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 theat
time a Preconstruction
Meeting is scheduled, 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.
·
Addenda.
A check of the status of
utility relocation (must be performed immediately as to avoid delays to the
start of the project).
Partnering (108.02)
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 Contractor will
contact the District to schedule a preconstruction meeting following the
signing of a contract and before beginning work. 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:
·
Subcontractors.
·
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.
·
State the haul
roads (C&MS Section l05.l3)
and waste and borrow areas (C&MS Section
l05.16) to be used.
·
Submit
documentation itemizing the payroll taxes that the project will incur under
C&MS l09.04.A
and 109.05.C.2
if extra work is added to the project.
·
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.
Payment
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:
·
The
Partnering relationship on the project.
·
The
progress towards the goals established in the Preconstruction Meeting.
·
Report
any issues that have been discovered on the project and how resolution has been
approached, including timing with respect to the raising and consideration of
the claims at all levels.
·
Report
the implementation plans for risk mitigation and opportunity enhancement.
·
Identify
additional risks and opportunities.
·
Develop
any additional, necessary strategies to improve project performance.
Report
all findings in the project minutes with copies sent to the senior personnel
team for the review.
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:
http://www.surveymonkey.com/s/ODOT_Partnering_Monitoring_Survey
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.
Every
claim has two distinct elements:
Certain
types of disputes by their nature are those which are most likely to result in
a claim. The most common claims deal with:
- Interpretation
of contract documents (102.05, 102.07, 104.01, 105.01, 105.04).
- Differing
site conditions (102.05, 102.07, 104.02.B).
- Extra
work (104.02.F, 109.05).
- Repair
of defective work/material (105.01, 105.03, 105.10, 105.11, 106.07, 107.15).
- Suspension
of work/failure to continue work (104.02.C, 104.02.G.3, 108.05, 108.08).
- Acceleration
(109.06).
- Significant
changes in the character of the work (104.02.D, 104.02.E).
- Interference
by/cooperation with third-party (105.07, 105.08, 107, 108.04).
- Inspection
(over/under) (105.01, 105.03, 105.09, 105.10, 105.11, 106.03, 106.07, 109.12).
- Inefficiencies
(109.07).
- Quantity
variations (102.04, 109.01, 109.04).
- Delays
(108.06, 109.05.D).
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.
Contractors
utilize various approaches to present the damages associated with a claim.
Below are the most common:
The
following step-by-step process should be used to analyze a claim.
ENTITLEMENT:
DAMAGES:
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.
Claim
avoidance, at its most basic level, is accomplished by removing or lessening
the factors which contribute to claims. Discussed below are some of the methods
used by the Department:
The
Department takes a proactive approach which seeks to avoid disputes and claims.
In the event disputes or claims do arise, orderly procedures are in place to
assist with managing the claims.
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.
Dispute Resolution Board Process (PN 108)
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.
Payment
Dispute Resolution Advisor (PN 109)
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.
Payment
Documentation Requirements – PN 108 Dispute
Resolution Board Process & PN 109 Dispute
Resolution Advisor
- Check
monthly invoice hours for accuracy and reasonableness.
- Invoiced
hourly rates cannot exceed hourly rates set-up in Three Party Agreement.
- Invoiced
travel expenses cannot exceed maximums established in Ohio Office of
Budget and Management’s Travel Policy.
- Verify
all totals are mathematically correct.
- Verify
items paid at 50/50 percent ODOT/Contractor split are correct.
- Document
monthly Contractor reimbursement total on CA-D-1B.
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:
http://www.surveymonkey.com/s/ODOT_Partnering_CloseOut_Surveyhttp://www.surveymonkey.com/s/ODOT_Partnering_CloseOut_Survey
Progress
Schedule (108.03.A)
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:
·
All
major items of work must be included in the schedule.
·
Completion
of the entire project must follow contract requirements.
·
Duration
of activities must be reasonable.
·
Sequence
of operations must be logical.
·
Schedule
must be arranged per plan phases if required.
·
Schedule
must include special provisions in the contract, including completion dates.
·
Special
material requirements of the plans must be included.
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.
·
Is
the project identified?
·
Does
the schedule graphically depict the work?
·
Is
there sufficient detail to truly describe the work?
·
Are
the sequences and activity durations reasonable?
·
Are
critical deliveries shown?
·
Is
there consideration for winter months?
·
Are
special ODOT requirements from plan notes or special provisions accounted for?
·
Does
the schedule fit within the duration allowed by contract?
·
Are
there clear relationships shown between activities?
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:
·
The
start of the project to detect if the Contractor began as scheduled.
·
Every
two weeks on larger more complex projects, monthly on smaller less complex
projects.
·
Following
the completion of a major item of work.
·
Following
the completion of a phase or sub-phase of work.
Before,
during, and after any type of delay to determine whether or not the delay was
owner caused, contractor caused, or concurrent.
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.
Determination
of a Time Extension (108.06)
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.
It
is more important than ever that the Contractor submit the request for a time
extension in the following time frame:
·
Requests
for an extension of time due to weather or seasonal conditions shall be
submitted in writing to the Engineer at the end of each month.
·
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.
Extensions
of time are processed as change orders by the District.
The
following procedures are to be used in the preparation and approval of a time
extension:
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.
Prepare
a Regular Work Change Order to postpone an interim completion date or a
contract completion date. The
“Explanation of Necessity” shall include one of the following statements:
1.
The
Contractor experienced an excusable, non-compensable delay due to weather as
determined in accordance with C&MS 108.06.C. The revised
(interim/contract) completion date is ______________.
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.
4.
The
Contractor submitted and the Department has accepted an Early Completion
Schedules in accordance with C&MS 108.02.B. The revised contract completion date is
______________.
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.
Once
the change order amending the interim/contract completion date has been
approved, the District Construction Office shall enter the amendment into
SiteManager.
The
following procedure shall be followed when a requested time extension is not
granted:
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.
The
methods of monitoring a progress schedule are as follows:
·
Percentage
of completion by dollars paid to the Contractor.
·
Examination
of actual start and finish dates of line items.
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
Delays (108.06.B) are those delays, which are
unforeseeable, beyond the control of the Contractor. Excusable Delays may be
either compensable or non-compensable.
Excusable/Compensable
(108.06.D) these are delays caused by
the owner. Examples include lack of site
access, late shop drawing approval, redesign, etc.
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.
Waiver
of Liquidated Damages (108.07)
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.
Certain
plan notes may require interim dates for phase completion and include special
liquidated damages. Different methods of bidding may include special 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.
This
standard procedure allows a waiver of all or portions of liquidated damages
that accrued after the work is substantially complete and the conditions in
C&MS 108.07 apply.
- The
District shall evaluate and process all requests for waiver of liquidated
damages within 30 days of receipt of the Contractor’s written request.
- Prepare
a Form C-122a for a waiver of liquidated damages. The remarks section shall include the
conditions in C&MS 108.07 that
apply.
- The
District Construction Office shall enter the waiver into SiteManager.
- Provide
the Contractor with a copy of the completed Form C-122a.
- Form
C-122a Waiver of Liquidated Damages
Termination
The
two types of project termination are as follows:
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 is explained in Section 108.08 of the
C&MS. The Director has the right to terminate the project for the following
reasons:
·
Contractor
abandons, fails, or refuses to complete work.
·
Improperly
performing the work.
·
Has
not commenced work in a reasonable time or does not make reasonable progress.
·
Contractor
goes out of business or files bankruptcy.
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.