Hawaii Administrative Rules › Title 3 - DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES › State Procurement Office › Hawaii Public Procurement Code › Chapter 125 - MODIFICATIONS AND TERMINATIONS OF CONTRACTS › Section 3-125-17 - Termination for default in goods and services contracts

Current through June, 2024
The following paragraphs, or similar statements expressing
					 the intent of these paragraphs, shall be included in all goods and services
					 contracts:
(1)
				  "
Default.
If the contractor refuses or fails to
				  perform any of the provisions of this contract with such diligence as will
				  ensure its completion within the time specified in this contract, or any
				  extension thereof, otherwise fails to timely satisfy the contract provisions,
				  or commits any other substantial breach of this contract, the procurement
				  officer may notify the contractor in writing of the delay or non-performance,
				  and if not cured in ten days or any longer time specified in writing by the
				  procurement officer, the officer may terminate the contractor's right to
				  proceed with the contract or a part of the contract as to which there has been
				  delay or other breach of contract. In the event of termination in whole or in
				  part, the procurement officer may procure similar goods or services in a manner
				  and upon terms deemed appropriate by the procurement officer. The contractor
				  shall continue performance of the contract to the extent it is not terminated
				  and shall be liable for excess costs incurred in procuring similar goods or
				  services."
(2)
				  "
Contractor's duties.
Notwithstanding termination of
				  the contract and subject to any directions from the procurement officer, the
				  contractor shall take timely and necessary action to protect and preserve
				  property in the possession of the contractor in which the state or county has
				  an interest."
(3)
				  "
Compensation.
Payment for completed goods delivered
				  and accepted by the State shall be at the contract price. Payment for the
				  protection and preservation of property shall be in an amount agreed upon by
				  the contractor and procurement officer; if the parties fail to agree, the
				  procurement officer shall set an amount subject to the contractor's rights
				  under chapter 3-126. The State may withhold from amounts due the contractor as
				  the procurement officer deems to be necessary to protect the State against loss
				  because of outstanding liens or claims of former lien holders and to reimburse
				  the State for the excess costs incurred in procuring similar goods and
				  services."
(4) "
Excuse
				  for nonperformance or delayed performance.
Except with respect to
				  defaults of subcontractors, the contractor shall not be in default by reason of
				  any failure in performance of this contract in accordance with its terms, if
				  the contractor has notified the procurement officer within fifteen days after
				  the cause of the delay and the failure arises out of causes including but not
				  limited to the following: acts of God; acts of the public enemy; acts of the
				  State and any other governmental body in its sovereign or contractual capacity;
				  fires; floods; epidemics; quarantine restrictions; strikes or other labor
				  disputes; freight embargoes; or unusually severe weather. If the failure to
				  perform is caused by the failure of a subcontractor to perform or to make
				  progress, and if the failure arises out of causes similar to those set forth
				  above, the contractor shall not be deemed to be in default, unless the goods or
				  services to be furnished by the subcontractor were obtainable from other
				  sources in sufficient time to permit the contractor to meet the contract
				  requirements. Upon request of the contractor, the procurement officer shall
				  ascertain the facts and extent of the failure, and, if the officer determines
				  that any failure to perform was occasioned by any one or more of the excusable
				  causes, and that, but for the excusable cause, the contractor's progress and
				  performance would have met the terms of the contract, the delivery schedule
				  shall be revised accordingly, subject to the rights of the State under the
				  clause entitled in fixed-price contracts, 'Termination for Convenience' and in
				  cost-reimbursement contracts, 'Termination'. As used in this paragraph, the
				  term 'subcontractor' means subcontractor at any tier."
(5) "Additional rights and remedies. The
				  rights and remedies provided in this contract are in addition to any other
				  rights and remedies provided by law."