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 3-125-18 - Default, delay, and time extensions for construction contracts

Current through June, 2024
The following paragraphs, or similar statements expressing
					 the intent of these paragraphs, shall be included in all construction
					 contracts:
(1)
				  "
Default.
If the contractor refuses or fails to
				  perform the work, or any separable part thereof, with such diligence as will
				  assure its completion within the time specified in this contract, or any
				  extension thereof, fails to complete the worK within such time, or commits any
				  other substantial breach of this contract, and further fails within seven days
				  after receipt of written notice from the procurement officer to commence and
				  continue correction of the refusal or failure with diligence and promptness,
				  the procurement officer may, by written notice to the contractor, declare the
				  contractor in breach and terminate the contractor's right to proceed with the
				  work or the part of the work as to which there has been delay or other breach
				  of contract. In that event, the State may take over the work and perform the
				  same to completion, by contract or otherwise, and may take possession of, and
				  utilize in completing the work, the materials, appliances, and plant as may be
				  on the site of the work and necessary therefor. Whether or not the contractor's
				  right to proceed with the work is terminated, the contractor and the
				  contractor's sureties shall be liable for any damage to the State resulting
				  from the contractor's refusal or failure to complete the work within the
				  specified time."
(2)
				  "
Liquidated damages upon termination.
If fixed and
				  agreed liquidated damages are provided in the contract, and if the State so
				  terminates the contractor's right to proceed, the resulting damage will consist
				  of the liquidated damages for the time as may be required for final completion
				  of the work."
(3)
				  "
Liquidated damages in absence of termination.
If
				  fixed and agreed liquidated damages are provided in the contract, and if the
				  State does not terminate the contractor's right to proceed, the resulting
				  damage will consist of liquidated damages until the work is completed or
				  accepted."
(4) "
Time
				  extension.
The contractor's right to proceed shall not be so
				  terminated nor shall the contractor be charged with resulting damage if:
(A) The delay in the completion of the work
				  arises from causes such as: acts of God; acts of the public enemy; acts of the
				  State and any other governmental entity in either a sovereign or contractual
				  capacity; acts of another contractor in the performance of a contract with the
				  State; fires; floods; epidemics; quarantine restrictions; strikes or other
				  labor disputes; freight embargoes; unusually severe weather; delays of
				  subcontractors due to causes similar to those set forth above; or shortage of
				  materials; provided, however, that no extension of time will be granted for a
				  delay caused by a shortage of materials, unless the contractor furnishes to the
				  procurement officer proof that the contractor has diligently made every effort
				  to obtain the materials from all known sources, and further proof that the
				  inability to obtain the materials when originally planned did in fact cause a
				  delay in final completion of the entire work which could not be compensated for
				  by revising the sequence of the contractor's operations; and
(B) The contractor, within ten days from the
				  beginning of the delay (unless the procurement officer grants a further period
				  of time before the date of final payment under the contract), notifies the
				  procurement officer in writing of the causes of delay. The procurement officer
				  shall ascertain the facts and the extent of the delay and extend the time for
				  completing the work when, in the judgment of the procurement officer, the
				  findings of fact justify such an extension."