104.01 Intent of the Contract Documents. The intent of the Contract Documents is to provide for the construction and completion of the Work. Perform the Work according to the Contract Documents.

104.02 Revisions to the Contract Documents.

A. General. The Department reserves the right to revise the Contract Documents at any time. Such revisions do not invalidate the Contract or release the Surety, and the Contractor agrees to perform the Work as revised.

The provisions of this section are subject to the limitation of ORC 5525.14.

B. Differing Site Conditions. During the progress of the Work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the Contract Documents or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract Documents, are encountered at the site, notify the Engineer as specified in 104.05 of the specific differing conditions before they are disturbed or the affected Work is performed.

Upon notification, the Engineer will investigate the conditions and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any Work under the Contract, the Department will make an adjustment and modify the Contract as specified in 108.06 and 109.05. The Engineer will notify the Contractor of the determination whether or not an adjustment of the Contract is warranted.

C. Suspension of Work. If the performance of all or any portion of the Work is suspended or delayed by the Engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation or time is due as a result of such suspension or delay, notify the Engineer as specified in 104.05.

Upon receipt of notice, the Engineer will evaluate the Contractor’s request. If the Engineer agrees that the cost or time required for the performance of the Work has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the Engineer will make an equitable adjustment (excluding profit) and modify the contract as specified in 108.06 and 109.05. The Engineer will notify the Contractor of its determination whether or not an adjustment to the Contract Documents is warranted. Failure of the Engineer to suspend or delay the Work in writing does not bar the Contractor from receiving a time extension or added compensation according to 108.06 or 109.05.

The Department will not make an adjustment under this subsection in the event that performance is suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this Contract.

D. Significant Changes in Character of the Work. The Engineer may alter the Work as necessary to complete the Project. The Engineer will make appropriate adjustments according to 108.06 and 109.05, if such alterations significantly change the character of the Work.

If the Contractor disagrees as to whether an alteration constitutes a significant change, use the notification procedures specified in 104.0205.

The term “significant change” is defined as follows:

1. when the character of the Work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or

2. when the product of the quantity in excess of the estimated quantity of a contract item and the unit price exceeds the limits set forth in Table 104.02-1.

Table 104.02-1
Contract Price	Contract Limits
Up to $500,000	$25,000
$500,001 to $2,000,000	5% of Total Contract Price
Over $2,000,000	$100,000

If the decrease in quantity of any unit price Contract Item exceeds 25 percent of the estimated quantity, and the total of all such adjustments for all Contract Items is more than $400, then after the determination of final quantities according to 109.12.C, the Engineer will adjust the unit prices for the affected Contract item by multiplying the bid unit price by the factor obtained from Table 104.02-2.

Table 104.02-2
% Decrease	Factor	% Decrease	Factor
25 to 28	1.02	61	1.14
29 to 32	1.03	62	1.15
33 to 35	1.04	63	1.16
36 to 38	1.05	64	1.17
39 to 41	1.06	65	1.18
42 to 44	1.07	66	1.19
45 to 47	1.08	67	1.20
48 to 50	1.09	68	1.21
51 to 53	1.10	69	1.22
54 to 56	1.11	70	1.23
57 to 59	1.12	71	1.24
60	1.13	72 and over	1.25

When the increase in quantity or decrease in quantity of any unit price contract item does not exceed the limits set forth in Tables 104.02-1 and 104.02-2, there is no significant change in the character of the work and the change is considered a minor change. Department will pay for minor changes in the Work at the unit bid price.

E. Eliminated Items. The Department may partially or completely eliminate contract items.

The Department will only make an adjustment to compensate the Contractor for the reasonable cost incurred in preparation to perform significantly changed work as set forth in 104.02.D or work completely eliminated prior to the date of the Engineer’s written order to significantly change or completely eliminate the Work. The adjustment will be determined according to 109.04 and 109.05. Such payment will not exceed the price of the Contract Item.

