108 PROSECUTION AND PROGRESS

108.01 Subletting of the Contract. The Contractor shall 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 “its own organization” 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 Director’s 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 Contractor’s 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 Contractor’s percentage based on the quantities shown in the Proposal and the unit prices of the contract items to be performed by the Contractor’s 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 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.

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 Contractor fails to provide the required submissions at or before the preconstruction conference, the Engineer may 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.

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 Engineer will review the schedule and within 14 Calendar Days of receipt, will either accept the schedule or provide the Contractor with comments. Acceptance of 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. 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 Engineer accepts the revised schedule. The Engineer will use the schedule to evaluate time extensions and associated costs requested by the Contractor.

4. Schedule Measurement and Payment. The Engineer will not measure or pay for the preparation of the schedule and schedule updates directly, but the cost of preparing and updating the schedule is incidental to all contract items.

1. Scope and Purpose. The purpose of this subsection is to preserve the Contractor’s and subcontractors’ Bid Documents for use by the parties in the settlement of disputes and claims.

The Department will not use Escrow Documents to assess the Contractor’s or subcontractors’ qualifications for performing the Work. The Escrow Documents are, and will always remain, the property of the Contractor or subcontractors, subject to joint review by the Department and Contractor or subcontractors, as provided below.

Escrow Documents consist of one copy of all documents generated in preparation of the Proposal. This includes handwritten notes, records of phone conversations and phone quotes, letters, faxes, e-mails both printed and electronically archived, formal quotations, calculations, work sheets, conceptual progress schedules, marked up plan sheets, and any other paper or electronic record of how the Work was originally bid. These documents will be held in escrow for the duration of the Contract.

a. The accepted progress schedule shows an early completion of the Work more than 10 Calendar Days before the Completion Date and the Contractor has reserved the right to claim compensation for a delay in meeting the early completion. The Contractor may elect not to comply with the escrow requirement for an early completion; however, this will waive the Contractor’s rights to claim costs for a delay in meeting the projected early completion.

2. Submittal. Submit to the Administrator of the Office of Contracts, the required Escrow Documents in a sealed container containing only the Escrow Documents. Clearly mark the container with the Contractor’s and subcontractors’ name, date of submittal, project name and number, and the words “Escrow Documents.”

Failure to timely provide the required Escrow Documentation will be sufficient cause to default the Contractor according to 108.08. The Contractor and subcontractors are not permitted to perform Work until the required Escrow Documents are submitted. The Department will not grant a time extension for the period of time it takes the Contractor and subcontractors to submit the required Escrow Documents.

3. Stipulations and Acknowledgements. The Department stipulates and expressly acknowledges that the Escrow Documents constitute proprietary information. This acknowledgement is based on the Department’s expressed understanding that the information contained in the Escrow Documents is not known outside the Contractor’s or subcontractors’ business, is known only to a limited extent and by a limited number of the Contractor’s or subcontractors’ employees, and is safeguarded while in the Contractor’s or subcontractors’ possession. The Department further acknowledges that the Escrow Documents and the information they contain are provided for the joint use of the Contractor or the subcontractors and the Department.

The Contractor and subcontractors agree, as a requirement of the Contract, that the Escrow Documents constitute all the information used in the preparation of the Bid, and that no other Bid preparation information will be considered in the resolution of disputes and claims. The Contractor and subcontractors also agree that nothing in the Escrow Documentation shall change or modify the terms or conditions of the Contract Documents.

The Department further agrees to safeguard the Escrow Documents, and all information they contain, against disclosure to the fullest extent permitted by law.

4. Format and Contents. The Contractor and subcontractors may submit Escrow Documents in their usual cost estimating format. It is not the intention of this subsection to cause the Contractor to expend additional effort during Proposal preparation, but to ensure that the Escrow Documents are adequate to enable complete understanding and proper interpretation for their intended use.

Ensure that the Escrow Documents clearly itemize the estimated costs of performing the Work of each contract item in the Proposal. Separate contract items into such items necessary to present a complete and detailed estimate of all costs. Detail the plant, equipment, material, and indirect costs in the Contractor’s usual format. Ensure that the allocation of contingencies, mark ups, and other items are identified for each contract item.

Identify all elements of pricing developed solely based on experience or market factors, and for which a detailed cost estimate does not exist.

Identify all costs. For contract items amounting to less than $10,000, the Contractor may provide estimated costs without a detailed cost estimate.

Ensure that the Escrow Documents include all quantity take-offs, calculations of rates of production and progress, copies of quotes from subcontractors and suppliers, memoranda, narratives, add/deduct sheets, and all other information used by the Contractor to arrive at the prices contained in the Proposal.

5. Late Revisions. If the itemized cost breakdowns and allocations described elsewhere are not revised to reflect the final Bid prices, then submit information reconciling the Bid preparation documents and the Bid unit prices. Consider this reconciliation as a part of the Escrow Documents and include in the submittal.

