§ 4-61 — Actions against the state on highway and public works contracts. Arbitration.

Connecticut § 4-61

• Jurisdiction: Connecticut
• Title 4: Management of State Agencies
• Ch. 48: Organization of State Agencies

Text

(a) Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Administrative Services, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier. No action on a claim under such contract shall be brought except within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends three years after the acceptance of the work by the agency head of the department administering the contract evidenced by a certificate of acceptance issued to the contractor or three years after the termination of the contract, whichever is earlier. Issuance of such certificate of acceptance shall not be a condition precedent to the commencement of any action. Acceptance of an amount offered as final payment shall not preclude any person, firm or corporation from bringing a claim under this section. Such action shall be tried to the court without a jury. All legal defenses except governmental immunity shall be reserved to the state. In no event shall interest be awarded under section 13a-96 and section 37-3a by a court or an arbitrator to the claimant for the same debt for the same period of time. Interest under section 37-3a shall not begin to accrue to a claimant under this section until at least thirty days after the claimant submits a bill or claim to the agency for the unpaid debt upon which such interest is to be based, along with appropriate documentation of the debt when applicable. Any action brought under this subsection shall be privileged in respect to assignment for trial upon motion of either party. (b) As an alternative to the procedure provided in subsection (a) of this section, any such person, firm or corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such person, firm or corporation and the agency head and (2) the provisions of subsections (b) to (e), inclusive, of this section, except that if the parties cannot agree upon a dispute resolution entity, the rules of the American Arbitration Association and the provisions of said subsections shall apply. The provisions of this subsection shall not apply to claims under a contract unless notice of each such claim and the factual bases of each claim has been given in writing to the agency head of the department administering the contract within the time period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier. A demand for arbitration of any such claim shall include the amount of damages and the alleged facts and contractual or statutory provisions which form the basis of the claim. No action on a claim under such contract shall be brought under this subsection except within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends three years after the acceptance of the work by the agency head of the department administering the contract evidenced by a certificate of acceptance issued to the contractor or three years after the termination of the contract, whichever is earlier. Issuance of such certificate of acceptance shall not be a condition precedent to the commencement of any action. (c) Once a notice of claim is given to the agency head as required by subsection (b) of this section, each party shall allow the other to examine and copy any nonprivileged documents which may be relevant either to the claimant's claims or to the state's defenses to such claims. Requests to examine and copy documents which have been prepared by the contractor in order to submit a bid shall be subject to a claim of privilege and grounds for an application to any court or judge pursuant to section 52-415 for a decision on whether such documents constitute trade secrets or other confidential research, development or commercial information and whether such documents shall not be disclosed to the state or shall be disclosed to the state only in a designated way. Any such documents for which no decision is sought or privilege obtained shall not be subject to disclosure under section 1-210 and shall not be disclosed by the agency to any person or agency that is not a party to the arbitration. Such documents shall be used only for settlement or litigation of the parties' claims. The arbitrators shall determine any issue of relevance of such documents after an in camera inspection. The arbitrators shall seal such documents during arbitration and shall return such documents to the claimant after final disposition of the claim. (d) Hearings shall be scheduled for arbitration in a manner that shall ensure that each party shall have reasonable time and opportunity to prepare and present its case, taking into consideration the size and complexity of the claims presented. Unless the parties agree otherwise, no evidentiary hearing on the merits of the claim may be held less than six months after the demand for arbitration is filed with the dispute resolution entity. (e) The arbitrators shall conduct the hearing and shall hear evidence as to the facts, and arguments as to the interpretation and application of contractual provisions. After the hearing, the arbitrators shall issue in writing: (1) Findings of fact, (2) a decision in which the arbitrators interpret the contract and apply it to the facts found and (3) an award. The arbitrators' findings of fact and decision shall be final and conclusive and not subject to review by any forum, tribunal, court or government agency, for errors of fact or law. Awards shall be final and binding and subject to confirmation, modification or vacation pursuant to chapter 909. (f) Claims brought pursuant to this section may be submitted for mediation under the mediation rules of such dispute resolution entity as the parties may agree upon. (g) This section shall apply to claims brought on or after July 1, 1991. The provisions of sections 4-61 , 4b-97 , 13b-57a , 13b-57b and 13b-57c of the general statutes, revised to January 1, 1991, shall apply to claims brought before July 1, 1991.

