest of the University. Any such
termination shall be effected by delivery
to the Contractor of a Notice of Termina
tion specifying the extent to which
performance of work is terminated and the
time when such termination becomes
effective.
(2) After receipt of a Notice of Termination,
and except as otherwise directed by the
procurement officer, the Contractor shall:
(a) stop work as specified in the Notice
of Termination;
(b) place no further orders or
subcontracts for materials, services
or facilities, except as may be
necessary for completion of the
portion of the work under the contract
as is not terminated;
(c) terminate all orders and subcontracts
to the extent that they relate to the
performance of work terminated by the
Notice of Termination;
(d) assign to the University, in the
manner, at times, and to the extent
directed by the procurement officer,
all of the right, title, and interest
of the Contractor under the orders and
subcontracts so terminated, in which
case the University shall have the
right, in its discretion, to settle or
pay any or all claims arising out of
the termination of such orders and
subcontracts;
(e) settle all outstanding liabilities and
all claims arising out of such
termination of orders and
subcontracts, with the approval or
ratification of the procurement
officer, to the extent he may require,
which approval or ratification shall
be final for all the purposes of this
clause;
(f) transfer title and deliver to the
University, in the manner, at the
times, and to the extent, if any,
directed by the procurement officer,
(i) the fabricated or unfabricated
parts, work in process, completed
work, supplies, and other
material produced as a part of,
or acquired in connection with
the performance of, the work
terminated by the Notice of
Termination, and
(ii) the completed or partially
completed plans, drawings,
information, and other property
which, if the contract had been
completed, would have been
required to be furnished to the
University;
(g) use its best efforts to sell, in the
manner, at the times, to the extent,
and at the price or prices directed or
authorized by the procurement officer,
any property of the types referred to
in (f) above; provided, however, that
the Contractor
(i) may not be required to extend
credit to any purchaser, and
(ii) may acquire any such
property under the conditions
prescribed by and at a price or
prices approved by the
procurement officer; and provided
further that the proceeds of any
such transfer or disposition
shall be applied in reduction of
any payments to be made by the
University to the Contractor
under this contract or shall
otherwise be credited to the
price or cost of the work covered
by this contract or paid in such
other manner as the procurement
officer may direct;
(h) complete performance of such part of the work as shall
not have been terminated by the Notice of Termination; and
(i) take any action that may be
necessary, or as the procurement
officer may direct, for the
protection and preservation of
the property related to this
contract which is in the
possession of the Contractor and
in which the University has or
may acquire an interest. The
Contractor shall submit to the
procurement officer a list,
certified as to quantity and
quality, of any or all items of
termination inventory not
previously disposed of, exclusive
of items the disposition of which
has been directed or authorized
by the procurement officer, and
may request the University to
remove them or enter into a
storage agreement covering them.
Not later than fifteen (15) days
thereafter, the University shall
accept title to these items and
remove them or enter into a
storage agreement covering the
same; provided, that the list
submitted shall be subject to
verification by the procurement
officer upon removal of the
items, or if the items are
stored, within forty-five (45)
days from the date of submission
of the list, and any necessary
adjustment to correct the list as
submitted shall be made before
final settlement.
(3) After receipt of a Notice of Termination,
the Contractor shall submit to the
procurement officer his termination claim,
in the form and with certification
prescribed by the procurement officer. This
claim shall be submitted promptly but in no
event later than one (1) year from the
effective date of termination, unless one
or more extensions in writing are granted
by the procurement officer, upon request of
the Contractor made in writing within the
one-year period or authorized extension
thereof. However, if the procurement
officer determines that the facts justify
such action, he may receive and act upon
any such termination claim at any time
after the one-year period or any extension
thereof. Upon failure of the Contractor to
submit his termination claim within the
time allowed, the procurement officer may
determine the claim at any time after the
one-year period or any extension thereof.
Upon failure of the Contractor to submit
his termination claim within the time
allowed, the procurement officer may
determine, on the basis of information
available to him, the amount, if any, due
to the Contractor by reason of the
termination and shall thereupon pay to the
Contractor the amount so determined.
(4) Subject to the provisions of paragraph (3),
the Contractor and the procurement officer
may agree upon the whole or any part of the
amount or amounts to be paid to the
Contractor by reason of the total or
partial termination of work pursuant to
this clause, which amount or amounts may
include a reasonable allowance for profit
on work done; provided, that such agreed
amount or amounts, exclusive of settlement
costs, shall not exceed the total contract
price as reduced by the amount of payments
otherwise made and as further reduced by
the contract price of work not terminated.
