§ 11-35-3040 — Contract clauses and their administration.

(1) Contract Clauses. State construction contracts and subcontracts may include clauses providing for adjustments in prices, time of performance, and other appropriate contract provisions including, but not limited to: (a) the unilateral right of a governmental body to order in writing: (i) all changes in the work within the general scope of the contract; and (ii) all changes in the time of performance of the contract which do not alter the general scope of the contract work; (b) variations occurring between estimated quantities of work in the contract and actual quantities; (c) suspension of work ordered by the governmental body; (d) site conditions differing from those indicated in the contract or ordinarily encountered. (2) Price Adjustments. (a) Adjustments in price pursuant to clauses adopted or promulgated pursuant to Section 11-35-2010 must be computed and documented with a written determination. The price adjustment agreed upon must approximate the actual cost to the contractor and all costs incurred by the contractor must be justifiably compared with prevailing industry standards, including reasonable profit. Costs must be properly itemized and supported by substantiating data sufficient to permit evaluation before commencement of the pertinent performance or as soon after that as practicable, and must be arrived at through whichever one of the following ways is the most valid approximation of the actual cost to the contractor: (i) by unit prices specified in the contract or subsequently agreed upon; (ii) by the costs attributable to the events or situations under those clauses with adjustment of profits or fee, all as specified in the contract or subsequently agreed upon; (iii) by agreement on a fixed price adjustment; (iv) in another manner as the contracting parties may mutually agree; or (v) in the absence of agreement by the parties, through unilateral determination by the governmental body of the costs attributable to the events or situations under those clauses, with adjustment of profit or fee, all as computed by the governmental body in accordance with applicable sections of the regulations issued pursuant to this chapter and subject to the provisions of Article 17 of this chapter. (b) A contractor is required to submit cost or pricing data if an adjustment in contract price is subject to the provisions of Section 11-35-1830. (3) Additional Contract Clauses. The construction contracts and subcontracts may include clauses providing for appropriate remedies that cover as a minimum: (a) specified excuses for delay or nonperformance; (b) termination of the contract for default; (c) termination of the contract in whole or in part for the convenience of the governmental body. (4) Modification of Required Clauses. The chief procurement officer may vary the clauses promulgated by the board pursuant to subsection (1) and subsection (3) of this section for inclusion in a particular construction contract if the variations are supported by a written determination that states the circumstances justifying the variations, if notice of a material variation is stated in the invitation for bids.

Legislative History

HISTORY: 1981 Act No. 148, SECTION 1; 1997 Act No. 153, SECTION 1; 2006 Act No. 376, SECTION 42; 2019 Act No. 41 (S.530), SECTION 44, eff May 13, 2019. Editor's Note 2019 Act No. 41, SECTION 80, provides as follows: "SECTION 80. This act takes effect upon approval by the Governor and applies to solicitations issued after that date." Effect of Amendment 2019 Act No. 41, SECTION 44, in (1)(a), in (i) and (ii), inserted "general" and made a nonsubstantive change.