New Jersey § 40a:11-16

§ 40a:11-16.

All construction contracts issued by a contracting unit for bids which were advertised

on or after the effective date of P.L.2017, c. 317 ( C.40A:11-16.7 et seq. ) shall include the changed conditions contract provisions set forth in this section,

which provisions shall be deemed to be a part of any such contract even if not expressly

incorporated therein, and which provisions may not be modified in any manner by the

contracting unit. a. A contract subject to this section shall include the following differing site conditions

provisions: (1) If the contractor encounters differing site conditions during the progress of

the work of the contract, the contractor shall promptly notify the contracting unit

in writing of the specific differing site conditions encountered before the site is

further disturbed and before any additional work is performed in the impacted area. (2) Upon receipt of a differing site conditions notice in accordance with paragraph

(1) of this subsection, or upon the contracting unit otherwise learning of differing

site conditions, the contracting unit shall promptly undertake an investigation to

determine whether differing site conditions are present. (3) If the contracting unit determines different site conditions that may result in

additional costs or delays exist, the contracting unit shall provide prompt written

notice to the contractor containing directions on how to proceed. (4)(a) The contracting unit shall make a fair and equitable adjustment to the contract

price and contract completion date for increased costs and delays resulting from the

agreed upon differing site conditions encountered by the contractor. (b) If both parties agree that the contracting unit's investigation and directions

decrease the contractor's costs or time of performance, the contracting unit shall

be entitled to a fair and equitable downward adjustment of the contract price or time

of performance. (c) If the contracting unit determines that there are no differing site conditions

present that would result in additional costs or delays, the contracting unit shall

so advise the contractor, in writing, and the contractor shall resume performance

of the contract, and shall be entitled to pursue a differing site conditions claim

against the contracting unit for additional compensation or time attributable to the

alleged differing site conditions. (5) Execution of the contract by the contractor shall constitute a representation

that the contractor has visited the site and has become generally familiar with the

local conditions under which the work is to be performed. (6) As used in this subsection, “ differing site conditions ” mean physical conditions at the contract work site that are subsurface or otherwise

concealed and which differ materially from those indicated in the contract documents

or are of such an unusual nature that the conditions differ materially from those

ordinarily encountered and generally recognized as inherent in the work of the character

provided for in the contract. b. A contract subject to this section shall include the following suspension of work

provisions: (1) The contracting unit shall provide written notice to the contractor in advance

of any suspension of work lasting more than 10 calendar days of the performance of

all or any portion of the work of the contract. (2) If the performance of all or any portion of the work of the contract is suspended

by the contracting unit for more than 10 calendar days due to no fault of the contractor

or as a consequence of an occurrence beyond the contracting unit's control, the contractor

shall be entitled to compensation for any resultant delay to the project completion

or additional contractor expenses, and to an extension of time, provided that, to

the extent feasible, the contractor, within 10 calendar days following the conclusion

of the suspension, notifies the contracting unit, in writing, of the nature and extent

of the suspension of work. The notice shall include available supporting information, which information may

thereafter be supplemented by the contractor as needed and as may be reasonably requested

by the contracting unit. Whenever a work suspension exceeds 60 days, upon seven days' written notice, either

party shall have the option to terminate the contract for cause and to be fairly and

equitably compensated therefor. (3) Upon receipt of the contractor's suspension of work notice in accordance with

paragraph (2) of this subsection, the contracting unit shall promptly evaluate the

contractor's notice and promptly advise the contractor of its determination on how

to proceed in writing. (4)(a) If the contracting unit determines that the contractor is entitled to additional

compensation or time, the contracting unit shall make a fair and equitable upward

adjustment to the contract price and contract completion date. (b) If the contracting unit determines that the contractor is not entitled to additional

compensation or time, the contractor shall proceed with the performance of the contract

work, and shall be entitled to pursue a suspension of work claim against the contracting

unit for additional compensation or time attributable to the suspension. (5) Failure of the contractor to provide timely notice of a suspension of work shall

result in a waiver of a claim if the contracting unit can prove by clear and convincing

evidence that the lack of notice or delayed notice by the contractor actually prejudiced

the contracting unit's ability to adequately investigate and defend against the claim. c. A contract subject to this section shall include the following change in character

of work provisions: (1) If the contractor believes that a change directive by the contracting unit results

in a material change to the contract work, the contractor shall so notify the contracting

unit in writing. The contractor shall continue to perform all work on the project that is not the

subject of the notice. (2) Upon receipt of the contractor's change in character notice in accordance with

paragraph (1) of this subsection, the contracting unit shall promptly evaluate the

contractor's notice and promptly advise the contractor of its determination on how

to proceed in writing. (3)(a) If the contracting unit determines that a change to the contractor's work caused

or directed by the contracting unit materially changes the character of any aspect

of the contract work, the contracting unit shall make a fair and equitable upward

adjustment to the contract price and contract completion date. The basis for any such price adjustment shall be the difference between the cost

of performance of the work as planned at the time of contracting and the actual cost

of such work as a result of its change in character, or as otherwise mutually agreed

upon by the contractor and the contracting unit prior to the contractor performing

the subject work. (b) If the contracting unit determines that the contractor is not entitled to additional

compensation or time, the contractor shall continue the performance of all contract

work, and shall be entitled to pursue a claim against the contracting unit for additional

compensation or time attributable to the alleged material change. (4) As used in this subsection, “ material change ” means a character change which increases or decreases the contractor's cost of performing

the work, increases or decreases the amount of time by which the contractor completes

the work in relation to the contractually required completion date, or both. d. A contract subject to this section shall include the following change in quantity

provisions: (1) The contracting unit may increase or decrease the quantity of work to be performed

by the contractor. (2)(a) If the quantity of a pay item is cumulatively increased or decreased by 20

percent or less from the bid proposal quantity, the quantity change shall be considered

a minor change in quantity. (b) If the quantity of a pay item is increased or decreased by more than 20 percent

from the bid proposal quantity, the quantity change shall be considered a major change

in quantity. (3) For any minor change in quantity, the contracting unit shall make payment for

the quantity of the pay item performed at the bid price for the pay item. (4)(a) For a major increase in quantity, the contracting unit or contractor may request

to renegotiate the price for the quantity in excess of 120 percent of the bid proposal

quantity. If a mutual agreement cannot be reached on a negotiated price for a major quantity

increase, the contracting unit shall pay the actual costs plus an additional 10 percent

for overhead and an additional 10 percent for profit, unless otherwise specified in

the original bid. (b) For a major decrease in quantity, the contracting unit or contractor may request

to renegotiate the price for the quantity of work performed. If a mutual agreement cannot be reached on a negotiated price for a major quantity

decrease, the contracting unit shall pay the actual costs plus an additional 10 percent

for overhead and an additional 10 percent for profit, unless otherwise specified in

the original bid; provided, however, that the contracting unit shall not make a payment

in an amount that exceeds 80 percent of the value of the bid price multiplied by the

bid proposal quantity. (5) As used in this subsection, the term “ bid proposal quantity ” means the quantity indicated in the bid proposal less the quantities designated

in the project plans as “if and where directed.”