The contract shall be amended accordingly,
and the Contractor shall be paid the agreed
amount. Nothing in paragraph (5) of this
clause, prescribing the amount to be paid
to the Contractor in the event of failure
of the Contractor and the procurement
officer to agree upon the whole amount to
be paid to the Contractor by reason of the
termination of work pursuant to this
clause, shall be deemed to limit, restrict,
or otherwise determine or affect the amount
or amounts that may be agreed upon to be
paid to the Contractor pursuant to this
paragraph.
(5) In the event of the failure of the
Contractor and the procurement officer to
agree as provided in paragraph (4) upon the
whole amount to be paid to the Contractor
by reason of the termination of work
pursuant to this clause, the procurement
officer shall pay to the Contractor the
amounts determined by the procurement
officer as follows, but without duplication
of any amounts agreed upon in accordance
with paragraph (4):
(a) for completed supplies or services
accepted by the University (or sold or
acquired as provided in paragraph (2)
(g) above) and for which payment has
not theretofore been made, a sum
equivalent to the aggregate price for
the supplies or services computed in
accordance with the price or prices
specified in the contract,
appropriately adjusted for any saving
of freight or other charges;
(b) the total of-
(i) the costs incurred in the
performance of the work termi
nated, including initial costs
and preparatory expense allocable
thereto, but exclusive of any
costs attributable to supplies or
services paid or to be paid for
under paragraph (5)(a) hereof;
(ii) the cost of settling and
paying claims arising out of the
termination of work under
subcontracts or orders, as
provided in paragraph (2) (e)
above, which are properly
chargeable to the terminated
portion of the contract
(exclusive of amounts paid or
payable on account of supplies or
materials delivered or services
furnished by subcontractors or
vendors before the effective date
of the Notice of Termination,
which amounts shall be included
in the costs payable under (2)
(g) above); and
(iii) a sum, as profit on (i)
above, determined by the
procurement officer to be fair
and reasonable; provided,
however, that if it appears that
the contractor would have
sustained a loss on the entire
contract had it been completed,
no profit shall be included or
allowed under this subdivision
(iii) and an appropriate
adjustment shall be made reducing
the amount of the settlement to
reflect the indicated rate of
loss; and
(c) the reasonable cost of settlement
accounting, legal, clerical, and other
expenses reasonably necessary for the
preparation of settlement claims and
supporting data with respect to the
terminated portion of the contract and
for the termination and settlement of
subcontracts thereunder, together with
reasonable storage, transportation,
and other costs incurred in connection
with the protection or disposition of
property allocable to this contract.
The total sum to be paid to the
Contractor under (a) and (b) of this
paragraph shall not exceed the total
contract price as reduced by the
amount of payments otherwise made and
as further reduced by the contract
price of work not terminated. Except
for normal spoilage, and except to the
extent that the University shall have
otherwise expressly assumed the risk
of loss, there shall be excluded from
the amounts payable to the Contractor
as provided in (5) (a) and (b) (i)
above, the fair value, as determined
by the procurement officer, of
property that is destroyed, lost,
stolen, or damaged so as to become
undeliverable to the University or to
a buyer pursuant to paragraph (2) (g).
(6) Costs claimed, agreed to, or determined
pursuant to (3), (4), (5) and (11) hereof
shall be in accordance with USM Procurement
Policies and Procedures as in effect on
the date of this contract.
(7) The Contractor shall have the right of
appeal, under the clause of this contract
entitled "Disputes," from any determination
made by the procurement officer under
paragraph (3), (5), or (9) hereof, except
that if the Contractor has failed to submit
his claim within the time provided in
paragraph (3) or (9) hereof, and has failed
to request extension of the time, he shall
have no right of appeal. In any case where
the procurement officer has made a
determination of the amount due under
paragraph (3), (5), or (9) hereof, the
University shall pay to the Contractor the
following: (a) if there is no right of
appeal hereunder or if no timely appeal has
been taken, the amount so determined by the
procurement officer, or (b) if an appeal
has been taken, the amount finally
determined on such appeal.
