Maine Standard Specifications — Highways and Bridges — Section 104.4

advocate capacity. The preceding sentence does not prohibit th e Commissioner from communicating with, or having the a id or advice of all other De partment staff, counsel, or consultants. This Section does not apply where the Commissione r has delegated hearing the Appeal to other Department personne l, in which case, this Secti on shall apply instead to the Commissioner’s delegate.

111.1.9 Contract Modification Required All changes to the Cont ract that regard Issues or Disputes and that affect compensation, time, quality, or other Contract requirements must be made by written Contract Modification as p rovided by Section 109.8 - Contract Modification.

111.2Project Level Negotiation

111.2.1 Early Negotiation The parties must first comply with all requirements of 111.2.2 Detailed Notice of Dispute If Early Negotiation fails to resolve the Issue within 45 Days of the date of Recei pt of the written Notice of Issue for Consideration Conforming to Section 104.4.5(A) - E arly Negotiation, and if th e Contractor desires additional consideration by the Department, then the Contractor must Deliver a written Detailed Notice of Dispute to the Program Manager within 14 Days of the expiration of said 45-Day period. At a minimum, the Detailed Notice of Dispute sh all include all of the following information in sufficient detail to allow reasoned an alysis as determined by the Program Manager:

A.A description of the backgr ound of Dispute, including the date(s) the Issue or

Dispute first arose and the date the Contractor provided the Pr oject Manager or Resident with the “Notice of Issu e for Consideration” Conformin g to Section 104.4.5(A) - Early Negotiation;

B.All Contract provisions that are relevant to the Dispute;

C.All facts relevant to the Dispute, including all non-Contr act Documents and all

non-documentary facts, including identification of all persons with knowledge of relevant facts and a synopsis of their testimony;

D.The Contractor’s position as to why the Contract and facts demonstrate that the

Contractor is entitled to additional compensation and/or time;

E.The estimated dollar cost, if any, of the Disputed Work an d how the estimate was

determined;

F.If the Contractor is asserting an Excusable or Compensable Delay occurred, an

analysis of the progress schedule showing the impact on the Cri tical Path; and

G.A specific request for additional compensation or time, or other change to

provisions of the Contract. 111.2.3 Decision by Program Manager Within 30 Days of receivi ng a Detailed Notice of Dispute Conforming to Section 111.2.2 - Detailed Notice of Dispute, the Program Manager will Deliver a written decision to the Contractor on th e specific request made.

111.3Negotiation by Management

111.3.1 Notice of Unresolved Dispute If the Contractor desires additional consideration, the Contractor shall Deliver a written “Notice o f Unresolved Dispute” to the Department's appropriate Bureau Director (hereafter "Director" in this Section 111 - Resolution of Disputes within 14 Days of receiving the Progra m Manager’s decision provided for in Section 111.2.3 - Decision by Program Manager. At a minimum, the Notice of Unresolved Dispute must include th e following information in sufficient detail to allow reasoned analysis as determined by the Director or the director's designee(s): (A) all documentation submitted to the Resident for Project-level negotiation, (B) all decisions rendered by the Program Manager or equivalent Bureau level manager, and (C) all additional information the Contractor desi res the Department to consider. 111.3.2 Additional Documentation Within 14 Days of the receiving a Notice of Unresolved Dispute Conforming to Section 111.3.1, the Director or the Director’s designee(s) may require the C ontractor to provide Additional Do cumentation. If required, the Contractor shall completely and accurately supply all reque sted information in writing within 21 Days of receiving said request. Failure to provide a ll Additional Documentation constitutes a waiver of all claims for additional compensation or time. Additional Documentation may include the following: A. The date(s) on which facts arose which gave rise to the Iss ue or Dispute.

B.The dates the Department Received the “Notice of Issue for Consideration”

Conforming to Section 104.4.5(A) - Early Negotiations - Notice Required and the “Detailed Notice of Dispute” Conforming to Section 111.2.2.

C.A list of all Contract provisions that is relevant to the D ispute and a Statement of

which specific Contract provisi ons the Contractor believes cont rols or is relevant to the outcome of the Dispute.

D.A narrative setting forth the Contractor’s position regardi ng additional compensation

and time, if any, including all supporting facts, including dates, locations, and items of Work affected by the Dispute , and how the Contract provisions set forth in subparagraph C support the Contractor’s position.

E.A list of and copies of all documents that are relevant to the Dispute organized

chronologically. With respect to each document, the list must include its date, the author(s) (including address and telephone numbers), and the re cipient(s).

F.A list of all persons who are involved in or knowledgeable of the Dispute, including

addresses and telephone numbers of such persons. If such perso n has knowledge of oral statements upon which the Contractor is relying, the list must also include the substance of the oral statements, the date(s) they were made, a nd all people present at the time the statement was made.

G.If an extension of time is sought:

1.The specific Days or dates for which it is sought, includin g an explanation of

impact on the Critical Path;

2.The specific reasons the Contractor believes a time extensi on should be granted;

and

3.The specific provisions of the Contract under which it is s ought.

H.If additional compensation is sought, the exact amount soug ht and a breakdown of

that amount into the categories provided by Section 109.7- Equi table Adjustments to Compensation and Time.

