(1) The executive director may promulgate rules permitting or requiring the inclusion of clauses providing for adjustments in prices, time of performance, or other appropriate clauses covering the following: (a) The unilateral right of the state to order, in writing, changes in the work within the scope of the contract and temporary stopping of work or delaying of performance; and (b) Variations occurring between estimated quantities of work in a contract and actual quantities. (2) (a) Adjustments in price pursuant to clauses promulgated under subsection (1) of this section shall be computed in one or more of the following ways: (I) By agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable; (II) By unit prices specified in the contract or subsequently agreed upon; (III) By the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon; (IV) In such other manner as the contracting parties may mutually agree; or (V) In the absence of agreement by the parties, by a unilateral determination by the state of the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as computed by the state in accordance with applicable sections of the rules promulgated under article 107 of this title and subject to the provisions of article 109 of this title. (b) A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of section 24-103-403. (3) The executive director may promulgate rules including, but not limited to, rules permitting or requiring the inclusion in state contracts of clauses providing for appropriate remedies and covering the following subjects: (a) Liquidated damages as appropriate; (b) Specified excuses for delay or nonperformance; (c) Termination of the contract for default; and (d) Termination of the contract in whole or in part for the public interest of the state. (4) Any contract clauses promulgated under this section may be set forth in rules; except that such rules shall be consistent with section 24-91-103.5 (1) and (2). However, the executive director or the procurement official may vary the clauses for inclusion in any particular state contract so long as any variations are supported by a written determination that describes the circumstances justifying such variations and notice of any material variation is stated in the invitation for bids or request for proposals. No variation that is inconsistent with section 24-91- 103.5 (1) and (2) shall be made pursuant to this subsection (4).
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