(8) In arriving at the amount due the
Contractor under this clause there shall be
deducted (a) all unliquidated advance or
other payments on account theretofore made
to the Contractor, applicable to the
terminated portion of this contract, (b)
any claim which the University may have
against the Contractor in connection with
this contract, and (c) the agreed price
for, or the proceeds of sale of, any
materials, supplies, or other things
acquired by the Contractor or sold,
pursuant to the provisions of this clause,
and not otherwise recovered by or credited
to the University.
(9) If the termination hereunder be partial,
the Contractor may file with the
procurement officer a claim for an
equitable adjustment of the price or prices
specified in the contract relating to the
continued portion of the contract (the
portion not terminated by the Notice of
Termination), and such equitable adjustment
as may be agreed upon shall be made in such
price or prices. Any claim by the
Contractor for an equitable adjustment
under this clause shall be asserted within
ninety (90) days from the effective date of
the termination notice, unless an extension
is granted in writing by the procurement
officer.
(10) The University may from time to time,
under such terms and conditions as it may
prescribe, make partial payments and
payments on account against costs incurred
by the Contractor in connection with the
terminated portion of this contract
whenever in the opinion of the procurement
officer the aggregate of such payments
shall be within the amount to which the
Contractor shall be entitled hereunder. If
the total of such payments is in excess of
the amount finally agreed or determined to
be due under this clause, such excess shall
be payable by the Contractor to the
University upon demand, together with
interest computed at the prime rate
established by the State Treasurer for the
period from the date such excess payment is
received by the Contractor to the date on
which such excess is repaid to the State;
provided, however, that no interest shall
be charged with respect to any such excess
payment attributable to a reduction in the
Contractor's claim by reason of retention
or other disposition of termination
inventory until ten days after the date of
such retention or disposition, or a later
date as determined by the procurement
officer by reason of the circumstances.
(11) Unless otherwise provided for in this
contract, or by applicable statute, the
Contractor shall-from the effective date of
termination until the expiration of three
years after final settlement under this
contract -preserve and make available to
the University at , all reasonable times at
the office of the Contractor but without
direct charge to the University, all his
books, records, documents and other
evidence bearing on the costs and expenses
of the Contractor under this contract and
relating to the work terminated hereunder,
or, to the extent approved by the
procurement officer, reproductions
thereof."
12. Delays and Extensions of Time.
Mandatory provision for all contracts. It shall
be in substantially the same form as follows:
"Delays and Extensions of Time"
"The Contractor agrees to prosecute the work
continuously and diligently and no charges or claims
for damages shall be made by it for any delays or
hindrances from any cause whatsoever during the
progress of any portion of the work specified in this
Contract.
"Time extensions will be granted only for excusable
delays that arise from unforeseeable causes beyond
the control and without the fault or negligence of
the Contractor, including but not restricted to, acts
of God, acts of the public enemy, acts of the State
in either its sovereign or contractual capacity, acts
of another Contractor in the performance of a
contract with the State, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes,
or delays of subcontractors or suppliers arising from
unforeseeable causes beyond the control and without
the fault or negligence of either the Contractor or
the subcontractors or suppliers."
13. Modifications.
This Contract may be amended with the consent of both
parties. Amendments may not change significantly
the scope of the Contract.
14. Liquidated Damages.
Mandatory provision for those contracts deemed
appropriate by the procurement officer.
15. Variations in Estimated Quantities.
Mandatory provision for all contracts that contain
estimated quantity items.
16. Suspension of Work.
Mandatory provision for all contracts. It shall be in
substantially the same form as follows:
"The procurement officer unilaterally may order the
Contractor in writing to suspend, delay, or interrupt
all or any part of the work for such period of time
as he may determine to be appropriate for the
convenience of the University."
17. Pre-existing Regulations.
Mandatory provision for all contracts. It shall be in
substantially the same form as follows:
"In accordance with the provisions of Section 11-206
of the State Finance and Procurement Article,
Annotated Code of Maryland, the regulations set forth
in USM Procurement Policies and Procedures in effect
on the date of execution of this Contract are
applicable to this Contract."
18. Payment of State Obligations.
Mandatory provision for all contracts. The following
clause is preferred:
"Payments to the Contractor pursuant to this Contract
shall be made no later than 30 days after the State's
receipt of a proper invoice from the Contractor.
Charges for late payment of invoices, other than as
prescribed by Title 15, Subtitle 1, of the State
Finance and Procurement Article, Annotated Code of
Maryland, or by the Public Service Commission of
Maryland with respect to regulated public utilities,
as applicable, are prohibited."
