108PROSECUTION AND PROGRESS

108.01Subletting ofthe Contract.Perform Work amounting to not less than 50 percent of the Contract Price with its own organization, unless otherwise approved by the Director.The phrase ďits own organizationĒ includes only workers employed and paid directly, inclusive of employees who are employed by a lease agreement acceptable to the Department, and equipment owned or rented with or without operators by the Contractor.The phrase does not include employees or equipment of a subcontractor, assignee, or agent of the Contractor.Obtain the Directorís written consent to subcontract, sublet, sell, transfer, assign, or otherwise relinquish rights, title, or interest in the Work.Provide the Director with a copy of all Disadvantaged Business Enterprise subcontracts.

The Contractorís percentage of the total Contract Price includes the cost of materials and manufactured products purchased by the Contractor, but not the cost of materials and manufactured products purchased by subcontractors.

The Director will calculate the Contractorís percentage based on the quantities shown in the Proposaland the unit prices of the contract items to be performed by the Contractorís organization.If the Contractor performs only a portion of a contract item, then the Director will determine the proportional value administratively on the same basis.The Director will follow this procedure even when the part not subcontracted consists only of the procurement of materials.However, if a firm both sells the materials to the Contractor and performs the Work of incorporating the materials into the Project, then the Department will consider these two phases in combination and as a single subcontract.If an affiliate of the firm either sells the materials or performs the Work, the Department may refuse approval.An affiliate is one who has some common ownership or other close relation to said firm.

Use actual subcontract prices for calculating compliance with any Disadvantaged Business Enterprise (DBE) percentage subcontracting obligations.If only a part of a contract item is sublet, then determine its proportional value administratively on the same basis.The Director will follow this procedure even when the part not sublet consists only of procuring materials.However, if a firm both sells the materials to the Contractorand performs the work of incorporating the materials into the Project, then the Department will consider these two phases in combination and as a single subcontract.If an affiliate of the firm either sells the materials or performs the Work, the Department may refuse approval.

108.02Preconstruction Conference, Partnering, and ProgressSchedule.Meet with the Engineerfor a preconstruction conference before beginning the Work.At or before the conference, submit the initial progress schedule to the DCE.Prepare the schedule according to 108.02.

At or before the conference, furnish a list of proposed subcontractors and major material suppliers not included in the list submitted before the execution of the Contract.If the Contractorfails to provide the required submissions at or before the preconstruction conference, the Engineermay order the conference suspended until they are furnished.Do not begin the Work until the conference is reconvened and concluded or the Engineer gives specific written permission to proceed.

A.††††† Partnering.It is the intent of the Department to partner every project.Therefore, enter into a cooperative partnership agreement with the Department on each Project.The objective of this agreement is the timely completion of the Work and a quality product that will be a source of pride to both the Department and the Contractor.This Partnering Agreement will not affect the terms and conditions of the Contract.It is a document that is solely intended to establish an environment of cooperation between the parties.The cost of the partnering workshop(s) will be agreed to and shared equally between the Department and the Contractor.The Contractor will pay all costs directly and the Department will authorize its share to the Contractor by Change Order.The Contractor is not entitled to any mark ups on these costs.

B.††††† ProgressSchedule.

1.††††† General.Prepare and submit a progress schedule, of the type specified in the Contract Documents, to the DCE for review at or before the preconstruction conference.The Engineerwill review the schedule and within 14 Calendar Days of receipt, will either accept the schedule or provide the Contractorwith comments.Acceptanceof the schedule does not revise the Contract Documents.Provide clarification or any needed additional information within 10 days of a written request by the Engineer.The Department will withhold Estimates until the Engineer accepts the schedule.

2.††††† Early Completion Schedule.An Early Completion Schedule is defined as a baseline schedule which anticipates completion of all work prior to the Completion Date established by the contract documents and the Contractorsubmits as an Early Completion Schedule.In the event that an Early Completion Schedule is accepted, the Engineerwill initiate a change order amending the Completion Date to the finish date shown on the accepted Early Completion Schedule.The amended Completion Date will be effective upon execution of that change order and all contract provisions concerning the Completion Date such as incentives, disincentives, excusable delays, compensable delays, and liquidated damages will be measured against the amended Completion Date. The Contractor may elect not to execute the change order amending the Completion Date; however, in so doing, the Contractor waives its rights to delay damages in meeting the projected early Completion Date.