Legislative History

(1957, P.A. 229; 1961, P.A. 555; 1969, P.A. 429; 768, S. 60; 1971, P.A. 112; P.A. 80-483, S. 158, 186; P.A. 85-113, S. 1, 2; P.A. 86-253; P.A. 88-230, S. 1, 12; P.A. 90-95, S. 1; 90-98, S. 1, 2; P.A. 91-284, S. 1, 4; P.A. 92-228, S. 8; P.A. 93-142, S. 4, 7, 8; P.A. 95-220, S. 4–6; P.A. 11-51, S. 90; P.A. 13-247, S. 200.) History: 1961 act expanded section to include all public works, added notice provision, limitation provision and provision allowing claim after acceptance of amount offered as final payment and deleted provision precluding inclusion of interest or costs in judgment against state; 1969 acts replaced specific reference to highway and public works departments with reference to any department, commission or agency, included design contracts under provisions of section and provided for privileged actions upon motion of either party–P.A. 768 calling for change of state highway department to commissioner of transportation was disregarded; 1971 act replaced references to “acceptance of contract” with references to “acceptance of work” done by contract and supported by certificate of acceptance issued by agency head to contractor, thus clarifying section; P.A. 80-483 replaced “Hartford county” with “judicial district of Hartford-New Britain”; P.A. 85-113 added reference to construction management; P.A. 86-253 amended Subsec. (a) to extend applicability to any highway, bridge, building or other public works of “any political subdivision of the state” and added Subsec. (b) providing for arbitration of disputes; P.A. 88-230 replaced “judicial district of Hartford-New Britain” with “judicial district of Hartford”, effective September 1, 1991; P.A. 90-95 expanded section by allowing contract disputes to be settled by any dispute resolution entity not solely by the American Arbitration Association and added requirement that notice include amount of damages and alleged facts forming basis of claim; P.A. 90-98 changed the effective date of P.A. 88-230 from September 1, 1991, to September 1, 1993; P.A. 91-284 amended Subsec. (a) to authorize action against state in superior court for claims arising out of awarding of contract by commissioner of public works, require as prerequisite to bringing any action against state in superior court under Subsec. (a) that the “factual bases” for claims be given to “agency head” of department administering contract, prohibit awarding of interest under Secs. 13a-96 and 37-3a to claimant for same debt for same period and prohibit accrual of interest until at least 30 days after claimant submits bill or claim for unpaid debt, amended Subsec. (b) by substituting “agency head” for “commissioner of transportation” in Subdiv. (1), adding Subdiv. (2), making changes for consistency with Subsec. (a) and requiring that a demand for arbitration include “contractual or statutory provisions” which form basis of claim, and added Subsecs. (c) to (g), inclusive, re examination and copying of documents, arbitration procedure, mediation and the application of this section; P.A. 92-228 amended Subsecs. (a) and (b) to change the time period within which notice of a claim shall be given and action on a claim shall be brought; P.A. 93-142 changed the effective date of P.A. 88-230 from September 1, 1993, to September 1, 1996, effective June 14, 1993; P.A. 95-220 changed the effective date of P.A. 88-230 from September 1, 1996, to September 1, 1998, effective July 1, 1995; pursuant to P.A. 11-51, “Commissioner of Public Works” was changed editorially by the Revisors to “Commissioner of Construction Services” in Subsec. (a), effective July 1, 2011; pursuant to P.A. 13-247, “Commissioner of Construction Services” was changed editorially by the Revisors to “Commissioner of Administrative Services” in Subsec. (a), effective July 1, 2013. Cited. 169 C. 253; 170 C. 434. Does not operate to waive immunity from suits based on type of contract in question; remedy lies with claims commissioner. 178 C. 352. Contract involved essentially the purchase of laundry equipment and work required to install the equipment was not sufficient for the contract to qualify under statute. 190 C. 212. Contracts for construction of city streets and a city bridge do not come within provisions of statute. 198 C. 185. Cited. 217 C. 281; 239 C. 93. Claim is barred unless it arises directly “under” contract, as opposed to “related to”, “connected with” or “derived from”. 250 C. 553. The waiver of sovereign immunity contained in section requires all existing disputed claims arising under a public works contract to be litigated or arbitrated in a single action. 287 C. 1. Defendant state agency expressly agreed to arbitration proceedings under section and therefore waived judicial review of the issue of arbitrability. 294 C. 695. Limited waiver of government immunity from suit does not abrogate doctrine of nullum tempus, i.e. no time runs against the king. 307 C. 412. Notice and demand re arbitration of liquidated damages claim was sufficient where it alerted department to the general nature of that claim, which is all that section requires. 319 C. 582. Cited. 28 CA 175; 29 CA 292. Arbitration proceeding under section is not an action under Sec. 52-592. 87 CA 367. Since the stated basis of the unjust enrichment claim was that plaintiff performed services and provided materials that were not contemplated by the contract itself, the claim does not fall directly under the contract as required by the statute and therefore sovereign immunity bars the claim. 130 CA 211. Department explicitly contested arbitrability of matter and thereby did not waive judicial review of arbitrator's decision re arbitrability of claim; arbitration panel exceeded its authority by rendering award on a claim that was defined by a statutory waiver of sovereign immunity rather than by a contractual agreement. 141 CA 738; judgment reversed, see 319 C. 582. Parties may agree to arbitrate as alternative to proceeding by suit. 28 CS 173. Action for breach of contract for highway design made in 1966 cannot be maintained as amendment extending section to design contracts was passed in 1969. 31 CS 313. Cited. 37 CS 50. Subsec. (a): Cited. 211 C. 370; 221 C. 346. Notice under Subsec. does not require explicit statement of intent to bring an action, but only factually adequate written notice by a contractor to a department head asserting a right to payment of money believed to be owed, and plaintiff's letter constituted sufficient notice of claim. 299 C. 167. Subsec. (e): Because statute governs form of an arbitrator's findings, decision and award and contains no well-defined, explicit or clear requirement that arbitration award be consistent with findings of fact, plaintiff could not establish the elements necessary to vacate arbitration award on the ground that arbitration panel manifestly disregarded the law. 273 C. 746.