19. Financial Disclosure.
Mandatory provision for all contracts:
"The Contractor shall comply with the provisions of
Section 13-221 of the State Finance and Procurement
Article of the Annotated Code of Maryland, which
requires that every business that enters into
contracts, leases, or other agreements with the State
of Maryland or its agencies during a calendar year
under which the business is to receive in the
aggregate $100,000 or more, shall, within 30 days of
the time when the aggregate value of these contracts,
leases or other agreements reaches $100,000, file
with the Secretary of State of Maryland certain
specified information to include disclosure of
beneficial ownership of the business."
20. Political Contribution Disclosure.
Mandatory provision for all contracts:
"The Contractor shall comply with Article 33,
Sections 30-1 through 30-4 of the Annotated Code of
Maryland, which requires that every person that
enters into contracts, leases, or other agreements
with the State, a county, or an incorporated
municipality, or their agencies, during a calendar
year in which the person receives in the aggregate
$100,000 or more, shall file with the State
Administrative Board of Election Laws a statement
disclosing contributions in excess of $500 made
during the reporting period to a candidate for
elective office in any primary or general election.
The statement shall be filed with the State
Administrative Board of Election Laws:
a. before a purchase or execution of a lease or
contract by the University, a county, an
incorporated municipality, or their agencies,
and shall cover the preceding two calendar
years; and
b. if the contribution is made after the execution
of a lease or contract, then twice a year,
throughout the contract term, on (1) February 5,
to cover the 6-month period ending January 31;
and (2) August 5, to cover the 6-month period
ending July 31.
21. Retention of Records.
Mandatory provision for all contracts. The following
clause is preferred:
"The Contractor shall retain and maintain all records
and documents relating to this Contract for three
years after final payment by the University hereunder
or any applicable statute of limitations, whichever
is longer, and shall make them available for
inspection and audit by authorized representatives of
the University, including the procurement officer or
designee, at all reasonable times."
22. Compliance with Laws.
Mandatory provision for all contracts. The following
clause is preferred:
"The Contractor hereby represents and warrants that:
a. It is qualified to do business in the State of
Maryland and that it will take such action as,
from time to time hereafter, may be necessary to
remain so qualified;
b. It is not in arrears with respect to the payment
of any moneys due and owing the State of
Maryland, or any department or unit thereof,
including but not limited to the payment of
taxes and employee benefits, and that it shall
not become so in arrears during the term of this
Contract;
c. It shall comply with all federal, State, and
local laws, regulations, and ordinances
applicable to its activities and obligations
under this Contract; and
d. It shall obtain, at its expense, all licenses,
permits, insurance, and governmental approvals,
if any, necessary to the performance of its
obligations under this Contract."
23. Cost and Price Certification.
Mandatory provision for all contracts and contract
modifications (excluding real property leases and
architectural services or engineering services
contracts (see 24. below "Truth in Negotiations") if
the contract or modification exceeds $100,000 or a
smaller amount determined by the procurement officer
under State Finance and Procurement Article, §13-220.
The language shall be in substantially the same form
as follows:
"Cost and Price Certification"
The Contractor by submitting cost or price
information certifies that, to the best of its
knowledge, the information submitted is accurate,
complete, and current as of a mutually determined
specified date prior to the conclusion of any price
discussions or negotiations for:
a. A negotiated contract, if the total contract
price is expected to exceed $100,000, or a
smaller amount set by the procurement officer;
or
b. A change order or contract modification,
expected to exceed $100,000, or a smaller amount
set by the procurement officer.
c. The price under this Contract and any change
order or modification hereunder, including
profit or, fee, shall be adjusted to exclude any
significant price increases occurring because
the Contractor furnished cost or price
information which, as of the date agreed upon
between the parties, was inaccurate, incomplete,
or not current."
24. Truth-In-Negotiation Certification.
Mandatory provision for architectural services or
engineering services contracts exceeding $100,000. It
shall be in substantially the same form as follows:
"Truth- In -Negotiation Certification"
"The Contractor by submitting cost or price
information, including wage rates or other actual
unit costs, certifies to the best of its knowledge,
information and belief, that:
a. The wage rates and other factual unit costs
supporting the firm's compensation, as set forth
in the proposal, are accurate, complete and
current as of the contract date;
b. If any of the items of compensation were
increased due to the furnishing of inaccurate,
incomplete or noncurrent wage rates or other
units of costs, the State is entitled to an
adjustment in all appropriate items of
compensation, including profit or fee, to
exclude any significant sum by which the price
was increased because of the defective data. The
University's right to adjustment includes the
right to a price adjustment for defects in costs
or pricing data submitted by a prospective or
actual subcontractor; and
c. If additions are made to the original price of
the contract, such additions may be adjusted to
exclude any significant sums where it is
determined the price has been increased due to
inaccurate, incomplete or noncurrent wage rates
and other factual costs."
