The purpose of this section is to discuss tools available to the Department for use in tracking the Contractor's progress and timely completion of the project.
Following the signing of a
contract for a construction project, the District will contact the Contractor
and schedule a Preconstruction Meeting. On or about th
time, an Engineer will be chosen by the Department
for that project.
Once the Engineer is chosen, it is the responsibility of that individual or team to review all of the project documents and terms of the contract prior to the Preconstruction Meeting. Special attention must be paid to the following items:
· Plan Notes.
· Completion date.
· Interim completion dates.
· Special uses of "As per Plan" reference items.
· Proposal notes and supplemental specifications.
· Phasing requirements.
· Special provisions.
A check of the status of utility relocation (must be performed immediately as to avoid delays to the start of the project).
The purpose of Partnering is to develop a proactive effort and spirit of trust, respect, and cooperation among all stakeholders in a project. Project personnel are to adopt the Partnering concepts on each project. Self-facilitated Partnering is the standard on all Projects and is to be performed by the Engineer and Contractor. Once the contract is awarded, the DCA, or designee will initiate Partnering activities by discussing with the Contractor how Partnering will be implemented on the Project. At this stage, the DCA, the Engineer, and Contractor will identify and define major issues and project concerns and share relevant information to help determine the scope of the partnering efforts and to establish the agenda for the Preconstruction Meeting. Partnering will be an important part of the Preconstruction Meeting and shall have its own agenda with specific time set aside to develop the necessary partnering protocols.
The purpose of the Preconstruction Meeting is to review the various items of work as set forth in the detailed construction plans, bid proposal, specifications, and the Contractor's work schedule and to establish the Partnering relationship among project personnel. Those items to be discussed are the necessary utility adjustments, availability of right-of-way, maintenance of traffic, and the Department's responsibility for the interrelated activities so that all concerned might have a better understanding of the problems involved and thus be able to coordinate the project.
The rationale of employing a thorough Preconstruction Meeting is pervasive as regards claim avoidance in that it seeks to uncover problems at a time when there is the greatest flexibility available for their solution and with the least disruption to the project. It is designed to create, for all parties, an overview of the conduct of the work and flush out any misconceptions or erroneous assumptions. By including Partnering as an important piece of the Preconstruction Meeting, the environment of open communication, trust, and cooperation necessary for effective and efficient contract performance is established.
Understandings reached at meetings of this nature have resulted in improved relations and coordination of interrelated activities by all concerned.
The Preconstruction Meeting really is the place to establish communication, voice and discuss intentions, discuss concerns, and lay out the road map and rules for the conduct of the project.
A preliminary study of the project shall be made in advance of the meeting in order that the pertinent problems involved are known. Also, prior to the meeting, the DCA shall coordinate with the Contractor to determine whether the Initial Partnering Session will be a component of the Preconstruction Meeting or held as a separate session.
After the Contractor has contacted the District Construction Administrator about setting up the Preconstruction Meeting, both parties shall invite all important stakeholders to the Preconstruction Meeting, including but not limited to:
· Key suppliers.
· State personnel, including the Engineer and staff, Utilities Coordinator, EEO Coordinator, Design Engineer, Traffic Engineer, Test Engineer, Public Information Office, County Manager, District Environmental Coordinator, and all parties involved with the preparation of the plans.
· Utility companies with facilities located within the right-of-way, including all railroads and local park boards.
· Maintaining agency.
· Regional Transit Authority.
· Parties funding project including FHWA/County/Local.
At the Preconstruction Meeting, the Project Engineer must obtain a list of contacts for all parties involved with the project. This list will be useful in the future for timely resolution of problems which surface during the project construction. These contacts should also be invited to attend the progress meetings held on-site once the project begins.
Ensure that required items listed in C&MS 108.02, which the contractor needs for the Preconstruction Meetings, are obtained and reviewed in addition to the items below:
· List of haul roads.
· Executed contractor signature authorization form (CA-D-10).