The Department will not seek a savings for maintaining traffic, mobilization, and construction layout stakes items for Eliminated Items of Work, unless there is a significant change.

F. Extra Work. Perform Extra Work as directed by the Engineer. The Department will pay for Extra Work as specified in 109.05. Time extensions, if warranted, will be determined according to 108.06.

G. Unilateral Authority to Pay. The Department has unilateral authority to pay the contractor sums it determines to be due to the contractor for work performed on the project. This unilateral authority to pay by the Department does not preclude or limit the rights of the Department and the contractor to negotiate and agree to the amounts to be paid to the contractor.

104.03 Rights in and Use of Materials Found on the Work. Upon obtaining the Engineer’s approval, the Contractor may use material, such as stone, gravel, or sand, found in the plan excavation for another Contract Item. The Department will pay for both the excavation of the material under the corresponding Contract Item and for the placement of the excavated material under the Contract Item(s) for which the excavated material is used. Excavate or remove material only from within the grading limits, as indicated by the slope and grade lines.

Obtain written permission from the Engineer according to 107.11.A.

104.04 Cleaning Up. Maintain the Project in a presentable condition. Remove all rubbish, layout stakes, sediment control devices as directed by the Engineer, excess material, temporary structures, and equipment, including stream channels and banks within the Right-of-Way at drainage structures, and all borrow and waste areas, storage sites, temporary plant sites, haul roads, and other ground occupied by the Contractor in connection with the Work. Establish suitable vegetative cover in these areas by seeding and mulching according to Item 659, except for cultivated fields. Leave the Project site in an acceptable condition as determined by the Engineer. The cost of cleanup is incidental to all contract items. The Department may withhold 10 percent of the Bid amount for the mobilization contract item, if included, until performance under this section is complete. See 624.04.

104.05 Contractor Notification, Continuation of Work, Disputes and Claims. Exhaust the Department’s Dispute Resolution and Administrative Claim process as set forth below prior to seeking additional compensation or contract time by filing an action in the Ohio Court of Claims. The following procedures do not compromise the Contractor’s right to seek relief in the Ohio Court of Claims.

All parties to the dispute must adhere to the Dispute Resolution and Administrative Claim process. Do not contact Department personnel who are to be involved in a Step 2 or Step 3 review until a decision has been issued by the previous tier. Department personnel involved in Step 2 or Step 3 reviews will not consider a dispute until the previous tier has properly reviewed the dispute and issued a decision.

Failure to meet any of the timeframes outlined below or to request an extension may terminate further review of the dispute and may serve as a waiver of the Contractor’s right to file a claim.

Disputes and claims by subcontractors and suppliers may be pursued by the Contractor on behalf of subcontractors or suppliers. Disputes and claims by subcontractors and suppliers against the Department but not supported by the Contractor will not be reviewed by the Department. Disputes and claims of subcontractors and suppliers against the Contractor will not be reviewed by the Department.

A. Contractor Initial Oral Notification. Provide immediate oral notification to the Engineer upon discovering a circumstance that may require a revision to the Contract Documents or may result in a dispute. Upon notification, the Engineer will attempt to resolve the identified issue as quickly as possible.

B. Contractor Written Early Notice. If the Engineer has not resolved the identified issue within 2 working days after receipt of oral notification, provide written notice to the Engineer of any circumstance that may require a revision to the Contract Documents or may result in a dispute. This early notice must be given by the end of the second working day following the occurrence of the circumstance.

The Engineer and Contractor shall maintain records of labor, equipment, and materials used on the disputed work or made necessary by the circumstance. Such records will begin when early notice is received by the Engineer. Tracking such information is not an acknowledgement that the Department accepts responsibility for payment for this disputed work.

C. Continuation of Work. Continue with all Work, including that which is in dispute. The Department will continue to pay for Work.

D. No Contract Adjustment Without Notification. The Department will not make the adjustments allowed by 104.02.B, 104.02.C, and 104.02.D if the Contractor did not give notice as specified in 104.05.A and 104.05.B. This provision does not apply to adjustments provided in Table 104.02-2.

