PART V. 
MODIFICATION AND TERMINATION OF CONTRACTS



 



§103D-501  Contract clauses and their
administration.  (a)  The policy board shall adopt rules requiring the
inclusion of contract clauses providing for adjustments in prices, time of
performance, or other contract provisions, as appropriate, and covering the
following subjects:



(1)  The unilateral right of the governmental body to
order in writing:



(A)  Changes in the work within the scope of
the contract; and



(B)  Changes in the time of performance of the
contract that do not alter the scope of the contract work;



(2)  Variations occurring between estimated quantities
of work in a contract and actual quantities;



(3)  Suspension of work ordered by the governmental
body; and



(4)  Site conditions differing from those indicated in
the contract, or ordinarily encountered, except that differing site conditions
clauses established by these rules need not be included in a contract:



(A)  When the contract is negotiated;



(B)  When the contractor provides the site or
design; or



(C)  When the parties have otherwise agreed
with respect to the risk of differing site conditions.



(b)  Adjustments in price permitted by rules
adopted under subsection (a) shall be computed in one or more of the following
ways:



(1)  By agreement on a fixed price adjustment before
commencement of the pertinent performance;



(2)  By unit prices specified in the contract or
subsequently agreed upon before commencement of the pertinent performance;



(3)  By the costs attributable to the events or
situations under such clauses with adjustment of profit or fee, all as
specified in the contract or subsequently agreed upon before commencement of
the pertinent performance;



(4)  In any other manner as the contracting parties
may mutually agree upon before commencement of the pertinent performance; or



(5)  In the absence of agreement by the parties:



(A)  For change orders with value not exceeding
$50,000 by documented actual costs of the work, allowing for twenty per cent of
the actual costs for overhead and profit on work done directly by the
contractor and ten per cent on any subcontractor's billing to the contractor
for the contractor's overhead and profit.  There shall be no cap on the total
cost of the work if this method is used.  A change order shall be issued within
fifteen days of submission by the contractor of proper documentation of
completed force account work, whether periodic (conforming to the applicable
billing cycle) or final.  The procurement officer shall return any
documentation that is defective to the contractor within fifteen days after
receipt, with a statement identifying the defect; or



(B)  For change orders with value exceeding
$50,000 by a unilateral determination by the governmental body of the costs
attributable to the events or situations under clauses with adjustment of
profit or fee, all as computed by the governmental body in accordance with
applicable sections of the rules adopted under section 103D-601 and subject to
the provisions of part VII.  When a unilateral determination has been made, a
unilateral change order shall be issued within ten days.  Costs included in the
unilateral change order shall allow for twenty per cent of the actual costs for
overhead and profit on work done directly by the contractor and ten per cent on
any subcontractor's billing to the contractor for the contractor's overhead and
profit.  Upon receipt of the unilateral change order, if the contractor does
not agree with any of the terms or conditions, or the adjustment or
nonadjustment of the contract time or contract price, the contractor shall file
a notice of intent to claim within thirty days after the receipt of the written
unilateral change order.  Failure to file a protest within the time specified
shall constitute agreement on the part of the contractor with the terms,
conditions, amounts, and adjustment or nonadjustment of the contract time or
the contract price set forth in the unilateral change order.



A contractor shall be required to submit cost
or pricing data if any adjustment in contract price is subject to the
provisions of section 103D-312.  A fully executed change order or other
document permitting billing for the adjustment in price under any method listed
in paragraphs (1) through (4) shall be issued within ten days after agreement
on the method of adjustment.



(c)  The policy board shall adopt rules
requiring the inclusion in contracts of clauses providing for appropriate
remedies and covering the following subjects:



(1)  Liquidated damages as appropriate;



(2)  Specified excuses for delay or nonperformance;



(3)  Termination of the contract for default; and



(4)  Termination of the contract in whole or in part
for the convenience of the governmental body.



(d)  The chief procurement officer or the head
of a purchasing agency may vary the clauses that may be required to be included
in contracts under the rules adopted under subsections (a) and (c); provided
that:



(1)  Any variations are supported by a written
determination that states the circumstances justifying such variations; and



(2)  Notice of any such material variation be stated
in the invitation for bids or request for proposals when the contract is
awarded under section 103D-302 or 103D-303. [L Sp 1993, c 8, pt of §2; am L
1997, c 352, §23; am L 2000, c 164, §3; am L 2006, c 291, §4]