6. Storage. The Department will acknowledge receipt of the Escrow Documents and place the Escrow Documents in an institution that is mutually agreed upon by both the Contractor and the Department for the life of the Contract. The Department will pay the cost of storage.

7. Examination. The Department, the Contractor, and when necessary, the applicable subcontractors will examine the Escrow Documents, at any time deemed necessary by either the Department or the Contractor, to assist in the negotiation of the settlement of disputes and claims; ensure that subcontractors are present if and when they are presenting a claim through the Contractor or when information is needed. The Contractor, applicable subcontractors, and the Department will be present to review the Escrowed Documents.

b. Access to the documents will take place only in the presence of authorized representatives from the Department, Contractor, and the applicable subcontractors.

c. The Contractor shall designate, in writing, the personnel from within the Contractor’s organization who are authorized to examine the Escrow Documents. Submit this designation with the Escrow Documents. The Director or the designees may examine the Escrowed Documents.

8. Final Disposition. The Department will return the Escrow Documents to the Contractor and subcontractors after completion of the Contract and after all disputes and claims have been settled.

108.03 Prosecution and Progress. Start the Work according to 108.02. Notify the Engineer at 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.

108.04 Limitation of Operations. Limit operations to prevent unnecessary inconvenience to the traveling pubic. If the Engineer concludes that the extent of the Contractor’s 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.

If the Engineer gives written notification that specific Contractor or 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 Engineer’s approval.

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

A. The Contractor does not furnish sufficient skilled and experienced personnel to complete the Project by the Completion Date.
B. The Contractor does 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 Engineer’s written approval before substituting alternate methods or equipment. To obtain the Engineer’s approval, submit a written description of the alternate methods and equipment proposed and an explanation of the reasons for making the change. The Engineer’s approval of the substitute methods and equipment does not relieve the Contractor of 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 Engineer’s authorization to substitute alternate methods and equipment will not change the basis of payment for the construction items involved or the Contract Time.

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 Contract Completion Date.

The Department will consider paying the Contractor delay costs according to 109.05.D for excusable, compensable delays from a projected finish date earlier than the Completion Date, if the finish date is realistic, more than 10 Calendar Days before the Completion Date, and supported by the Escrow Documents as indicated in 108.02.C.

The Department will not evaluate a request for extension of the Completion Date unless the Contractor notifies the Engineer as specified in 104.02.G and provides the required analysis as specified in 108.02.B.3. The Engineer will evaluate the Contractor’s 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 Engineer will not grant an extension of time for delays incurred from December 1 to April 30 unless the Contractor’s accepted progress schedule depicts work on the critical path occurring during this period.

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

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

The Department will relieve the Contractor from associated liquidated damages, as specified in 108.07, if the Engineer extends the Completion Date under 108.06.A.

B. Excusable, Non-Compensable Delays. Excusable, non-compensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility. The Engineer will not grant additional payment for 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 Contractor or its suppliers cannot foresee or avoid resulting from freight embargoes, government acts, or area-wide material shortages. Delays due to the Contractor’s, subcontractor’s, or supplier’s 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 Contractor’s, subcontractor’s, or supplier’s 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 Contractor’s and Department’s 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 Engineer at 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 Contractor’s accepted progress schedule depicts Work on the critical path occurring during the period from December 1 to April 30, then the Engineer will 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 Engineer will 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 Contractor normally 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 Contractor’s fault or responsibility, and are the Department’s fault or responsibility or are determined by judicial proceeding to be the Department’s sole responsibility or are the fault and responsibility of a local government. For the following excusable, compensable delays, the Engineer will 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.

Compensation for excusable, compensable delays will be determined by the Engineer according to 109.05.D.1 and 109.05.D.2. In addition, for Engineer-ordered suspensions as specified in 104.02.C, the Contractor will also be entitled to compensation for delay as specified in 109.05.D.3.

E. Non-Excusable Delays. Non-excusable delays are delays that are the Contractor’s 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 Contractor is entitled to additional time but not entitled to additional compensation.

108.07 Failure to Complete on Time. If the Contractor fails 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 Contractor to 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 Contractor to 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.

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	$500
$500,000	$2,000,000	$700
$2,000,000	$10,000,000	$1,250
Over 10,000,000		$2,000

A.     The Contractor has not commenced the Work by the dates established in the schedule.
B.      The Contractor does not proceed with the Work in a manner necessary for completion of the Project by the Completion Date.
C.     The Contractor is performing the Work improperly.
D.     The Contractor abandons, 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 Contractor does 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 Contractor’s 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 Department’s 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.

108.09 Termination of the 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 Contractor according 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.

108.10 Payroll 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.

108.11 Post Construction Meeting. Approximately 10 days after Final Inspection, the District and Contractor shall attend a post construction meeting. 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 project’s challenges and successes. The Engineer will write 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 Contractor’s C95 evaluation form and the Contractor feedback form. Conduct a partnering evaluation survey to help get participants’ feedback and improve the partnering process. (Sample evaluations are shown in the ODOT Partnering Handbook.)