3.††††† Recovery Schedule.Submit an updated schedule as required in the Contract Documents.If the progress schedule projects a finish date for the Project more than 14 Calendar Days later than the Completion Date, submit a revised schedule showing a plan to finish by the Completion Date.The Department may withhold Estimates until the Engineeraccepts the revised schedule.The Engineer will use the schedule to evaluate time extensions and associated costs requested by the Contractor.

4.††††† Schedule Documentation for Time Extensions.Furnish documentation, including schedule updates, to support all time extension requests.

5.††††† Schedule Measurement and Payment.Unless otherwise included as a pay item in the Contract Documents, the cost of preparing and updating the schedule is incidental to all contract items.

108.03Prosecution and Progress.Start the Work according to 108.02.Notify the Engineerat least 24 hours before starting the Work.If the prosecution of the Work is suspended, notify the Engineer a minimum of 24 hours in advance of resuming operations.

Pursue the Work diligently and continuously as to complete the Project by the Completion Date.

108.04Limitation of Operations.Limit operations to prevent unnecessary inconvenience to the traveling pubic.If the Engineerconcludes that the extent of the Contractorís Work unnecessarily inconveniences the public or concludes limiting operations are necessary to protect the existing or new construction from damage, the Engineer will require the Contractor to finish portions of Work in progress before starting new Work.

108.05Character of Workers, Methods, and Equipment.Provide personnel with sufficient skills and experience to perform assigned tasks.

If the Engineergives written notification that specific Contractoror subcontractor personnel are improperly performing the Work, intemperate, disorderly, or creating a hostile work environment, remove the identified personnel from the Project.Do not allow removed personnel to return to the Project without the Engineerís approval.

The Engineermay suspend the Work by written notice under this subsection for the following reasons:

A.†††† The Contractordoes not furnish sufficient skilled and experienced personnel to complete the Project by the Completion Date.

B.††††† The Contractordoes not remove personnel from the Project as directed in writing by the Engineer.

Use equipment of sufficient size and mechanical condition to complete the Project by the Completion Date.Ensure that the equipment does not harm the roadway, adjacent property, other highways, workers, or the public.

If the Contract Documents do not prescribe the methods and equipment required to accomplish the Work, determine the methods or equipment necessary to complete the Work according to the Contract.

If the Contract Documents specify methods and equipment to perform the Work, use such methods and equipment, unless others are authorized by the Engineer.Obtain the Engineerís written approval before substituting alternate methods or equipment.To obtain the Engineerís approval, submit a written description of the alternate methods and equipment proposed and an explanation of the reasons for making the change.The Engineerís approval of the substitute methods and equipment does not relieve the Contractorof the obligation to produce Work according to 105.03.If after trial use of the substituted methods or equipment, the Engineer determines that the Work does not conform to the Contract Documents, then complete the remaining Work using the specified methods and equipment.Remove all deficient Work and replace it according to the Contract Documents, or take such other corrective action as directed by the Engineer.The Engineerís authorization to substitute alternate methods and equipment will not change the basis of payment for the construction items involved or the Contract Time.

108.06Determining a Time Extension to the Completion Date and Payment for Excusable Delays.

A.††††† General.The Department will only extend the Completion Date if an excusable delay, as specified in 108.06.B or 108.06.D, delays Work on the critical path shown on the accepted progress schedule.The critical path is defined as the sequence of activities that must be completed on time to ensure that the Project finishes by the Completion Date.

Mitigation of any delay, whether caused by the Department, Contractor, third-party or an intervening event, is a shared contract and legal requirement.Mitigation efforts include, but are not limited to, re-sequencing work activities, acceleration, and continuation of work through an otherwise planned shutdown period.The Contractor and Engineermust explore and discuss potential mitigation efforts in a timely manner and must agree upon costs or cost sharing responsibilities prior to their implementation.

The Department will not evaluate a request for extension of the Completion Date unless the Contractornotifies the Engineeras specified in 104.02.G and provides the required analysis as specified in 108.02.B.4.The Engineer will evaluate the Contractorís analysis and determine the time extension due, if any.The Engineer will measure all time extensions in Calendar Days.For delays measured in Workdays, the Engineer will convert Workdays to Calendar Days by multiplying by 1.4 for a 5-day work week or less; 1.2 for a 6-day work week; and 1 for a 7-day work week; and extend the Completion Date by the resulting number of Calendar Days plus any holidays the Contractor does not normally work that occur in the extension period.When the conversion of Workdays to Calendar Days results in a decimal of 0.5 or greater, the Engineer will round the number of Calendar Days to the next highest whole number.When the conversion results in a decimal less than 0.5, the Engineer will delete the decimal portion of the Calendar Days.