25. Contract Affidavit.
Mandatory contract addendum. The contract addendum
shall be in substantially the same form as follows:
CONTRACT AFFIDAVIT
A. AUTHORIZED REPRESENTATIVE
I HEREBY AFFIRM THAT
I am the ____________ (title) and the duly authorized
representative of (business) _________ and that I possess the
legal authority to make this affidavit on be of myself and the
business for which I am acting.
B. CERTIFICATION OF CORPORATION REGISTRATION AND TAX PAYMENT
I FURTHER AFFIRM THAT-
(1) The business named above is a (domestic []) (foreign [])
corporation registered in accordance with the Corporations and
Associations Article, Annotated Code of Maryland, and that it
is in good standing and has filed all of its annual reports,
together with filing fees, with the Maryland State Department
of Assessments and Taxation, and that the name and address of
its resident agent filed with the State Department of
Assessments and Taxation is:
Name: Address:
(2) Except as validly contested, the business has paid, or has
arranged for payment of, all taxes due the State of Maryland
and has filed all required returns and reports with the
Comptroller of the Treasury, the State Department of
Assessments and Taxation, and the Department of Labor,
Licensing, and Regulation, as applicable, and will have paid
all withholding taxes due the State of Maryland prior to final
settlement.
C. CERTAIN AFFIRMATIONS VALID
I FURTHER AFFIRM THAT:
To the best of my knowledge, information, and belief, each of
the affirmations, certifications, or acknowledgments contained
in that certain Bid/Proposal Affidavit dated , _ _/_ _ /_ _ ,
and executed by me for the purpose of obtaining the contract to
which this Exhibit is attached remains true and correct in all
respects as if made as of the date of this Contract Affidavit
and as if fully set forth herein.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY
THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE
BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: ____________ By: _______________________________________
(Authorized
Representative and Affiant)
F. Mandatory Construction Contract Clauses
1. Application.
a. In addition to the clauses required by this chapter,
each construction contract shall include the clauses
required by USM Procurement Policies and Procedures.
b. If unusual circumstances arise that necessitate the
modification of any mandatory terms and conditions, a
recommendation containing the necessary modification(s) and
including written justification must be approved by the
Procurement Officer and, if appropriate, by legal counsel.
2. Changes.
Mandatory provision for all construction contracts:
"(1) The procurement officer unilaterally may, at any
time, without notice to the sureties, if any, by
written order designated or indicated to be a
change order, make any change in the work within
the general scope of the contract, including but
not limited to changes:
(a) In the specifications (including drawings
and designs);
(b) In the method or manner of performance of
the work;
(c) In the State-furnished facilities,
equipment, materials, services, or site; or
(d) Directing acceleration in the performance
of the work.
(2) Any other written order or an oral order,
including a direction, instruction,
interpretation or determination, from the
procurement officer that causes any such change,
shall be treated as a change order under this
clause, provided that the Contractor gives the
procurement officer written notice stating the
date, circumstances, and source of the order and
that the Contractor regards the order as a
change order.
(3) Except as herein provided, no order, statement,
or conduct of the procurement officer shall be
treated as a change under this clause or entitle
the Contractor to an equitable adjustment
hereunder.
(4) Subject to paragraph 6 (F), below, if any change
under this clause causes an increase or decrease
in the Contractor's cost of, or the time
required for, the performance of any part of the
work under this contract, whether or not changed
by any order, an equitable adjustment shall be
made and the contract modified in writing
accordingly; provided, however, that except for
claims based on defective specifications, no
claim for any change under B, above, shall be
allowed for any costs incurred more than 20 days
before the Contractor gives written notice as
therein required; and provided further, that in
the case of defective specifications for which
the University is responsible, the equitable
adjustment shall include any increased cost
reasonably incurred by the Contractor in
attempting to comply with such defective
specifications.
