Current through Bulletin 2024-06, March 15, 2024
(1) Request for Preliminary Resolution Effort
(PRE). If a contractor wishes to raise an issue related to an alleged breach of
contract by the division or an issue concerning time or money, the contractor
shall file a PRE as a prerequisite for any consideration of the issue by the
division. The labeling of the notice or request shall not preclude the
consideration of the issue by the division.
(2) Time for Filing. The PRE must be filed in
writing with the DFCM representative within 21 days after any of the following:
(a) The issuance of a construction change
directive that states the adjustment in contract price or contract time, if
any, if contractor disagrees with such adjustment;
(b) Issuance of a statement of DFCM's
position with respect to the adjustment in the contract price or contract time,
if the contractor disagrees with such statement;
(c) Issuance of a denial of a proposed change
order initiated by contractor;
(d)
In the case of a subcontractor, after the expiration of the time period for the
contractor or subcontractor PRE process under Section
R23-26-4; or
(e) Except as provided in Subsections
R23-26-4(2)(a) through
(e), when contractor knows or should have
known about any other issue where contractor seeks an adjustment in the
contract price, contract time, or other relief from DFCM.
(3) Content Requirement. The PRE shall be
required to include in writing to the extent information is reasonably
available at the time of filing of the PRE:
(a) a description of the issue;
(b) the potential impact on the work,
contract, price or contract time; and
(c) an indication of the relief
sought.
(4)
Supplementation. Additional detail of the content requirement shall be provided
later if the detail is not yet available at the initial filing as follows:
(a) While the issue is continuing or the
impact is being determined, the contractor shall provide a written updated
status report every 30 days or as otherwise reasonably requested by the DFCM
representative; and
(b) After the
issue is concluded or the impact is determinable, complete information,
including any impacts on contract price, contract time or other relief
requested, i f a n y, must be provided to the DFCM representative within 21
days of the earlier of the date the issue is concluded or the impact is
determinable.
(5)
Subcontractors.
(a) Under no circumstances
shall any provision of this rule be interpreted or construed to create any
contractual relationship between the division and any subcontractor.
(b) The contractor must include Subsection
(5) in its subcontracts with each first tier subcontractor, and require each
first-tiersubcontractor to do likewise in each first tier subcontractor's
sub-subcontracts with sub-subcontractors. At the contractor's discretion, the
contractor may allow a subcontractor at the 2nd tier and beyond to submit the
PRE directly with the contractor.
(c) In order for a subcontractor at any tier
to be involved with the preliminary resolution process of the division, the
following conditions and process shall apply:
(i) The subcontractor must have attempted to
resolve the issue with the contractor including the submission of a PRE with
the contractor.
(ii) The
subcontractor must file a copy of the PRE with the DFCM
representative.
(iii) The PRE to
the contractor must meet the time, content, and supplementation requirements of
Section R23-26-4. The triggering event
for a subcontractor to file a PRE shall be the time at which the issue cannot
be resolved through negotiation.
(iv) The PRE submitted to the contractor
shall only be eligible for consideration in the division's PRE process to the
extent the issue is reasonably related to the performance of the division or an
entity for which the division is liable.
(v) The contractor shall resolve the PRE with
the subcontractor within 60 days of its submittal to the contractor or such
other time period as subsequently agreed to by the subcontractor in writing. If
the contractor fails to resolve the PRE with the subcontractor within such
required time period, the subcontractor may submit in writing the PRE with the
contractor and the division. To be eligible for division consideration of the
PRE, the subcontractor must submit the PRE within 21 days of the expiration of
the time period for the contractor/subcontractor PRE process. The division
shall consider the PRE as being submitted by the contractor on behalf of the
subcontractor.
(vi) Upon such PRE
being submitted, the contractor shall cooperate with the DFCM representative in
reviewing the issue.
(vii) The
division shall not be obligated to consider any submission which is not in
accordance with this rule.
(viii)
The subcontractor may accompany the contractor in participating with the
division regarding the PRE raised by the subcontractor. The division is not
precluded from meeting with the contractor separately and it shall be the
responsibility of the contractor to keep the subcontractor informed of any such
meetings.
(ix) Notwithstanding any
provision of this rule, a subcontractor shall be entitled to pursue a payment
bond claim.
(6)
PRE Resolution Procedure. The DFCM representative may request additional
information and may meet with the parties involved with the issue.
(7) Contractor Required to Continue
Performance. Pending the final resolution of the issue, unless otherwise agreed
upon in writing by the DFCM representative, the contractor shall proceed
diligently with performance of the contract and the division shall continue to
make payments of undisputed amounts in accordance with the contract.
(8) Decision. The division shall issue to the
contractor, and any other party brought into the process by the DFCM
representative as being liable to the division, a written decision providing
the basis for the decision on the issues presented by all parties within days
of receipt of all the information required under Subsections
R23-26-4(3) and
(4).
(9) Decision Final Unless Claim Submitted.
The decision by the division shall be final, and not subject to any further
administrative or judicial review, not including judicial enforcement, unless a
claim is submitted in accordance with this rule.
(10) Extension Requires Mutual Agreement. Any
time period specified in this rule may be extended by mutual agreement of the
contractor and the division.
(11)
If Decision Not Issued. If the decision is not issued within the 30 day period,
including any agreed to extensions, the issue may be pursued as a
claim.
(12) Payment for
Performance. Except as provided in this rule, any final decision where the
division is to pay additional monies to the contractor, shall not be delayed by
any PRE, claim or appeal by another party. Payment to the contractor in
accordance with any final decision shall be made by the division consistent
with the contract. Notwithstanding any other provision of this rule, payment to
the contractor shall be subject to any set-off, claims or counterclaims of the
division. Payment to the contractor for a subcontractor issue submitted by the
contractor shall be paid by the contractor to the subcontractor in accordance
with the subcontract between the contractor and the subcontractor. Any payment
or performance determined owing by the contractor to the division shall be made
in accordance with the contract.