An agenda should be used at every Preconstruction Meeting. It is recommended that the standard Preconstruction Meeting Agenda/Minutes form be utilized and formatted as needed for each project. The checklist below represents the more common items that should be included in the agenda.
Review of planned project work:
· Right-of-way issues.
· Utility relocations.
· Railroad coordination, including any agreements between the Contractor and a railroad.
· Any pending change orders or contemplated extra work.
Information from the Contractor:
· State, in general, work procedures, type of equipment to be used, and the number of working shifts to be used.
· Submit documentation stating the method of paying fringe benefits to workers required by prevailing wage law.
· Requests for clarification of any questionable aspects of the contract or project site conditions.
Documentation of the Preconstruction Meeting:
· A list of meeting attendees and their affiliation.
· Written minutes using Preconstruction Meeting Agenda/Minutes.
· A tape recording of the conference can be used as a back-up.
· Record the date of the Preconstruction Meeting in SiteManager Key Dates/Critical Dates screen.
The DCA or designee, the Engineer, and the Contractor will jointly conduct the Partnering meeting. The meeting will cover administrative requirements. Document the meeting minutes on the Initial Partnering Session Agenda/Minutes form. The Engineer and the Contractor should review the list of stakeholders and send an invitation to all stakeholders involved in the project. At this session, all parties should:
· Discuss and obtain agreement on the meaning of any ambiguities identified in the contract documents include the proposal, any special provisions, and any general plan notes.
· Establishment of an RFI process, specifically to whom an RFI must be addressed, acceptable format (letter, e-mail), and standard response time.
· Empower the district staff to quickly resolve issues in steps l or 2 of the Dispute Resolution and Administrative Claims Process.
· Review the chains of commands of the Department and Contractor.
· Obtain understanding and agreement that ignoring an issue or making no decision is not acceptable.
· Individuals are not expected to make a decision with which they are uncomfortable, but should escalate upward in the dispute resolution process.
· Both parties should agree to finalize-as-you-go.
· Obtain contact information for all stakeholders.
Distribute the meeting minutes to all stakeholders for review and commitment to the plans developed.
Proposal Note 111 sets forth the requirements and compensation for Facilitated Partnering. Facilitated Partnering is used on select projects that are typically over $5 million, complex in nature, project duration over a year, a high diversity of stakeholders, pubic involvement, coordination issues, and a high extent of utility and railroad involvement.
With input from the Engineer, select a partnering facilitator from the ODOT prequalified list located on the Division of Construction Management’s Partnering website. Ensure the Facilitator teaches all partnering sessions according to the Department’s Partnering Facilitator Standards and Expectations manual.
Specific attention should be paid to coordinating the Partnering Specifications in C&MS 108.02, Dispute Review Board (PN 108), and/or the Dispute Review Advisor (PN 109) processes in order to maximize the effectiveness of the Partnering efforts.
Progress meetings are very productive tools for enhancing communication, discussing issues, and solving problems, thus, furthering progress on the project. The Engineer must invite the appropriate personnel to attend the progress meetings. The status of the project must be discussed with the Contractor. Before the progress meetings, the Engineer should prepare an agenda. An agenda should cover all items pertinent to the success of the project and be similar in format to the standard Progress Meeting Agenda/Minutes form. Agenda items to be considered include:
Contemplate holding a Post-milestone Meeting as a separate meeting on any multi-year, multi-phase project or projects with critical items of work or milestone dates. Review the schedule with the Contractor and determine whether or not a Post-Milestone Meeting should be held separately from a regularly scheduled Progress Meeting. In cases where Post-Milestone Meetings are held, coordinate with the Contractor to develop an agenda and consider reviewing the goals set forth at the Initial Partnering Session. Review the stakeholders list for the project to and consider inviting all parties.