(5) If the Contractor intends to assert a claim for
an equitable adjustment under this clause, he
shall, within 30 days after receipt of a written
change order under (1) above, or the furnishing
of written notice under (2), above, submit to
the procurement officer a written statement
setting forth the general nature and monetary
extent of such claim, unless this period is
extended by the University. The statement of
claim hereunder may be included in the notice
under (2), above.
(6) Each contract modification or change order that
affects contract price shall be subject to the
prior written approval of the procurement
officer and other appropriate authorities and to
prior certification of the appropriate fiscal
authority of fund availability and the effect of
the modification or change order on the project
budget or the total construction cost. If,
according to the certification of the fiscal
authority, the contract modification or change
order will cause an increase in cost that will
exceed budgeted and available funds, the
modification or change order may not be made
unless sufficient additional funds are made
available or the scope of the project is
adjusted to permit its completion within the
project budget.
(7) No claim by the Contractor for an equitable
adjustment hereunder shall be allowed if
asserted after final payment under this
contract."
3. Variations in Estimated Quantities.
Mandatory provision for only those construction
contracts that contain estimated quantity items:
Variations in Estimated Quantities
"Where the quantity of a pay item in this contract is
an estimated quantity and where the actual quantity
of such pay item varies more than twenty-five percent
(25%) above or below the estimated quantity stated in
this contract, an equitable adjustment in the
contract price shall be made upon demand of either
party. The equitable adjustment shall be based upon
any increase or decrease in costs due solely to the
variation above one hundred twenty-five percent
(125%) or below seventy-five percent (75%) of the
estimated quantity. If the quantity variation is such
as to cause an increase in the time necessary for
completion, the procurement officer shall, upon
receipt of a written request for an extension of time
within ten (10) days from the beginning of the delay,
or within a further period of time which may be
granted by the procurement officer before the date of
final settlement of the contract, ascertain the facts
and make the adjustment for extending the completion
date as in his judgment the findings justify."
4. Suspension of Work.
Mandatory provision for all construction contracts:
Suspension of Work
"(1) The procurement officer unilaterally may order
the Contractor in writing to suspend, delay, or
interrupt all or any part of the work for a
period of time as he may determine to be
appropriate for the convenience of the
University.
(2) If the performance of all or any part of the
work is for an unreasonable period of time,
suspended, delayed, or interrupted by an act of
the procurement officer in the administration of
this contract, or by his failure to act within
the time specified in this contract (or if no
time is specified, within a reasonable time), an
adjustment shall be made for any increase in the
cost of performance of this contract (excluding
profit) necessarily caused by an unreasonable
suspension, delay, or interruption and the
contract modified in writing accordingly.
However, no adjustment shall be made under this
clause for any suspension, delay, or
interruption to the extent (1) that performance
would have been so suspended, delayed, or
interrupted by any other cause, including the
fault or negligence of the Contractor or (2) for
which an equitable adjustment is excluded under
any provision of this contract.
(3) No claim under this clause shall be allowed (1)
for any costs incurred more than 20 days before
the Contractor shall have notified the
procurement officer in writing of the act or
failure to act involved (but this requirement
shall not apply as to a claim resulting from a
suspension order), and (2) unless the claim, in
an amount stated, is asserted in writing as soon
as practicable after the termination of a
suspension, delay, or interruption, but not
later than the date of final payment under the
contract."
5. Differing Site Conditions.
Mandatory provision for all construction contracts:
Differing Site Conditions
"(1) The Contractor shall promptly, and before such
conditions are disturbed, notify the procurement
officer in writing of: (1) subsurface or latent
physical conditions at the site differing
materially from those indicated in this
contract, or (2) unknown physical conditions at
the site of an unusual nature, differing
materially from those ordinarily encountered and
generally recognized as inhering in work of the
character provided for in this contract. The
procurement officer shall promptly investigate
the conditions, and if he finds that such
conditions do materially so differ and cause an
increase or decrease in the Contractor's cost
of, or the time required for, performance of any
part of the work under this contract, whether or
not changed as a result of such conditions, an
equitable adjustment shall be made and the
contract modified in writing accordingly.
(2) No claim of the Contractor under this clause
shall be allowed unless the Contractor has given
the notice required in (1) above; provided,
however, the time prescribed therefor may be
extended by the University.
(3) No claim by the Contractor for an equitable
adjustment hereunder shall be allowed if
asserted after final payment under this con
tract."
