111Resolution of Disputes

111.1 General

111.1.1 Definitions “Dispute” is defined in Section 101.2 - D efinitions. “Issue” is

defined in Section 104.4.5 – Early Negotiation. Additionally, an “Issue” as used in Sections

111.1 through 111.3 below, is a matter that may give rise to a Dispute.

111.1.2 Escalation Process To resolve Issues or Disputes, the Contractor and the

Department may mutually agree in writing at any time to any form of Dispute resolution, including mediation, facilitated negotiation, neutral case evaluation, arbitration, or litigation. In the absence of such written Agreement, the parties must pursue resolution of Issues or Disputes that arise after Contract Execution as follows: (A) first through negotiation at the Project level as provided in Sections 104.4.5 - Early Negotiation and 111.2 - Project Level 1-123 Negotiation, (B) next through negotiation by management as provided in Section 111.3 - Negotiation by Management, and (C) next through the Commissioner as set forth in Section

111.5 Appeal to Commissioner. If the Dispute remains unresolved after final agency

action by the Commissioner, then, and only then, may a party seek judicial review of a Dispute as provided in Section 111.6 - Judicial Review.

111.1.3 Relationship to Partneri ng Partnering, including the establishment of a

partnership charter, does not in any way waive, alter, or otherwise affect any provision of the Contract, including those requiring notice and all other provisions governing the resolution of Issues or Disputes. For a related provision, see Section 104.4.1 - Partnering.

111.1.4 Mandatory Notice The Contractor shall comply with all notice provisions of

this Contract relating to Issues or Disputes, including those contained in Sections 104.3.3 - Duty to Notify If Ambiguities Discovered; 104.4.5(A) - Early Negotiation, Notice Required;

109.4.3 Differing Site Conditions, Notice and Procedural Requirements; 109.5.4 -

Adjustments for Delay, Notice and Procedural Requirements; and 111 - Resolution of Disputes. In order to promote the purposes of this Section 111, all notice provisions are mandatory and are to be strictly construed. Failure to provide conforming notice constitutes waiver by the Contractor of any and all claims to additional compensation, time, or modification of Contract requirements related to the Issue or Dispute.

111.1.5 Work to Proceed Despite Issue or Dispute Regardless o f the status or

disposition of any Issue or Dispute, the Contractor and the Department must perform their Contractual responsibilities Promptly and diligently. Unless expressly directed otherwise by the Department, the Contractor shall proceed without Delay to perform the Work or to conform to the decision or order of the Department.

111.1.6 Contractor’s Obligation to Keep Records Throughout th e course of any

Issue or Dispute, the Contractor shall keep daily records, including supporting documentation, of extra costs and time related to the Issue or Dispute. Such records shall include all non-salaried labor, Material costs, Equipment expenses, and location for all operations that are affected by the Issue or Dispute. The Contractor will not be entitled to any change to compensation, time, or Work requirements without such records. The Contractor shall permit the Department daily access to and shall provide copies of these and any other records needed for evaluating the Dispute. The Contractor shall retain those records for the duration of the Dispute and as provided in Section 104.3.6 - Project Records.

111.1.7 Dispute Resolution Time Extensions All deadlines prov ided in this Section

111 may be extended only by mutual written consent signed by both parties.

111.1.8 Commissioner Communications Before Appeal Because the Commissioner

may hear an Appeal and render final agency action under Section 111.5 - Appeal to Commissioner, the following persons shall not communicate with the Commissioner regarding the substance of a Dispute, except upon notice and opportunity for all parties to participate: (A) the Contractor or any agent for the Contractor and (B) Department staff, counsel, or consultants who are directly participating in Dispute resolution processes in an 1-124 advocate capacity. The preceding sentence does not prohibit the Commissioner from communicating with, or having the aid or advice of all other Department staff, counsel, or consultants. This Section does not apply where the Commissioner has delegated hearing the Appeal to other Department personnel, in which case, this Section shall apply instead to the Commissioner’s delegate.

111.1.9 Contract Modification Required All changes to the Contract that regard

Issues or Disputes and that affect compensation, time, quality, or other Contract requirements must be made by written Contract Modification as provided by Section 109.8 - Contract Modification.

111.2 Project Level Negotiation

111.2.1 Early Negotiation The parties must first comply with all requirements of

Section 104.4.5 - Early Negotiation.

111.2.2 Detailed Notice of Dispute If Early Negotiation fails to resolve the Issue

within 45 Days of the date of Receipt of the written Notice of Issue for Consideration Conforming to Section 104.4.5(A) - Early Negotiation, and if the 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 shall include all of the following information in sufficient detail to allow reasoned analysis 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 Project Manager or Resident with the “Notice of Issue for Consideration” Conforming 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 Critical Path; and 1-125 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 the specific request made.

111.3 Negotiation by Management

111.3.1 Notice of Unresolved Dispute If the Contractor desire s additional

consideration, the Contractor shall Deliver a written “Notice of Unresolved Dispute” to the Department's appropriate Bureau Director (hereafter "Director" in this Section 111 - Resolution of Disputes within 14 Days of receiving the Program 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 desires the Department to consider.

111.3.2 Additional Documentation Within 14 Days of the receiv ing a Notice of

Unresolved Dispute Conforming to Section 111.3.1, the Director or the Director’s designee(s) may require the Contractor to provide Additional Documentation. If required, the Contractor shall completely and accurately supply all requested information in writing within 21 Days of receiving said request. Failure to provide all 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 Issue 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 Dispute and a Statement of which specific Contract provisions the Contractor believes controls or is relevant to the outcome of the Dispute. D. A narrative setting forth the Contractor’s position regarding 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. 1-126 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 recipient(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 person 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, and 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, including an explanation of impact on the Critical Path; 2. The specific reasons the Contractor believes a time extension should be granted; and 3. The specific provisions of the Contract under which it is sought. H. If additional compensation is sought, the exact amount sought and a breakdown of that amount into the categories provided by Section 109.7- Equitable 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 the 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 documented and supported in accordance with the Contract.” J. Date of signature, sworn signature, and acknowledgment by notary. The Director or the Director’s designee may also retrieve and review the Bid Escrow Documentation, if any, if the Contract required submission of Bid Escrow.

111.3.3 Decision by Director Within 21 Days of receiving a No tice of Unresolved

Dispute Conforming to Section 111.3.1 - Notice of Unresolved Dispute or, if requested, all Additional Documentation, whichever is later, the Director or the Director’s designee(s) will Deliver a written decision. The decision will affirm, reverse, revise, or amend the decision of the Program Manager.

111.5 Appeal to Commissioner

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111.5.1 Filing of Appeal If the Contractor elects, the Contra ctor may file an “Appeal

of the Director’s Decision.” Such Appeal must be filed within 14 Days of the Contractor’s Receipt of the Director’s Decision. At a minimum, the Appeal must contain: A. All Materials submitted to the Director and all decisions by the Director; B. The specific findings of the Director that the appealing party claims are contrary to law and/or fact; C. Any other pertinent new documentary evidence; D. Any written arguments the appealing party wishes the Commissioner to consider; and E. The specific relief sought. Unless directed otherwise by the Commissioner, review of the Appeal 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 Commissioner.

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 Receipt 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 of said 30-Day period.

111.6 Judicial 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 Resolution 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 Resolutions provisions of this Contract to the point of Final Agency Action prior to seeking judicial 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 under the Contract is through a 1-128 petition for review pursuant to Maine Rule of Civil Procedure 80C and 5 MRSA § 11001, et seq., of the Maine Administrative Procedure Act, to be filed in Maine Superior Court, Kennebec County.