Consistently monitor the progress of the Partnering Relationship based on the goals decided during the Initial Partnering Session. Determine whether to use the standard survey available online through the Division of Construction Management’s Partnering website or to develop a different measure. The standard survey title, “Partnering Monitoring Survey,” can be found at the following link:
When project personnel choose to utilize the standard survey, the Engineer should coordinate with the Central Office Partnering Coordinator to ensure the results are distributed for review at the Progress Meetings.
As issues arise throughout the course of the work, all parties have the shared contractual and legal requirement to mitigate the issue, whether caused by the Department, Contractor, third-party, or intervening event.
Most construction contracts, including ODOT’s, include a requirement for the Contractor to provide prompt notice of circumstances that may require a revision to the contract documents. This notice of the existence of a potential change to the contract is required before the Contractor begins any changed or extra work. Failure to give prompt notice could defeat an otherwise properly documented claim.
The purpose of requiring early notice is so the owner has the option of proceeding with the work, redesigning the work, and/or otherwise reducing the effect of a claimed event. Early notice allows the owner the opportunity to begin keeping careful and specific records of the Contractor’s activities, manpower, equipment, and materials which are related to the claim.
ODOT, by the nature, volume, and complexity of the work which it does, is subject to claims by Contractors who perform the work. Documents that make up the contract consist of the proposal, specifications, and the plans, which together are referred to as the stated terms. There are certain terms which are not stated in the contract documents. These are known as implied terms. For instance, there is an implied warranty that the plans and specifications are free from defects, and unless otherwise stated, there will be safe and continuous access to all areas within the project's boundaries. Claims arise from both stated and implied terms.
The words issue, dispute, and claim are often used interchangeably, but the words, as used in ODOT contract language, do have different meanings. An issue is defined as a vital or unsettled matter, which arises during the course of the work and can be caused by the Department, Contractor, third-party entity, or some other intervening circumstance. A reasonable attempt must be made to resolve all issues according to all legal and contractual requirements. An issue rises to the level of a dispute when all efforts to mitigate have led to each party having a difference of opinion on the matter.
A dispute is a disagreement and/or a difference of opinion between ODOT personnel and the Contractor. A dispute matures into a claim when an issue in dispute cannot be resolved at the Project or District level. A dispute officially becomes a claim when the Contractor files a Notice of Intent to File a Claim or a Notice of Intent to Appeal to the Dispute Review Board. At this time, the Contractor will be asked to certify the claim. The Contractor must certify under oath, by signing in front of a notary, that the claim is made in good faith, is accurate and complete, and represents the actual costs incurred both in time and money.
On Federal Oversight projects, once the dispute becomes a claim, ODOT is responsible for providing all subsequent documentation involving that claim to the Federal Highway Administration. The Department’s Claims Coordinator is responsible for these submittals.
The only entity that can assert a claim against the Department is the Prime Contractor. If the project is being performed by a joint venture, then only the joint venture can assert a claim. Do not discuss a dispute with a subcontractor without having the Contractor’s responsible representative present.
The Contractor has the burden of proving both entitlement and damages. If the Contractor cannot prove entitlement, the claim must be denied. Likewise, if the Contractor proves entitlement, but cannot prove that it incurred any cost and/or time impacts, the claim must be denied.
It is impossible to overemphasize the need for consistent, complete, and accurate project documentation. Contemporaneous records, documents written at the time of the event, normally carry more weight in claims decision-making than records written up at the time the claim is submitted for analysis. Project documentation must be clear and legible, written in real time, be a regular practice, and be sufficiently detailed to describe the writer’s thoughts. Examples of project documentation that are routinely used to support a claim position include pre-bid, pre-construction, and progress meeting minutes; daily diaries; force account records; idle equipment records; correspondence, including e-mails; RFI’s; transmittals/submittals; project schedule and changes; phone conversations; and photos and videos.
ODOT’s Dispute Resolution and Administrative Claims Process is a step-by-step sequence of events which occur following the Contractor’s Early Notice submittal described in C&MS 108.02.F. This notice is required when the Contractor discovers a circumstance that may require a revision to the contract documents or may result in a dispute.
