108 PROSECUTION AND PROGRESS
108.01 Subletting
of the 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
“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.
108.02 Partnering. It is
the intent of the Department to partner every project. The purpose of
Partnering is to develop a proactive effort and spirit of trust, respect, and
cooperation among all stakeholders in a project. Partnering does not
affect the terms and conditions of the Contract. The Partnering process in this
section is Self-facilitated Partnering performed by the Project
personnel. Costs associated with the Self-facilitated Partnering process
are incidental to the Contract.
A. Preconstruction Meeting. Meet with the
Engineer for a Preconstruction Meeting before beginning the Work. At or before
the meeting, submit the initial progress schedule to the DCA.
Prepare the schedule according to 108.03.
Furnish a list of
proposed subcontractors and material suppliers at or before the Preconstruction
Meeting. If the Contractor fails to provide the required submissions at or
before the Preconstruction Meeting, the Engineer may order the meeting
suspended until they are furnished. Do not begin the Work until the meeting is
reconvened and concluded or the Engineer gives specific written permission to
proceed.
B. Initial Partnering Session. In
conjunction with the Engineer, determine whether the Initial Partnering Session
will be conducted as part of the Preconstruction Meeting or as a separate
meeting. Partnering shall have its own agenda with specific
time set aside to develop the necessary partnering protocols. Develop the
Partnering agenda with the Engineer.
Identify and invite
all stakeholders necessary to make the Project successful including utility
companies, other transportation entities (i.e., railroads), community leaders,
all Project participants including subcontractors.
During the Initial
Partnering Session, consider developing Partnering teams consisting of
Department and Contractor senior personnel and Project personnel.
Consider the following items for discussion:
1.
Identifying and developing a consensus on project goals consistent with the
contractual obligations, including specific goals concerning safety, quality,
schedule, and budget.
2.
Deciding how the teams will measure progress on Project goals.
3.
Identifying any potential risks to the Project’s success, mitigation strategies
and an implementation plan for the appropriate strategies.
4.
Defining key issues, project concerns, joint expectations, roles of key
partnership leaders, lines of decision making authority, and share relevant
information to help determine the scope of the Partnering efforts.
5.
Identifying any opportunities for project enhancement, enhancement strategies
and a specific action plan for implementing strategies.
6.
Developing a communication protocol to enhance communication on the Project
7.
Developing an issue identification and resolution process that identifies and
attempts to resolve issues at the level closest to the work. The issue
identification and resolution process will develop all the necessary steps for
issue elevation including Notice and Mitigation defined in 108.02.F and the Dispute Resolution and
Administrative Claims Process defined in 108.02.G.
C. Progress Meetings. Hold
monthly Progress Meetings unless the frequency is otherwise determined at the
Preconstruction Meeting. Coordinate with the Engineer to determine agenda
topics prior to each meeting. The purpose of Progress Meetings is to keep
open communication between the Contractor and the Engineer. The senior
personnel team is encouraged to participate in all Progress Meetings.
Include Partnering as an agenda item at the Progress Meetings.
D. Post-milestone Meeting. In
conjunction with the Engineer, determine whether the Post-milestone Meeting
will be conducted as part of the Progress Meeting or as a separate meeting for
multi-year, multi-phase, or projects with critical items of work or milestone
dates. Consider discussing and updating items from the Initial Partnering
Session in addition to items specific to the Project. All stakeholders
should be invited to attend.
E. Partnering Monitoring. Monitor
the progress of the Partnering relationship based on the goals decided during
the Initial Partnering Session. On-line surveys of Project participants
may be used to monitor progress on Project goals and help identify issues as
they arise. The on-line surveys are consistent with the
Department’s Partnering Project Rating Form which is located on the Division of
Construction Management’s Partnering website:
http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx
F. Mitigation and Notice.
Mitigation of any issue, 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 substitution of
materials. The Contractor and Engineer must explore and discuss potential
mitigation efforts in a timely manner.
1.
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.
2.
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.
If an issue is not
resolved through the initial mitigation efforts, either abandon or escalate to
the Dispute and Administrative Claims Process defined in 108.02.G.
G. Dispute Resolution and Administrative
Claims Process. Whenever an issue is elevated to a dispute, the parties
shall exhaust the Department’s Dispute Resolution and Administrative Claim
process as set forth below prior to 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.
Continue with all
Work, including that which is in dispute. The Department will continue to pay
for Work.
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 108.02.F.1 and 108.02.F.2.
This provision does not apply to adjustments provided in Table 104.02-2.
1.
