(1)
As used in this section:
(a) Construction means the process of building, altering, repairing,
improving, or demolishing any public structure or building or any other public
improvements of any kind to any real property that is owned or leased by a
contracting entity or by a public school and is used for the direct benefit of or in
support of a public school.
(b) Contractor means any person having a contract with a public school
contracting entity. Contractor does not include an employee of a public school
contracting entity or of a public school to be directly benefited by or supported by a
public school contract.
(c) Public school contract means any type of agreement, regardless of
what it may be called, entered into between a public school contracting entity and a
contractor where the principal purpose is to acquire supplies, services, or
construction or to dispose of supplies for the direct benefit of or in support of a
public school; except that public school contract does not include an agreement
for the acquisition of professional services, as defined in section 24-30-1402 (6).
(d) Public school contracting entity means an entity that is authorized to
contract for the direct benefit of or support of a public school and enters into a
public school contract. Public school contracting entity includes a school district
and, to the extent authorized by law, a public school, an administrative unit, as
defined in section 22-20-103 (1), a participating provider, as defined in section 22-82.9-301 (6), or any other entity that is authorized to contract for the direct benefit
of or support of a public school.
(2) (a) A term or condition in a public school contract is void ab initio if the
term or condition:
(I) Requires the public school contracting entity to indemnify or hold
harmless another person;
(II) Specifies that the public school contracting entity agrees to binding
arbitration or to any other binding extra-judicial dispute resolution process;
(III) Specifies that the public school contracting entity agrees to limit liability
of another person for bodily injury, death, or damage to property of the public
school contracting entity or a public school directly benefited by or supported by
the public school contract that is caused by the negligence or willful misconduct of
the person or of the person's employees or agents;
(IV) Purports to waive, alter, or limit the application of any provision of the
Colorado Governmental Immunity Act, article 10 of title 24;
(V) Purports to waive, alter, or limit the application of the Student Data
Transparency and Security Act, article 16 of this title 22, the provisions of sections
6-1-713 and 6-1-713.5 relating to protection and disposal of personal identifying
information, the provisions of article 73 of title 24 relating to security breaches and
personal information, or, upon it taking effect on July 1, 2023, the Colorado Privacy
Act, part 13 of article 1 of title 6; or
(VI) Conflicts with Colorado law or rules promulgated pursuant to Colorado
law or conflicts with any provision required to be included or deemed to be included
in a public school contract by subsection (2)(d) of this section as of the date the
contract is executed.
(b) If a public school contract contains a term or condition that is void ab
initio under subsection (2)(a) of this section, the public school contract is otherwise
enforceable as if it did not contain the void term or condition.
(c) All public school contracts, except for contracts with another
government, are governed by Colorado law notwithstanding any contract term or
condition to the contrary.
(d) A public school contract must include provisions, and if such provisions
are omitted, the contract is deemed to include provisions that:
(I) State that, subject to the requirements of section 24-91-103.6 pertaining
to contracts for the construction and design of public works projects, any and all
contractual financial obligations of the public school contracting entity that are
payable after the current fiscal year are contingent on money to pay the obligations
being appropriated, budgeted, and otherwise made available;
(II) Require the contractor to comply with all applicable federal, state, and
local laws, rules, and regulations in effect when the contract is executed or
thereafter established, including, without limitation:
(A) Laws, rules, and regulations applicable to discrimination and unfair
employment practices; and
(B) Laws, rules, and regulations that require the protection of personal
identifying information, including student personal identifying information, as
defined in section 22-16-103 (13), such as the federal Family Educational Rights
and Privacy Act of 1974, 20 U.S.C. sec. 1232g, the Student Data Transparency and
Security Act, article 16 of this title 22, the provisions of sections 6-1-713 and 6-1-713.5 relating to protection and disposal of personal identifying information, the
provisions of article 73 of title 24 relating to security breaches and personal
information, or, upon it taking effect on July 1, 2023, the Colorado Privacy Act,
part 13 of article 1 of title 6; and
(C) Accessibility standards for an individual with a disability adopted by the
office of information technology pursuant to section 24-85-103.
(III) Require the contractor to perform its duties as an independent
contractor, to pay when due all applicable employment taxes and income taxes for
its employees incurred in the performance of the contract, and to provide and keep
in force workers' compensation and unemployment compensation insurance in the
amounts required by law; and
(IV) Require the contractor to indemnify, hold harmless, and assume liability
on behalf of the public school contracting entity, the public school, and the public
school's employees and agents, for all costs, expenses, claims, damages, liabilities,
court awards, attorney fees and related costs, and any other amounts incurred by a
school district in relation to a contractor's noncompliance with accessibility
standards for an individual with a disability adopted by the office of information
technology pursuant to section 24-85-103.
(e) A public school contracting entity may require that the contractor's
compliance with accessibility standards for an individual with a disability adopted
by the office of information technology pursuant to section 24-85-103 is
determined and attested to by a qualified third party selected by the public school
contracting entity.
(3) (a) For contracts executed on or after July 1, 2023, when reviewing
proposals received and for selecting the entity to provide technology, in
accordance with the procurement laws applicable to the department, school
district, or institute charter school, the department, school district, or institute
charter school may consider life-cycle cost.
(b) For the purpose of this subsection (3), unless the context otherwise
requires:
(I) Life-cycle cost means the purchase cost of technology minus the resale
value at the end of the technology's expected useful life, in addition to the
maintenance incurred during the technology's expected useful life.
(II) Technology means any device, computer, hardware, software, or
related accessory.