6. Disputes.
Mandatory provision for all construction contracts:
"A. This contract is subject to the USM Procurement
Policies and Procedures
B. Except as otherwise provided in this contract or
by law, all disputes arising under or as a
result of a breach of this contract that are not
disposed of by mutual agreement shall be
resolved in accordance with this clause.
C. As used herein, claim means a written demand or
assertion by one of the parties seeking, as a
legal right, the payment of money, adjustment or
interpretation of contract terms, or other
relief, arising under or relating to this
contract. A voucher, invoice, or request for
payment that is not in dispute when submitted is
not a claim under this clause. However, if the
submission subsequently is not acted upon in a
reasonable time, or is disputed as to liability
or amount, it may be converted to a claim for
the purpose of this clause.
D. Within 30 days after contractor knows or should
have known of the basis for a claim relating to
this contract, contractor shall file a written
notice of claim with the procurement officer.
E. Contemporaneously with, or within 30 days after,
the filing of a notice of claim, contractor
shall submit the written claim to the pro
curement officer. If contractor so requests, the
procurement officer, on conditions the
procurement officer deems satisfactory to the
unit, may extend the time in which contractor
must submit the claim. An example of when a
procurement officer may grant an extension
includes situations in which the procurement
officer finds that a contemporaneous or timely
cost quantification following the filing of the
notice of claim is impossible or impractical.
F. The claim shall set forth all the facts
surrounding the controversy. Contractor, at the
discretion of the procurement officer, may be
afforded an opportunity to be heard and to offer
evidence in support of the claim.
G. The procurement officer shall mail or deliver
written notification of the final decision
within:
(1) 90 days after the procurement officer
receives the claim if the claim is an
amount for which the Appeals Board
accelerated procedure, set forth in COMAR
21.10.06.12, may be used;
(2) 180 days after the procurement officer
receives the claim for a claim not covered
under §G(1) of this regulation; or
(3) A longer period that the procurement
officer and contractor agree to in writing.
H. The final decision may award a contract claim
only for those expenses incurred not more than
30 days before contractor was initially required
to have filed the notice of claim.
I. The procurement officer's decision is the final
action of the University. If the procurement
officer fails to render a final decision within
the time required, contractor may deem the
failure to be a final decision not to pay the
claim.
J. If the final decision grants the claim in part
and denies the claim in part, the University
shall pay contractor the undisputed amount.
Payment of the partial claim is not an admission
of liability by the University and does not
preclude the University from recovering the
amount paid if a subsequent determination
modifies the final decision.
K. Contractor may file a written appeal with the
Maryland State Board of Contract Appeals within
30 days of receipt of notice of the decision.
L. Pending resolution of a claim, contractor shall
proceed diligently with the performance of the
contract in accordance with the procurement
officer's decision."
7. Site Investigation.
Mandatory provision for all construction contracts:
Site Investigation
"The Contractor acknowledges that he has investigated
and satisfied himself as to the conditions affecting
the work, including but not restricted to those
bearing upon transportation, disposal, handling and
storage of materials, availability of labor, water,
electric power, roads and uncertainties of weather,
river stages, tides or similar physical conditions at
the site, the conformation and conditions of the
ground, the character of equipment and facilities
needed preliminary to and during prosecution of the
work. The Contractor further acknowledges that he has
satisfied himself as to the character, quality and
quantity of surface and subsurface materials or
obstacles to be encountered insofar as this
information is reasonably ascertainable from an
inspection of the site, including all exploratory
work done by the University, as well as from
information presented by the drawings and specifica
tions made a part of this contract. Any failure by
the Contractor to acquaint himself with the available
information may not relieve him from responsibility
for estimating properly the difficulty or cost of
successfully performing the work. The University
assumes no responsibility for any conclusions or
interpretations made by the Contractor on the basis
of the information made available by the University."
8. Default, Delay and Time Extensions.
Mandatory provision for all construction contracts:
Termination for Default-Damages for Delay-Time
Extensions
"(1) If the Contractor refuses or fails to prosecute
the work, or any separable part thereof, with
such diligence as shall insure its completion
within the time specified in this contract, or
any extension thereof, or fails to complete said
work within this time, the University may, by
written notice to the Contractor, terminate his
right to proceed with the work or the part of
the work as to which there has been delay. In
this event the University may take over the work
and prosecute the same to completion, by
contract or otherwise, and may take possession
of and utilize in completing the work the
materials, appliances, and plant as may be on
the site of the work and necessary therefor.