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 108.02.F.2.
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.
2.
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 Construction Administrator and the Planning and
Engineering Administrator 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 Administrator (DCA).
The DCA 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:
a)
Submit three (3) complete copies of the documentation of the dispute to the DCA.
b)
Identify the Dispute on a cover page by county, project number, Contractor
name, subcontractor or supplier if involved in the dispute, and dispute number.
c)
Clearly identify each item for which additional compensation and/or time is
requested.
d)
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.
e)
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.
f)
Include the dollar amount of additional compensation and length of contract
time extension requested.
g)
Include supporting documents for the requested compensation stated in number
six (6) above.
h)
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.
i)
Include copies of relevant correspondence and other pertinent documents.
Within fourteen (14)
calendar days of receipt of the Contractor’s Dispute Documentation the DDRC will conduct the Step 2 meeting with Contractor
personnel who are authorized to resolve the dispute. 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.
3.
Step 3 (Director’s Claims Board Hearing or Alternative Dispute
Resolution). Submit a written Notice of Intent to File a Claim to the
Dispute Resolution 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 Dispute Resolution Coordinator receives the Notice of Intent to
File a Claim.
a)
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 Engineering and a District Construction Engineer from a
district not involved in the claim or designees. A representative from
the Division of Chief Legal Counsel and Equal Opportunity may be present to
observe the hearing. The Director or designee will be responsible for
deciding claims.
Submit six (6)
complete copies of the Claim Documentation to the Dispute Resolution
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 Dispute Resolution Coordinator.
In addition to the
documentation submitted at Step 2:
i.
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.
ii.
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 Dispute Resolution 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 108.02.G.4. The Dispute Resolution 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
Dispute Resolution 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:
i.
An overview of the project.
ii.
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.
iii.
The dates of the disputed work and the date of early notice.
iv.
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.
v.
Response to each argument set forth by the Contractor.
vi.
Any counterclaims, accompanied by supporting documentation, the District wishes
to assert.
vii.
Copies of relevant correspondence and other pertinent documents.
Within fourteen (14)
calendar days of receipt of the District’s Claim Documentation, the Dispute
Resolution 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
Dispute Resolution 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.
b)
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
then 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 Dispute
Resolution 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 Dispute
Resolution 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.
4.
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 Dispute Resolution
Coordinator's Receipt of the Certified Claim.
H.
Post Construction Meeting. The District will conduct a Post Construction
Meeting with the Contractor prior to the project finalization. The District
will invite the design agency and any other stakeholders deem necessary including
utility companies, other transportation entities (i.e. railroads), community
leaders, all Project participants including subcontractors performing critical
work to attend this meeting.
Consider the
following items for discussion:
1,
Project Safety.
2.
How were the goals evaluated or measured?
3.
How were foremen/ workers involved in the Partnering process?
4.
How were the subcontractors involved in the Partnering process?
5.
How were relationships with key stakeholders managed?
6.
Teambuilding activities or unique motivational activities.
I.
Partnering Close-Out Survey. Complete the final Partnering evaluation to
get participants’ feedback and improve the Partnering process. The
Partnering Close-Out Survey is located on the Division of Construction
Management’s Partnering website:
http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx
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.
A.
Progress Schedule.
1.
General. Furnish a bar chart progress schedule to the District
Construction Engineer for review at or before the Preconstruction
Meeting. 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. 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.
a.
Include the following Administrative Identifier Information:
(1)
Project Number
(2)
County
(3)
Route Number
(4)
FHWA Number
(5)
PID Number
(6)
Contract Number
(7)
Date of Contract
(8)
Completion Date
(9)
Contractor's Name
(10) Contractor's
Dated Signature
(11) ODOT's Dated Acceptance Signature
Provide a working day
schedule that shows the various activities of Work in sufficient detail to
demonstrate a reasonable and workable plan to complete the Project by the
Completion Date. Show the order and the sequence for accomplishing the
Work. Describe all activities in sufficient detail so that the Engineer
can readily identify the Work and measure the progress of each activity.
The bar chart schedule must reflect the scope of work, required phasing, maintenance of traffic requirements, interim completion
dates, the Completion Date, and other project milestones established in the
Contract Documents. Include activities for submittals, working and shop
drawing preparation, submittal review time for the Department, material
procurement and fabrication, and the delivery of materials, plant, and equipment,
and other similar activities. The schedule must be detailed on letter or
legal sized paper.
b.
Activity requirements are discussed in further detail as follows:
(1)
Activity Description. Assign each activity an unambiguous descriptive
word or phrase. For example, use "Excavate Area A," not
"Start Excavation."