The Engineerwill not grant an extension of time for delays incurred from December 1 to April 30 unless the Contractorís accepted progress schedule depicts work on the critical path occurring during this period.

The Engineermay order the Contractorto continue Work after November 30 and compensate the Contractor for costs incurred due to cold weather Work.

The Contractorís plea that insufficient time was specified is not a valid reason for an extension of time.

The Department will relieve the Contractorfrom associated liquidated damages, as specified in 108.07, if the Engineerextends the Completion Date under 108.06.A.

B.††††† Excusable, Non-Compensable Delays.Excusable, non-compensable delays are delays that are not the Contractorís or the Departmentís fault or responsibility.The Engineerwill not grant additional payment for excusable, non-compensable delays.

The following are excusable, non-compensable delays:

1.†††††† Delays due to floods, tornadoes, lightning strikes, earthquakes, or other cataclysmic phenomena of nature.

2.†††††† Delays due to weather as specified in 108.06.C.

3.†††††† Extraordinary delays in material deliveries the Contractoror its suppliers cannot foresee or avoid resulting from freight embargoes, government acts, or area-wide material shortages.Delays due to the Contractorís, subcontractorís, or supplierís insolvency or mismanagement are not excusable.

4.†††††† Delays due to civil disturbances.

5.†††††† Delays from fires or epidemics.

6.†††††† Delays from labor strikes that are beyond the Contractorís, subcontractorís, or supplierís power to settle and are not caused by improper acts or omissions of the Contractor, subcontractor, or supplier.

7.†††††† Added quantities that delay an activity on the critical path.

8.†††††† All other delays not the Contractorís and Departmentís fault or responsibility.

C.††††† Extension to the Completion Date for Weather. Submit requests for extensions of time due to weather or seasonal conditions that delayed items of Work on the critical path, in writing to the Engineerat the end of each month.The Engineer will extend the Completion Date 1 workday for each lost workday caused by weather, except for workdays lost from December 1 to April 30.

When the Contractorís accepted progress schedule depicts Work on the critical path occurring during the period from December 1 to April 30, then the Engineerwill provide a time extension for weather days lost in excess of those tabulated in Table 108.06-1.

Table 108.06-1

Month

Number of Workdays

Lost Due to Weather

December

6

January

8

February

8

March

7

April

6

 

The Engineerwill grant a time extension for every workday that weather reduces production by more than 50 percent on items of Work on the critical path.The Engineer will not consider weekends and holidays as lost workdays unless the Contractornormally works those days or unless the Engineer directs the Contractor to work those days.

D.††††† Excusable, Compensable Delays.Excusable, compensable delays are delays that are not the Contractorís fault or responsibility, and are the Departmentís fault or responsibility or are determined by judicial proceeding to be the Departmentís sole responsibility or are the fault and responsibility of a local government.For the following excusable, compensable delays, the Engineerwill extend the Completion Date if the conditions specified in 108.06.A are met:

1.†††††† Delays due to revised Work as specified in 104.02.B, 104.02.D, or 104.02.F.

2.†††††† Delays due to utility or railroad interference within the Project limits.

3.†††††† Delays due to an Engineer-ordered suspension as specified in 104.02.C.

4.†††††† Delays due to acts of the government or a political subdivision other than the Department; however, these compensable delay costs are limited to escalated labor and material costs only, as allowed in 109.05.D.2.b and 109.05.D.2.d.

5.†††††† Delays due to the neglect of the Department or its failure to act in a timely manner.

Compensationfor excusable, compensable delays will be determined by the Engineeraccording to 109.05.D.

E.††††† Non-Excusable Delays.Non-excusable delays are delays that are the Contractorís fault or responsibility.All non-excusable delays are non-compensable.

F.††††† Concurrent Delays.Concurrent delays are separate critical delays that occur at the same time.When a non-compensable delay is concurrent with a compensable delay, the Contractoris entitled to additional time but not entitled to additional compensation.

108.07Failure to Complete on Time.If the Contractorfails to complete the Work by the Completion Date, then the Director, if satisfied that the Contractor is making reasonable progress, and deems it in the best interest of the public, may allow the Contractor to continue in control of the Work.The Department will pay the Contractor for Work performed on the Project less any liquidated damages incurred.