C&MS 108.02.G sets forth the details of each of the three steps of the Dispute Resolution and Administrative Claims Process. These three steps include On-Site Determination, District Dispute Resolution Committee, and Director’s Claims Board. C&MS 108.02.G also sets forth specific submittal timeframes at each step which must be met by both the Contractor and ODOT personnel to move a dispute toward resolution. These timeframes are included as recognition that: (1) the Contractor deserves timely responses and (2) it is easier to resolve a dispute when the events are clear in everyone’s mind rather than allowing an issue to remain until the finalization stages of a project.
The Dispute Resolution and Administrative Claims Process (C&MS 108.02.G) is the default process and is included on all projects except those that use the Dispute Review Board Process (PN108) or utilize a Dispute Review Advisor (PN 109). The applicable process must be followed by the Contractor in order to seek additional compensation or contract time.
The Dispute Resolution Board (DRB) Process is used on select projects that are typically over $20 million and/or of a highly technical nature. Proposal Note 108 (PN 108) provides that a Dispute Resolution Board (DRB) be established prior to the start of construction of a project and exists through the life of that project. A DRB is comprised of three members, each with a minimum of 10 years’ experience in construction, contract administration, and dispute resolution techniques. One member is chosen by the Contractor, one member is chosen by ODOT, and those two members choose the Chair of the Board. members.
The DRB conducts quarterly meetings and is provided monthly progress meeting minutes, project schedule updates, and any other information it requests to keep up-to-date on the progress of the project. The DRB may also conduct a hearing at the third step in the Dispute Resolution Board Process and provide recommendations to the Director of ODOT as to the disposition of that claim.
PN 108 sets forth the details of each of the three steps of the Dispute Resolution Board Process. These three steps include On-Site Determination, District Dispute Resolution Committee, and the Dispute Resolution Board. PN 108 sets forth specific submittal timeframes at each step which must be met by both the Contractor and ODOT personnel to move a dispute toward resolution.
The DRB may also be asked by mutual agreement of both parties to render an Advisory Opinion. An Advisory Opinion may be used to provide the parties with a preliminary assessment of the merits of each party’s position in a dispute based upon the information presented. The process is meant to be expedient, primarily oral, and will not prejudice a future formal DRB hearing of the dispute.
The expectations and responsibilities of the Contractor, ODOT and the DRB as well as the compensation of the DRB members are included in the Dispute Resolution Board Three Party Agreement. This contract is signed by ODOT, the Contractor, and all three DRB members prior to the first DRB quarterly meeting.
A Dispute Resolution Advisor (DRA) is used on select projects whose contract value is between $5 million and $20 million. Proposal Note 109 (PN 109) provides that a Dispute Resolution Advisor (DRA) be established prior to the start of construction of a project and exists through the life of that project. A DRA is an individual with a minimum of 10 years’ experience in construction, contract administration, and dispute resolution techniques. The DRA is chosen based on the guidelines set forth in PN 109.
The DRA conducts quarterly meetings and is provided monthly progress meeting minutes, project schedule updates, and any other information it requests to keep up-to-date on the progress of the project. The DRA may also conduct a hearing at the third step in the Dispute Resolution Advisor Process and provide recommendations to the Director of ODOT as to the disposition of that claim.
PN 109 sets forth the details of each of the three steps of the Dispute Resolution Advisor Process. These three steps include: On-Site Determination, District Dispute Resolution Committee and the Dispute Resolution Advisor. PN 109 sets forth specific submittal timeframes at each step which must be met by both the Contractor and ODOT personnel to move a dispute toward resolution.
The DRA may also be asked by mutual agreement of both parties to render an Advisory Opinion. An Advisory Opinion may be used to provide the parties with a preliminary assessment of the merits of each party’s position in a dispute based upon the information presented. The process is meant to be expedient, primarily oral, and will not prejudice a future formal DRA hearing of the dispute.
