§ 11-35-3410 — Contract clauses and their administration.

(1) Contract Clauses. The board may promulgate regulations requiring the inclusion in state supplies, services, and information technology contracts of clauses providing for adjustments in prices, time of performance, or other contract provisions, as appropriate, and covering the following subjects: (a) the unilateral right of a governmental body to order in writing changes in the work within the general scope of the contract and temporary stopping of the work or delaying performance; and (b) variations occurring between estimated quantities of work in a contract and actual quantities. (2)(a) Price Adjustments. Adjustments in price pursuant to clauses promulgated under subsection (1) of this section shall be computed and documented with a written determination. The price adjustment agreed upon shall approximate the actual cost to the contractor, and all costs incurred by the contractor shall be justifiable compared with prevailing industry standards, including a reasonable profit. Costs shall be properly itemized and supported by substantiating data sufficient to permit evaluation before commencement of the pertinent performance or as soon thereafter as practicable, and shall 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 such clauses with adjustment for profit or fee, all specified in the contract or subsequently agreed upon; (iii) by agreement on a fixed price adjustment; (iv) by rates determined by the Public Service Commission and set forth in the applicable tariffs; (v) in such other manner as the contracting parties may mutually agree; or (vi) 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 such clauses, with adjustment of profit or fee, all as computed by the governmental body in accordance with applicable sections of the regulations issued under Article 13 of this chapter, if any, and subject to the provisions of Article 17 of this chapter. (b) A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of Section 11-35-1830. (3) Additional Contract Clauses. The board shall be authorized to promulgate regulations requiring the inclusion in state supplies, services, and information technology contracts of clauses providing for appropriate remedies and covering the following subjects: (a) specified excuses for delay or nonperformance; (b) termination of the contract for default; and (c) termination of the contract in whole or in part for the convenience of the governmental body. (4) Modification of Clauses. The chief procurement officer may vary the clauses promulgated by the board under subsection (1) and subsection (3) of this section for inclusion in any particular state contract; provided, that any variations are supported by a written determination that states the circumstances justifying such variations; and provided, further, that notice of any such material variations shall be stated in the invitation for bids or request for proposals.

Legislative History

HISTORY: 1981 Act No. 148, SECTION 1; 1997 Act No. 153, SECTION 1; 2006 Act No. 376, SECTION 48; 2019 Act No. 41 (S.530), SECTIONS 51.A, 51.B, 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 51.A, in (1)(a), substituted "general scope of the contract" for scope of the contract. 2019 Act No. 41, SECTION 51.B, in (2)(a)(vi), inserted ", if any,". ARTICLE 13 Cost Principles