PART V. MODIFICATION AND TERMINATION OF CONTRACTS

 

§103D-501  Contract clauses and theiradministration.  (a)  The policy board shall adopt rules requiring theinclusion of contract clauses providing for adjustments in prices, time ofperformance, or other contract provisions, as appropriate, and covering thefollowing subjects:

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

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

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

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

(3)  Suspension of work ordered by the governmentalbody; and

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

(A)  When the contract is negotiated;

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

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

(b)  Adjustments in price permitted by rulesadopted under subsection (a) shall be computed in one or more of the followingways:

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

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

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

(4)  In any other manner as the contracting partiesmay 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 ofthe actual costs for overhead and profit on work done directly by thecontractor and ten per cent on any subcontractor's billing to the contractorfor the contractor's overhead and profit.  There shall be no cap on the totalcost of the work if this method is used.  A change order shall be issued withinfifteen days of submission by the contractor of proper documentation ofcompleted force account work, whether periodic (conforming to the applicablebilling cycle) or final.  The procurement officer shall return anydocumentation that is defective to the contractor within fifteen days afterreceipt, 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 costsattributable to the events or situations under clauses with adjustment ofprofit or fee, all as computed by the governmental body in accordance withapplicable sections of the rules adopted under section 103D-601 and subject tothe provisions of part VII.  When a unilateral determination has been made, aunilateral change order shall be issued within ten days.  Costs included in theunilateral change order shall allow for twenty per cent of the actual costs foroverhead and profit on work done directly by the contractor and ten per cent onany subcontractor's billing to the contractor for the contractor's overhead andprofit.  Upon receipt of the unilateral change order, if the contractor doesnot agree with any of the terms or conditions, or the adjustment ornonadjustment of the contract time or contract price, the contractor shall filea notice of intent to claim within thirty days after the receipt of the writtenunilateral change order.  Failure to file a protest within the time specifiedshall constitute agreement on the part of the contractor with the terms,conditions, amounts, and adjustment or nonadjustment of the contract time orthe contract price set forth in the unilateral change order.

A contractor shall be required to submit costor pricing data if any adjustment in contract price is subject to theprovisions of section 103D-312.  A fully executed change order or otherdocument permitting billing for the adjustment in price under any method listedin paragraphs (1) through (4) shall be issued within ten days after agreementon the method of adjustment.

(c)  The policy board shall adopt rulesrequiring the inclusion in contracts of clauses providing for appropriateremedies 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 partfor the convenience of the governmental body.

(d)  The chief procurement officer or the headof a purchasing agency may vary the clauses that may be required to be includedin contracts under the rules adopted under subsections (a) and (c); providedthat:

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

(2)  Notice of any such material variation be statedin the invitation for bids or request for proposals when the contract isawarded under section 103D-302 or 103D-303. [L Sp 1993, c 8, pt of §2; am L1997, c 352, §23; am L 2000, c 164, §3; am L 2006, c 291, §4]