The expectations and responsibilities of the Contractor, ODOT, and the DRA as well as the compensation of the DRA are included in the Dispute Resolution Advisor Three Party Agreement. This contract is signed by ODOT, the Contractor, and the DRA prior to the first DRA quarterly meeting.
Hold a Post-Construction Meeting prior to project finalization. Invite the design agency or any stakeholders necessary for the success of the meeting. Partnering shall be included as an agenda item. Use the standard Post Construction Meeting Agenda/Minutes form (CA-G-4) to document the meeting.
At least one representative each from the Contractor and ODOT should complete a Partnering Close-Out Survey at the conclusion of the project. Use the standard survey available online through the Division of Construction Management’s Partnering website. The standard survey title, “Partnering Close-Out Survey,” can be found at the following link:
The Contractor must submit a progress schedule, pursuant to C&MS 108.03. This schedule must show the Contractor's plan to carry out the work, the dates which the Contractor and subcontractor will start the critical work, including the procurement of materials and equipment, ordering special manufactured articles, working drawings, and the planned dates of critical project milestones.
A bar chart schedule is the default schedule required for all projects. More complex project may require the Contractor to use the Critical Path Method (CPM) progress schedule as specified by Proposal Note 107.
The progress schedule must be reviewed and accepted by the District Construction Administrator. The Project Engineer will review the schedule and forward his comments to the District Construction Administrator. The following items are to be used in determining an acceptable schedule:
The progress schedule is the responsibility of the Contractor. If the schedule does not make sense or is illogical, the District must ask for clarification. A revision of the details in question is required prior to acceptance.
The progress schedule is the main tool with which the owner can monitor the progress of the contract and determine at an instant the status of work. It is, therefore, very important that the Project Engineer accurately review the schedule before acceptance. Monitoring the progress schedule is very important in determining "fault" or responsibility for project delays. C&MS 108.06 allows the director to grant requests for an extension of time if the work was delayed. Guidelines for the review and acceptance of the bar chart schedule are specified in C&MS 108.03. Guidelines for the review and acceptance of Critical Path Method Progress Schedules are specified in Proposal Note 107.
There are several tools for monitoring the status of a project. The main tool, as stated above, is the monitoring of the progress schedule. The progress schedule must be reviewed at regular intervals with the Contractor at the project level by the Engineer and at the following times:
Results of this review must be included in the daily diary. The diary entry must list the reasons the Contractor cannot proceed with certain portions of the work. Accuracy and details in the daily diary concerning delays will protect the Department against the successful prosecution of many claims.
The Department may grant a time extension for excusable delays. The Contractor must make a written request giving details which will justify the granting of the request for this extra time. Methods to analyze requests for time extensions are explained in detail in C&MS 108.06 and Standard Procedure listed below.
Requests for extensions other than for weather and seasonal conditions shall be submitted in writing to the Engineer within 30 days following the termination of the delay and prior to the expiration of the extended contract date.
The District shall evaluate and process all requests for postponement of an interim completion date or a contract completion date within 30 days of receipt of the Contractor’s written request. Perform the evaluation consistent with contract progress schedule requirements for the project using appropriate analysis principles and techniques. If the request is approved, immediately process a change order in accordance with this procedure and the Standard Procedure for Processing Change Orders. If the request is denied, immediately notify the Contractor in accordance with Section III of this procedure.
2. The Contractor experienced an excusable, non-compensable delay due to (insert reason) as determined in accordance with C&MS 108.06.B. The revised (interim/contract) completion date is ______________.
3. The Contractor experienced an excusable, compensable delay due to (insert reason) as determined in accordance with C&MS 108.06.D. The revised (interim/contract) completion date is ______________. The allowable delay costs will be calculated in accordance with C&MS 109.05.D and processed on a subsequent change order.
Attach to the change order copies of analysis and progress schedules with support documentation or other justification substantiating the duration of the revision to the interim/contract completion date.