If the Work is not completed by the Completion Date and the Director permits the Contractorto remain in control, prosecute the Work at as many different places, at such times, and with such forces as the Director requests.Provide a written plan for the completion of the Work.

For each calendar day that Work remains uncompleted after the Completion Date, the Department will deduct the sum specified herein from any money due the Contractor, not as a penalty, but as liquidated damages.The Director will adjust the Completion Date or other contractually mandated dates as specified in 108.06.In the event one or more interim Completion Dates are specified without specific separate liquidated damages,the amount set forth in the schedule herein will separately apply to each interim date.In the event a period of liquidated damages for an interim Completion Date overlaps a subsequent Completion Date, the higher rate of liquidated damages will apply for the duration of the overlap.

Permitting the Contractorto continue and complete the Work or any part of the Work after the Completion Date, or after extensions to the Completion Date, will in no way operate as a waiver on the part of the Department of any of its rights under the Contract.

The Director may stop deducting liquidated damages that accrue after the Work is in a condition for safe and convenient use by the traveling public.

Table 108.07-1SCHEDULE OF LIQUIDATED DAMAGES

Original Contract Amount

(Total Amount of the Bid)

Amount of Liquidated

Damages to be

Deducted for Each

Calendar Day of

Overrun in Time

From More Than

To and Including

$0.00

$500,000

$700

$500,000

$2,000,000

$760

$2,000,000

$10,000,000

$1,250

Over 10,000,000

$2,000

 

108.08Unsatisfactory Progressand Default of Contractor.The Director will notify the Contractor in writing of unsatisfactory progress for any of the following reasons:

A.†††† The Contractorhas not commenced the Work by the dates established in the schedule.

B.††††† The Contractordoes not proceed with the Work in a manner necessary for completion of the Project by the Completion Date.

C.††††† The Contractoris performing the Work improperly.

D.††††† The Contractorabandons, fails, or refuses to complete the Work.

E.††††† Any other reason the Director believes jeopardizes completion of the Work by the Completion Date.

If the Contractordoes not respond to the satisfaction of the Director, the Director may declare the Contractor in default and may notify the Contractor and Surety that the responsibility to complete the Work is transferred to the Surety.Upon receipt of this notification, the Contractorís right to control and supervise the Work will immediately cease.In such a case, the Director will proceed as specified in ORC 5525.17.If it is determined that the Departmentís default of the Contractor according to 108.08 is wrongful, then the default will revert to a termination of the Contract according to 108.09.

108.09Termination ofthe Contract for Convenience of the Department.The Director may terminate the Contract at any time for the convenience of the Department.The Department will compensate the Contractoraccording to 109.04 and 109.05 for termination of the Contract for the convenience of the Department.This subsection is subject to the provisions of ORC 5525.14.

108.10Payroll Records.Keep payroll records as specified in ORC 4115.07 or as required by Federal law.

Authorized representatives of the Director may inspect the certified payroll and other payroll records.Upon completion of the Work and before receiving the final estimate and when required by ORC 4115.07, submit an affidavit stating that wages have been paid according to the minimum rates specified in the Contract Documents.

108.11Post Construction Meeting.It is the intent of the Department to conduct a post construction meeting with the Contractorapproximately 10 days after final inspection. The District will determine the time and place for the meeting.The District may contact the design agency or consultant and the local government agency to request a representative attend this meeting.

The purpose of this meeting is to document and evaluate the projectís challenges and successes.The Engineerwill prepare a Record of Learning report that includes a summary of the issues and resolutions from all the status report forms and comments from the Contractor.The intent of this report is to provide a feedback loop from the construction staff to the production staff in order to improve the quality of future plans.The Engineer will send the report to the District Production Office and the Office of Construction Administration.The Office of Construction Administration will publish and distribute an annual summary of all the District Record of Learning reports to help with constructability reviews on future projects.The Office of Construction Administration report will highlight common issues among Districts and will recommend resolutions and process improvements for use throughout the State.

Both parties will discuss their performance including sublet portions of the Project.This shall include the Contractorís C95 evaluation form and the Contractor feedback form.Conduct a partnering evaluation survey to help get participantsí feedback and improve the partnering process.(Sample evaluations are shown in the ODOT Partnering Handbook.)

The cost of attending this meeting is incidental to the Contract.