E. Step 1 (On-Site Determination). The Engineer will meet with the Contractor’s superintendent within two (2) working days of receipt of the Contractor Written Early Notice set forth in 104.05.B. They will review all pertinent information and contract provisions and negotiate in an effort to reach a resolution according to the Contract Documents. The Engineer will issue a written decision of Step 1 within fourteen (14) calendar days of the meeting. If the dispute is not resolved either abandon or escalate the dispute to Step 2.

F. Step 2 (District Dispute Resolution Committee). Each District will establish a District Dispute Resolution Committee (DDRC) which will be responsible for hearing and deciding disputes at the Step 2 level. The DDRC will consist of the District Deputy Director, District Highway Management Administrator and District Construction Engineer or designees (other than the project personnel involved).

Within seven (7) calendar days of receipt of the Step 1 decision, submit a written request for a Step 2 meeting to the District Construction Engineer (DCE). The DCE will assign the dispute a dispute number. Within fourteen (14) calendar days of receipt of the request for a Step 2 meeting, submit the Dispute Documentation as follows:

1. Submit three (3) complete copies of the documentation of the dispute to the DCE.

2. Identify the Dispute on a cover page by county, project number, Contractor name, subcontractor or supplier if involved in the dispute, and dispute number.

3. Clearly identify each item for which additional compensation and/or time is requested.

4. Provide a detailed narrative of the disputed work or project circumstance at issue. Include the dates of the disputed work and the date of early notice.

5. Reference the applicable provisions of the plans, specifications, proposal, or other contract documents in dispute. Include copies of the cited provisions in the Dispute Documentation.

6. Include the dollar amount of additional compensation and length of contract time extension requested.

7. Include supporting documents for the requested compensation stated in number six (6) above.

8. Provide a detailed schedule analysis for any dispute involving additional contract time, actual or constructive acceleration, or delay damages. At a minimum, this schedule analysis must include the Schedule Update immediately preceding the occurrence of the circumstance alleged to have caused delay and must comply with accepted industry practices. Failure to submit the required schedule analysis will result in the denial of that portion of the Contractor’s request.

9. Include copies of relevant correspondence and other pertinent documents.

The DDRC will conduct the Step 2meeting with Contractor personnel who are authorized to resolve the dispute within fourteen (14) calendar days of receipt of the Contractor’s Dispute Documentation. The DDRC will issue a written decision of Step 2 within fourteen (14) calendar days of the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 3.

G. Step 3 (Director’s Claims Board Hearing or Alternative Dispute Resolution). Submit a written Notice of Intent to File a Claim to the Claims Coordinator in the Division of Construction Management within fourteen (14) calendar days of receipt of the Step 2 decision. Include the Contractor’s request for either: 1.) a Director’s Claim Board hearing on the claim or 2.) an acceptable Alternative Dispute Resolution (ADR) practice.

The dispute becomes a claim when the Claims Coordinator receives the Notice of Intent to File a Claim.

1. Director’s Claims Board Hearing. The Director’s Claims Board (the Board) will consist of the Deputy Director of the Division of Construction Management, Deputy Director of Highway Operations, and the Deputy Director of Production Management, or designees. The Office of Chief Legal Counsel will provide legal advice to the Board. The Director or designee will be responsible for deciding claims.

Submit six (6) complete copies of the Claim Documentation to the Claims Coordinator within thirty (30) calendar days of receipt of the Notice of Intent to File a Claim. This timeframe may be extended upon mutual agreement of the parties and with approval of the Claims Coordinator.

In addition to the documentation submitted at Step 2:

a. Enhance the narrative to include sufficient description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.

b. Certify the claim in writing and under oath using the following certification:

I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good faith, that all supporting data is accurate and complete to the best of my knowledge and belief, and that the claim amount accurately reflects the contract amendment for which ( Contractor Company name) believes the Department is liable.

