Contract Negotiation, Execution and Effective Start Date

(1) Contract and Contract Amendment Negotiation. The Department may negotiate with Selected Bidder(s) prior to executionof a Contract, and with Contractors after a Contract has been executed, as follows: (a) The language of the RFR shall determine what elements of Contract performance or cost, within the scope of the original RFR and a Bidder's or Contractor's Response, may be negotiated. If the RFR is silent as to what can be negotiated, the Procuring Department and a Selected Bidder or Contractor may negotiate only the details of performance identified within the scope of the original RFR and the Bidder's or Contractor's Response, and may not increase or change the scope of performance or costs. (b) The Department and a Selected Bidder or Contractor may negotiate additional language which clarifies their understanding of, but does not change, the language of the Contract or Contract performance identified within the scope of the original RFR and the Bidder's or Contractor's Response. (c) Notwithstanding801 CMR 21.07(1)(a), the Department and a Selected Bidder or Contractor may negotiate a change in any element of Contract performance or cost, identified in the original RFR or the Bidder's or Contractor's Response, which results in lower costs or in a more cost effective or better value than was presented in the Bidder's or Contractor's originally selected Best Value Response. (2) Contract Execution. (a) The identification of a Selected Bidder(s) shall create no contractual obligation on the Procuring Department or the State. Performance may not begin, until a Contract is properly executed. The execution ofa Contractisconditioned upon the Procuring Department's acceptance of a Selected Bidder's Response excluding any clauses or sections that are stricken by the Department as unacceptable and including any additional negotiated language as authorized under 801 CMR 21.07(1). (b) Commonwealth Terms and Conditions. An authorized signatory of a Bidder must execute a Commonwealth Terms and Conditions, which is executed only once and must be filed as prescribed by CTR. A Commonwealth Terms and Conditions will be incorporated by reference into and shall apply to any Contract for Commodities or Services, or both, that is executed by the Bidder and any Department of the State. (c) Standard Contract Form. An authorized signatory ofthe Contractor and the Department must execute a Standard Contract Form for Procurements under 801 CMR 21.00 in accordance with policies and procedures issued by ANF, OSD and CTR. The Contract shall incorporate by reference a Commonwealth Terms and Conditions and will include the RFR, the Bidder’s Response, excludinganyclauses or sections that are stricken by the Department as unacceptable and including any additional negotiated language as authorized under 801 CMR 21.07(1). Contracts must be filed as prescribed by CTR. (d) A Selected Bidder's Response shall be disqualified if the Procuring Department determines that the Bidder: 1. is intentionally or unreasonably delaying the timely execution of a Commonwealth Terms and Conditions or the Standard Contract Form or is unable to execute timely even for reasonable delays; 2. conditions execution of a Commonwealth Terms and Conditions or the Standard Contract Form upon the ProcuringDepartment'sacceptance ofadditionalmaterial or amended Contract terms and conditions, or specifies that the Bidder's Response is "non-negotiable", "all-or- nothing" or that there can be "no substitutions"; 3. negotiates in bad faith; 4. refuses to execute a Commonwealth Terms and Conditions or the Standard Contract Form; 5. demands that the Department execute the Bidder's Contract form instead of a Commonwealth Terms and Conditions or the Standard Contract Form; or 6. is unable to reach final agreement on contractual terms with the Department within a reasonable time as determined by the Department. (e) If a Selected Bidder's Response is disqualified, for any reason, the Procuring Department may negotiate a Contract with the next Best Value qualified Bidder(s). (3) Contract Effective Start Date. Notwithstanding verbal representations by the parties, or an earlier start date listed in the Standard Contract Form, the effective start date of a Contract shall be the latest of the following dates: (a) the date the Standard Contract Form has been executed by an Authorized Signatory of the Contractor; (b) the date the Standard Contract Form has been executed by an Authorized Signatory of the Procuring Department; (c) the date of Secretariat or other approval(s) required by law or regulation, including approval of legal services contracts by the Governor’s Chief Legal Counsel and, for litigation services, by the Office of the Attorney General; or (d) a later date specified in the Standard Contract Form.