I.An oath consisting of the following language: “ON OATH, and under the penalty of law for perjury or falsification, the undersigned,

(Name of person signing oath and title) hereby certifies that t he amounts claimed by the Contractor for additional compensation and time (as applicable) set forth in the Notice of Unresolved Dispute and this additional documentation are a true and complete Statement of the Actual Costs incurred and time sought, and are fully docume nted and supported in accordance with the Contract.”

J.Date of signature, sworn signature, and acknowledgment by n otary.

The Director or the Director’s designee may also retrieve and review the Bid Escrow Documentation, if any, if the C ontract required submission of B id Escrow. 111.3.3 Decision by Director Within 21 Days of receiving a No tice of Unresolved Dispute Conforming to Secti on 111.3.1 - Notice of Unresolved D ispute or, if requested, all Additional Documentation, whichever is later, the Director or t he Director’s designee(s) will Deliver a written decision. The decision will affirm, reverse, revise, or amend the decision of the Program Manager.

111.5Appeal to Commissioner

111.5.1 Filing of Appeal If the Contractor elects, the Contra ctor may file an “Appeal of the Director’s Decision.” Suc h Appeal must be filed within 14 Days of the Contractor’s Receipt of the Director’s Decision. At a minimum, the Appeal m ust contain:

A.All Materials submitted to the Director and all decisions b y the Director;

B.The specific findings of the Director that the appealing pa rty claims are contrary to

law and/or fact;

C.Any other pertinent new documentary evidence; D. Any written arguments the appealing party wishes the Commis sioner to consider;

and

E.The specific relief sought. Unless directed otherwise by the Commissioner, review of the A ppeal will be limited

to the documentation submitted. 111.5.2 Director’s Response The Director may submit a written response within 14 Days of receiving notice that an Appeal was filed with the Comm issioner. 111.5.3 Time and Alternatives for Commissioner Action Within 30 Days of receiving an Appeal Conforming to Section 111.5.1 or, if applicable, the Director’s response, allowed by Section 111.5.2, the Commissioner will:

A.Affirm the decision of the Director, or B. Revise, amend, or reverse the decision of the Director. 111.5.4 Final Agency Action Any affirmation, revision, amendm ent, or reversal by

the Commissioner is final agency action as of the date of Recei pt of such action by the Contractor. If the Commissioner takes no action within such 30 -Day period, the decision of the Director shall be final agency action upon the expiration o f said 30-Day period.

111.6Judicial Review All Bidders and Contractors hereby agree and acknowledge that

with respect to any and all Disputes and/or Issues arising from the Bid and/or the Contract, they must and will comply with all of the Notice and Dispute Re solution provisions of this Contract. For related provisions see Sections 111.1.2 – Escalation Process and 111.1.4 – Mandatory Notice. All Bidders and Contractors hereby agree and acknowledge that they must comply with, and exhaust, the Notice and Dispute Resolutio ns provisions of this Contract to the point of Final A gency Action prior to seeking j udicial review. See Section 111.5.4 - Final Agency Action. All Bidders and Contractors hereby agree and acknowledge that the sole and exclusive means of judicial review of final agency actions unde r the Contract is through a

petition for review pursuant to Maine Rule of Civil Procedure 8 0C and 5 MRSA § 11001, et seq., of the Maine Administrative Procedure Act, to be filed in Maine Superior Court, Kennebec County.

SECTION 112 — DEFAULT AND TERMINATION

Scope of Section This Section contains general provisions related to Default and termination of the Contract.

112.1Default

112.1.1 Grounds for Default The C ontractor and the Surety are in Default of the Contract if the Contractor or the Surety violate any provision of Section 103.3.2 or the following:

A.Fails to Promptly begin the Work under the Contract after being authorized to

proceed,

B.Fails to perform the Work with sufficient labor, Equipment, or Materials to assure

the timely Completion of the Work,

C.Performs Defective Work, neglects or refuses to uncover, remove or rebuild

Unacceptable Work, or neglects or refuses to uncover Unauthorized or Uninspected Work when directed by the Department,

D.Discontinues the prosecution of the Work without Departmental a pproval,

E.Continues to perform Work after t he Department directs that Wor k be stopped,

F.Fails to resume Work that has been suspended as required by the Contract,

G.Becomes insolvent or is declared bankrupt or commits any act of bankruptcy or

insolvency that could affect the Work in any way,

H.Allows any final judgment to stand against the Contractor unsat isfied for a period of

ten Days,

I.Makes an assignment for the benefit of creditors without author ization by the

Department, or

J.In any other manner, fails to perform the Work in Substant ial Conformity with any

material provision of the Contract. 112.1.2 Notice of Default / Cure Except as otherwise provided in this Contract, if Default occurs, the Department may give written Notice of Defau lt to the Contractor and its Surety. Failure to give Notice of Default is in no way a waive r by the Department of any provision of the Contract. If the Contractor or Surety fa ils to completely cure such Defa ult within a period of 14 Days after Notice of Default, t hen the Department may (A) te rminate the Contract for cause in accordance with Section 112.2.1 - For Cause, or (B) ta ke prosecution of the Work away from the Contractor w ithout violating the Contract.

112.2Termination The Department may, by written order to the Contractor,

terminate the Contract as provided in this Section 112. Termin ation of the Contract or

Source: Maine Standard Specifications for Road and Bridge Construction, 2020 Edition. Pages 131–135 of 817.

← Previous

111 RESOLUTION OF DISPUTES

112 DEFAULT AND TERMINATION