Whether or not the Contractor's right to proceed
with the work is terminated, he and his sureties
shall be liable for any damage to the University
resulting from his refusal or failure to
complete the work within the specified time.
(2) If fixed and agreed liquidated damages are
provided in the contract and if the University
so terminates the Contractor's right to proceed,
the resulting damage shall consist of such
liquidated damages until a reasonable time as
may be required for final completion of the work
together with any increased costs occasioned the
University in completing the work.
(3) If fixed and agreed liquidated damages are
provided in the contract and if the University
does not so terminate the Contractor's right to
proceed, the resulting damage shall consist of
these liquidated damages until the work is
completed or accepted.
(4) The Contractor's right to proceed may not be so
terminated nor the contractor charged with
resulting damages if:
(a) The delay in the completion of the work
arises from unforeseeable causes beyond the
control and without the fault or negligence
of the Contractor, including but not
restricted to, acts of God, acts of the
public enemy, acts of the State in either
its sovereign or contractual capacity, acts
of another Contractor in the performance of
a contract with the University, fires,
floods, epidemics, quarantine restrictions,
strikes, freight embargoes, unusually
severe weather, or delays of subcontractors
or suppliers arising from unforeseeable
causes beyond the control and without the
fault or negligence of both the Contractor
and the subcontractors or suppliers; and
(b) The Contractor, within 10 days from the
beginning of any such delay (unless the
procurement officer grants a further period
of time before the date of final payment
under the contract), notifies the
procurement officer in writing of the
causes of delay. The procurement officer
shall ascertain the facts and the extent of
the delay and extend the time for
completing the work when, in his judgment,
the findings of fact justify such an
extension, and his findings of fact shall
be final and conclusive on the parties,
subject only to appeal as provided in the
"Disputes" clause of this contract.
(5) If, after notice of termination of the
Contractor's right to proceed under the
provisions of this clause, it is determined for
any reason that the Contractor was not in
default under the provisions of this clause, or
that the delay was excusable under the
provisions of this clause, the rights and
obligations of the parties shall, if the
contract contains a clause providing for
termination for convenience of the University,
be the same as if the notice of termination had
been issued pursuant to the Termination for
Convenience clause. If, in the foregoing
circumstances, this contract does not contain a
clause providing for termination for convenience
of the University, the contract shall be
equitably adjusted to compensate for the
termination and the contract modified
accordingly; failure to agree to any such
adjustment shall be a dispute concerning a
question of fact within the meaning of the
clause of this contract entitled "Disputes".
(6) The rights and remedies of the University
provided in this clause are in addition to any
other rights and remedies provided by law or
under this contract.
(7) As used in paragraph (4) (a) of this clause, the
term subcontractors or suppliers means
subcontractors or suppliers at any tier."
9. Liquidated Damages.
Mandatory provision for all construction contracts
unless the University head determines that the
exclusion of the clause is in the best interest of
the University:
"Liquidated Damages"
"Time is an essential element of the contract and it
is important that the work be vigorously prosecuted
until completion."
"For each day that any work shall remain uncompleted
beyond the time(s) specified elsewhere in the
contract, the Contractor shall be liable for
liquidated damages in the amount(s) provided for in
the solicitation, provided, however, that due account
shall be taken of any adjustment of specified
completion time(s) for completion of work as granted
by approved change orders."
10. Termination for Convenience.
Mandatory provision for all construction contracts:
Termination for Convenience of the University
"(1) The- performance of work under this contract may
be terminated by the University in accordance
with this clause in whole, or from time to time
in part, whenever the procurement officer shall
determine that such termination is in the best
interest of the University. Any such termination
shall be effected by delivery to the Contractor
of a Notice of Termination specifying the extent
to which performance of work under the contract
is terminated, and the date upon which such
termination becomes effective.
(2) After receipt of a Notice of Termination, and
except as otherwise directed by the procurement
officer, the Contractor shall:
(a) Stop work under the contract on the date
and to the extent specified in the Notice
of Termination;
(b) Place no further orders or subcontracts for
materials, services or facilities, except
as may be necessary for completion of the
portion of the work under the contract as
is not terminated;
(c) Terminate all orders and subcontracts to
the extent that they relate to the
performance of work terminated by Notice of
Termination;