The District will notify the Contractor in writing, stating reasons for denial. In the event a recovery schedule is warranted, the District will request that the Contractor submit a detailed plan to finish that will show completion by the current contract completion date. If the Contractor disagrees with the denial of its request for time extension, the Contractor may pursue a remedy through the Department’s Dispute Resolution and Administrative Claim Process.
In the event that a request for an extension of time is not justified by the District and/or the Contractor falls behind schedule due to their fault or lack of responsibility, the Contractor may need to submit a recovery schedule.
When the progress differs appreciably from the original schedule (more than 14 calendar days), a revised schedule must be requested by the Department. A letter from the District Construction Administrator to the Contractor must be written to request a revised schedule and reasons for the delays. Once a new schedule is submitted and the reasons for delay are given by the Contractor, the Engineer must review the daily diary to determine the accuracy of these delays. If delays are due to poor or inexperienced workmen, C&MS 108.05 allows for removal of unskilled workmen from the project. If the delays claimed are caused by the Contractor, the revised schedule must show finishing by the original completion date and the method for recovery must be included.
Judgment must be used when reviewing the progress schedule. It may be possible that the dollars paid to the Contractor do not truly reflect the progress on the project. These issues must be discussed with the Contractor. A good time to do this is usually during the progress meetings when all parties involved with the project are present.
Delays may be associated with some of the claims listed above and may require careful analysis to determine who is responsible for the delay. It is important to keep the following principles in mind when evaluating a delay claim:
The Contractor must demonstrate that the delay was critical. It must be shown that the delay in question affected the overall project schedule and was a controlling operation with respect to project completion.
Excusable/Non Compensable (108.06.B) these are delays caused by third parties outside the Contractors' control. Examples include area wide labor disputes, floods, transportation industry delays, fire, vandalism, etc.
Non-Excusable (108.06.E) Non-Excusable delays are always non-compensable. These delays are caused by the Contractor or under his control. Examples are subcontractor delays, late mobilization, production takes longer than scheduled, equipment breakdowns etc.
Very often delays can occur from various sources at the same time. These are called Concurrent Delays (108.06.F). An ODOT caused compensable delay occurring at the same time as an excusable delay, which is non-compensable, should result in a time extension, but no recovery of costs. An ODOT caused delay occurring at the same time as a contractor caused delay should result in a time extension, but no recovery of costs. Both cases relieve the Contractor from liquidated damages for the time in question.
The Contractor is entitled to plan and pursue the work in order to finish ahead of the contract completion date (108.02.B.2). If ODOT delays the Contractor, the Contractor may be entitled to impact costs.
The Contractor and the Department must make a reasonable effort to mitigate damages resulting from a claim event, whether caused by the Department, Contractor, third party, or intervening event. Mitigation might include re-sequencing work activities, acceleration, continuing work through a planned shutdown period, etc. The Contractor may be entitled to recover the costs of mitigation. Prior to implementing a change of any kind, the Contractor and the Department must have agreed on the method of compensation and time responsibilities in writing.
If the Contractor fails to complete the work by the contract completion date (original or revised), he must request permission of the Engineer to remain in control of the work. The Contractor must make this request in writing and may be required to provide a written plan for completion of the work. This requirement is described in Section 108.07 of the C&MS, which includes a table of liquidated damages.
Since the advent of SiteManager, the computer now deducts liquidated damages automatically from the estimates until dates for completion are entered or the time extension/waiver is processed and entered into the system.
Termination by convenience is explained in Section 108.09 of the C&MS and allows the Department to terminate a contract at any time. Several projects involving huge plan errors have been terminated. This is done to give the Department time to revise the plans and to allow the project to be bid competitively, rather than perform all work on change orders on the existing project.
Termination by default or cause is not an immediate event. This type of default requires a series of events to occur over a period of time, all of which must be documented by the Department. Progressive documentation must occur and extensive records must be kept to avoid any legal action against the Department.