2016 Colorado Revised Statutes
Title 24 - Government - State
Procurement Code
Article 103.5 - Contract Performance
§ 24-103.5-101. Monitoring of vendor performance - definitions

(1) (a) For purposes of this section, "governmental body" shall have the same meaning as set forth in section 24-101-301 (10); except that, for purposes of this section, "governmental body" shall also include elected officials.

(b) (Deleted by amendment, L. 2010, (SB 10-003), ch. 391, p. 1853, § 32, effective June 9, 2010.)

(2) Each personal services contract entered into pursuant to this code with a value of one hundred thousand dollars or more shall contain:

(a) Performance measures and standards developed specifically for the contract by the governmental body administering the contract. The performance measures and standards shall be negotiated by the governmental body and the vendor prior to execution of the contract and shall be incorporated into the contract. The measures and standards shall be used by the governmental body to evaluate the performance of the governmental body and the vendor under the contract.

(b) An accountability section that requires the vendor to report regularly on achievement of the performance measures and standards specified in the contract and that allows the governmental body to withhold payment until successful completion of all or part of the contract and the achievement of established performance standards. The accountability section shall include a requirement that payment by the governmental body to the vendor shall be made without delay upon successful completion of all or any part of the contract in accordance with the payment schedule specified in the contract or as otherwise agreed upon by the parties.

(c) Monitoring requirements that specify how the governmental body and the vendor will evaluate each others' performance, including progress reports, site visits, inspections, and reviews of performance data. The governmental body shall use one or more monitoring processes to ensure that the results, objectives, and obligations of the contract are met.

(d) Methods and mechanisms to resolve any situation in which the governmental body's monitoring assessment determines noncompliance, including termination of the contract.

(3) Each governmental body administering the personal services contract shall, within existing resources of the governmental body, designate at least one person within the governmental body responsible for monitoring whether the criteria described in subsection (2) of this section are met, whether and to what extent the contract was completed according to the performance schedule specified in the contract, satisfaction of the scope of the vendor's work as specified in the contract, and whether and to what extent the vendor met or exceeded budgetary requirements under the contract.

(4) Before the governmental body may enter into a personal services contract, the person selected in subsection (3) of this section shall certify that the proposed performance measures and standards, data sources, and data collection methods provide a valid basis for assessing the vendor's performance.

(5) In the case of a contract that has been renewed in a subsequent fiscal year, the governmental body shall certify annually whether the vendor on any contract is complying with the terms of the contract. If the governmental body determines that the vendor has not complied with the contract terms, including but not limited to performance standards and measurable outcomes, the state shall be entitled to any remedy available under law in the case of contract nonperformance, including but not limited to termination of the contract and the return of any and all payments made to the vendor by the state under the contract; except that the recovery of any moneys by the state shall be reduced by the value of any contractual benefits realized by the state from partial performance by the vendor under the contract. If a vendor is deemed to be in default under any one particular contract with the state, the state may, upon a showing of good cause, declare any or all other contracts it has entered into with the vendor to be in default.

(6) The centralized contract management system required by section 24-102-205 (3) (a) shall include such information as will allow the executive director and the governmental body to evaluate the prior record of a particular vendor in meeting performance measures and standards under paragraph (a) of subsection (2) of this section in connection with a personal services contract to which it has been a party. If a particular vendor demonstrates a gross failure to meet such performance measures and standards in connection with one or more contracts to which it has been a party, the executive director, upon the request of and with a showing of good cause by a governmental body, may remove the name of the vendor from the database and prohibit the vendor from bidding on future contracts. Upon a showing of good cause by a vendor or governmental body, the executive director may reinstate the name of the vendor to the database. If a vendor disputes the removal of its name from the database or the prohibition of the vendor from bidding on future contracts, the vendor may exercise the debarment protest and appeal rights specified in section 24-109-105, 24-109-107, 24-109-201, or 24-109-202. If, upon completion of an appeal filed with the executive director or the Denver district court, as applicable, the vendor is not satisfied with the resolution of the appeal, the vendor may file a rebuttal statement that shall be maintained as part of the vendor evaluation record. The vendor's sole remedy in contesting such removal or prohibition shall be reversal of the debarment or submission of the rebuttal statement in accordance with the requirements of this subsection (6).

(7) Notwithstanding any other provision of this section:

(a) Nothing in this section shall be construed to apply to any contract to which the state is a party under medicare, the "Colorado Medical Assistance Act", articles 4 to 6 of title 25.5, C.R.S., the "Children's Basic Health Plan Act", article 8 of title 25.5, C.R.S., or the "Colorado Indigent Care Program", part 1 of article 3 of title 25.5, C.R.S.

(b) The provisions of this section shall not take effect until the centralized contract management system required by section 24-102-205 (3) (a) has been implemented.