Code of Maryland Regulations › Title 21 - STATE PROCUREMENT REGULATIONS › Subtitle 07 - CONTRACT TERMS AND CONDITIONS › Chapter 21.07.02 - Mandatory Construction Contract Clauses › Section 21.07.02.07 - Default, Delay, and Time Extensions

Current through Register Vol. 51, No. 14, July 12, 2024
Mandatory provision for all construction contracts:
				  "Termination for Default - Damages for Delay - Time Extensions
"(1) If the Contractor refuses or fails to
				prosecute the work, or any separable part thereof, with such diligence as shall
				insure its completion within the time specified in this contract, or any
				extension thereof, fails to complete said work within this time, or fails to
				provide any required annual and renewable bond 30 days prior to expiration of
				the current bond then in effect, the State may, by written notice to the
				Contractor, terminate the Contractor's right to proceed with the work or the
				part of the work as to which there has been delay. In this event the State may
				take over the work and prosecute 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 its 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) 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 shall consist of such liquidated damages
				until a reasonable time as may be required for final completion of the work
				together with any increased costs occasioned the State in completing the
				work.
"(3) If fixed and agreed
				liquidated damages are provided in the contract and if the State does not so
				terminate the Contractor's right to proceed, the resulting damage shall consist
				of these liquidated damages until the work is completed or accepted.
"(4) The Contractor's right to proceed may
				not be so terminated nor the contractor charged with resulting damages if:
(a) The delay in the completion of the work
				arises from unforeseeable causes beyond the control and without the fault or
				negligence of the Contractor, including but not restricted to, acts of God,
				acts of the public enemy, acts of the State in either its sovereign or
				contractual capacity, acts of another Contractor in the performance of a
				contract with the State, fires, floods, epidemics, quarantine restrictions,
				strikes, freight embargoes, unusually severe weather, or delays of
				subcontractors or suppliers arising from unforeseeable causes beyond the
				control and without the fault or negligence of either the Contractor or the
				subcontractors or suppliers; and
(b) The Contractor, within 10 days from the
				beginning of any such 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 procurement officer's judgement, the
				findings of fact justify such an extension, and the procurement officer's
				findings of fact shall be final and conclusive on the parties, subject only to
				appeal as provided in the "Disputes" clause of this contract.
"(5) If, after notice of
				termination of the Contractor's right to proceed under the provisions of this
				clause, it is determined for any reason that the Contractor was not in default
				under the provisions of this clause, or that the delay was excusable under the
				provisions of this clause, the rights and obligations of the parties shall, if
				the contract contains a clause providing for termination for convenience of the
				State, be the same as if the notice of termination had been issued pursuant to
				the clause. If, in the foregoing circumstances, this contract does not contain
				a clause providing for termination for convenience of the State, the contract
				shall be equitably adjusted to compensate for the termination and the contract
				modified accordingly; failure to agree to any such adjustment shall be a
				dispute concerning a question of fact within the meaning of the clause of this
				contract entitled "Disputes".
"(6)
				The rights and remedies of the State provided in this clause are in addition to
				any other rights and remedies provided by law or under this contract.
"(7) As used in paragraph (4)(a) of this
				clause, the term "subcontractors or suppliers" means subcontractors or
				suppliers at any tier."