Sign and date this claim certification and have the signature notarized pursuant to the laws of the State of Ohio. The date the Claims Coordinator receives the certified claim documentation is the date of the Department’s Receipt of the Certified Claim for the purpose of the calculation of interest as defined in 104.05.H. The Claims Coordinator will forward one (1) complete copy of this documentation to the District.

Within thirty (30) calendar days of the District’s receipt of the Contractor’s Claim Documentation, the District will submit six (6) complete copies of its Claim Documentation to the Claims Coordinator. In the event that the Contractor is granted a time extension for the submission of its Claim Documentation, the District will be granted an equal time extension for submission of its Claim Documentation. At a minimum, the District’s Claim Documentation should include:

a. An overview of the project.

b. A narrative of the disputed work or project circumstance at issue with sufficient description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.

c. The dates of the disputed work and the date of early notice.

d. References to the applicable provisions of the plans, specifications, proposal, or other contract documents. Copies of the cited provisions shall be included in the claim document.

e. Response to each argument set forth by the Contractor.

f. Any counterclaims, accompanied by supporting documentation, the District wishes to assert.

g. Copies of relevant correspondence and other pertinent documents.

Within fourteen (14) calendar days of receipt of the District’s Claim Documentation, the Claims Coordinator will forward one (1) complete copy to the Contractor and will schedule a hearing on the dispute.

Once a hearing date has been established, both the Contractor and District shall provide the Claims Coordinator with a list of names of persons who may be presenting information at the hearing. Unless otherwise permitted by the Board, the exchange of documentation and all disclosures specified in this step of the process shall be completed at least fourteen (14) calendar days prior to the hearing.

Upon request or at the Board’s discretion, the Board may delay the hearing one (1) time to allow more time for review and requests for more documentation.

The Board will hear the entire claim on behalf of the Director. The Board may have technical advisors at the hearing for assistance in reviewing the claim. The Contractor and District will each be allowed adequate time to present their respective positions before the Board. The Contractor and District will also each be allowed adequate time for one (1) rebuttal limited to the scope of the opposing party’s presentation. The Contractor’s position will be presented by a Contractor’s representative who is thoroughly knowledgeable of the claim. Similarly, the District’s position will be presented by a District representative who is thoroughly knowledgeable of the claim. Each party may have others assist in the presentation.

The Board may, on its own initiative, request information of the Contractor in addition to that submitted for the hearing. If the Contractor fails to reasonably comply with such request, the Board may render its decision without such information.

Upon completion of the hearing and consideration of any additional information submitted upon request, the Board will submit a written recommendation on the disposition of the claim to the Director. The Director or designee will ratify, modify, or reject the recommendation of the Board and render a decision within sixty (60) calendar days of the hearing. Within thirty (30) calendar days of receipt of the Board’s decision, either accept or reject the decision in writing. In the event the Contractor fails to do so, the Board may revoke any offers of settlement contained in the decision.

The decision of the Director is the final step of the Department’s Dispute Resolution Process and may not be appealed within the Department. The Director is not bound by any offers of settlement or findings of entitlement made during Steps 1 and 2 of the Dispute Resolution Process.

2. Alternative Dispute Resolution (ADR). In lieu of the Board hearing, the Contractor may opt to proceed through an Alternative Dispute Resolution (ADR) Process. The Department will choose either binding arbitration as defined by ORC 5525.23 or mediation in the manner in which those methods are practiced by the Department and allowed by law.

The Claims Coordinator will coordinate the agreement of the parties to the ADR method, and the selection of a neutral third party or technical expert. The fees of the neutral third party or technical expert will be shared equally between the Department and the Contractor. The Claims Coordinator will obtain a written agreement, signed by both parties, that establishes the ADR process. The neutral third party or technical expert will have complete control of the claim upon execution of the ADR agreement.

H. Interest on Claims. The Department will pay interest in accordance with ORC Section 5703.47 on any amount found due on a claim which is not paid within 30 days of the Claims Coordinator's Receipt of the Certified Claim.