(2)
Activity Original Duration. Indicate a planned duration in calendar days
for each activity. Do not exceed a duration of
20 working days for any activity unless approved by the Engineer. Do not
represent the maintenance of traffic, erosion control, and other similar items
as single activities extending to the Completion Date. Break these
Contract Items into component activities in order to meet the duration requirements
of this paragraph.
2.
Early Completion Schedule. An Early Completion Schedule is defined as a
baseline schedule or update schedule which anticipates completion of all work
prior to the Completion Date established by the contract documents and the
Contractor submits as an Early Completion Schedule. In the event that an
Early Completion Schedule is accepted, the Engineer will 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.
Updated Progress Schedule. Submit an updated progress schedule when
ordered by the Engineer. The Engineer may request an updated progress
schedule when progress on the work has fallen more than 14 calendar days behind
the latest accepted progress schedule. Information in the updated
schedule must include a "% work completed" value for each activity.
4.
Recovery Schedule. 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 will 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.
108.04 Limitation
of Operations.
Limit operations to prevent unnecessary inconvenience to the traveling
public. 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.
108.05 Character
of Workers Methods and Equipment. Provide
personnel with sufficient skills and experience to perform assigned tasks.
Ensure
that no debarred individuals listed on the Federal website: www.epls.gov
or State debarment list at the website: www.dot.state.oh.us/divisions/contractadmin/
act in any ownership, leadership, managerial, or other similar position that
could influence the operations of an entity doing business with the Department.
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.
108.06 Determining
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 and impacts the Completion Date.
The critical path is defined as; the longest path of activities in the project
that determines the project schedule completion date. The activities that
make-up the critical path of activities are the
“Critical Activities.” Any extension of the Completion Date will be
executed by a change order.
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 Engineer must explore and discuss potential
mitigation efforts in a timely manner.
The Department will
not evaluate a request for extension of the Completion Date unless the
Contractor notifies the Engineer as specified in 108.02.F.
Notification shall be in writing to the Engineer within 30 days following the
termination of the event giving rise to the request and shall be accompanied by
supporting analysis and documentation.
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.
The extended
Completion Date shall then have the same standing and effect as though it was
the original Completion Date.
If the Contractor
contends that an excusable delay is also compensable, as specified in 108.06.D, submit a detailed cost analysis of the
requested additional compensation along with the request for extension of
Completion Date.
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.
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 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 or Seasonal Conditions. A weather day is defined as a workday that weather or
seasonal conditions reduced production by more than 50 percent on items of work
on the critical path. Submit the dates and number of weather days in
writing to the Engineer at the end of each month. In the event the
Contractor fails to submit weather days at the end of each month the Engineer
will determine the dates and number of weather days from project
records.
Delays caused by
weather and seasonal conditions should be anticipated and will be considered as
the basis for an extension of time when the Contractor’s accepted progress
schedule depicts Work on the critical path and the actual workdays lost exceeds
the number of work days lost each month as determined by Table 108.06-1.
Month |
Number of Workdays Lost Due to Weather |
January |
8 |
February |
8 |
March |
7 |
April May June July August September October November December |
6 5 5 4 4 5 6 6 6 |
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.
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 for delays specified in 108.06.B.7 and 108.06.D.
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 when:
A.
The Work is substantially complete and the project is available for use as
intended by the contract.
B.
The Contractor is diligently pursuing the remaining Work.
C.
The Work remaining will not interfere with the intended use of the project and
will not impact traffic. For the limited purposes of assessing liquidate
damages, the closing of a shoulder is not considered an impact upon
traffic.
D.
All contract safety items are complete and operational. These safety items
include but are not limited to signs, pavement markings, guardrail,
attenuators, and signals. Raised pavement markers (RPM) are required safety
items if the roadway section involved had RPMs before
the project started.
E.
Deemed reasonable and appropriate by the District Deputy Director.
Table
108.07-1 SCHEDULE 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 |
$500 |
$500,000 |
$2,000,000 |
$1,000 |
$2,000,000 |
$10,000,000 |
$1,500 |
$10,000,000 |
$50,000,000 |
$2,600 |
Over $50,000,000 |
$3,200 |
108.08 Unsatisfactory
Progress and Default of Contractor. The Director will
notify the Contractor in writing of unsatisfactory progress for any of the
following reasons:
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. The defaulted
Contractor will not be compensated for costs resulting from the default and is
not eligible to be retained by the Surety to complete the Work. 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.