1. (1) Solicitation documents for a public improvement contract shall make specific reference to federal, state and local agencies that have enacted ordinances, rules or regulations dealing with the prevention of environmental pollution and the preservation of natural resources that affect the performance of the contract. If the successful bidder awarded the project is delayed or must undertake additional work by reason of existing ordinances, rules or regulations of agencies not cited in the public improvement contract or due to the enactment of new or the amendment of existing statutes, ordinances, rules or regulations relating to the prevention of environmental pollution and the preservation of natural resources occurring after the submission of the successful bid, the contracting agency may:

   1. (a) Terminate the contract;
   2. (b) Complete the work itself;
   3. (c) Use nonagency forces already under contract with the contracting agency;
   4. (d) Require that the underlying property owner be responsible for cleanup;
   5. (e) Solicit bids for a new contractor to provide the necessary services under the competitive bid requirements of this chapter; or
   6. (f) Issue the contractor a change order setting forth the additional work that must be undertaken.
2. (2) In addition to the obligation imposed under subsection (1) of this section to refer to federal, state and local agencies with ordinances, rules or regulations dealing with the prevention of environmental pollution and the preservation of natural resources, a solicitation document must also make specific reference to known conditions at the construction site that may require the successful bidder to comply with the ordinances, rules or regulations identified under subsection (1) of this section.
3. (3) If the successful bidder encounters a condition not referred to in the solicitation documents, not caused by the successful bidder and not discoverable by a reasonable prebid visual site inspection, and the condition requires compliance with the ordinances, rules or regulations referred to under subsection (1) of this section, the successful bidder shall immediately give notice of the condition to the contracting agency.
4. (4) Except in the case of an emergency and except as may otherwise be required by any environmental or natural resource ordinance, rule or regulation, the successful bidder may not commence work nor incur any additional job site costs in regard to the condition encountered and described in subsection (3) of this section without written direction from the contracting agency.
5. (5) Upon request by the contracting agency, the successful bidder shall estimate the emergency or regulatory compliance costs as well as the anticipated delay and costs resulting from the encountered condition. This cost estimate shall be promptly delivered to the contracting agency for resolution.

6. (6) Within a reasonable period of time following delivery of an estimate under subsection (5) of this section, the contracting agency may:

   1. (a) Terminate the contract;
   2. (b) Complete the work itself;
   3. (c) Use nonagency forces already under contract with the contracting agency;
   4. (d) Require that the underlying property owner be responsible for cleanup;
   5. (e) Solicit bids for a new contractor to provide the necessary services under the competitive bid requirements of this chapter; or
   6. (f) Issue the contractor a change order setting forth the additional work that must be undertaken.

7. (7)

   1. (a) If the contracting agency chooses to terminate the contract under subsection (1)(a) or (6)(a) of this section, the successful bidder shall be entitled to all costs and expenses incurred to the date of termination, including overhead and reasonable profits, on the percentage of the work completed. The contracting agency shall have access to the contractor’s bid documents when making the contracting agency’s determination of the additional compensation due to the contractor.
   2. (b) If the contracting agency causes work to be done by another contractor under subsection (1)(c) or (e) or (6)(c) or (e) of this section, the initial contractor may not be held liable for actions or omissions of the other contractor.
   3. (c) The change order under subsection (1)(f) or (6)(f) of this section shall include the appropriate extension of contract time and compensate the contractor for all additional costs, including overhead and reasonable profits, reasonably incurred as a result of complying with the applicable statutes, ordinances, rules or regulations. The contracting agency shall have access to the contractor’s bid documents when making the contracting agency’s determination of the additional compensation due to the contractor.

8. (8) Notwithstanding subsections (1) to (7) of this section, a contracting agency:

   1. (a) May allocate all or a portion of the known environmental and natural resource risks to a contractor by listing such environmental and natural resource risks with specificity in the solicitation documents; and
   2. (b) In a local improvement district, may allocate all or a portion of the known and unknown environmental and natural resource risks to a contractor by so stating in the solicitation documents.

[2003 c.794 §142]