SECTION 107 54 ALASKA 20 20 Contractor rent or purchase any equipment or materials from any employee of the Department or to the best of the Contractor’s knowledge from any agent of any employee of the Department. The Contractor shall execute and furnish the Department an affidavit certifying that the Contractor has complied with this section before final acceptance.
107-1.21 Federal Aff Irmative Action (Res Erved).
PROSECUTION AND PROG RESS
108-1.01 SUBCONTRACT ING OF CONTRACT. The Contractor shall submit a Contrac tor Self
Certificatio n for each Subcontractor and each Lower Tier Subcontractor, Form 25D -042, before the Contractor or any subcontractor subcontracts, sells, transfers, assigns, or otherwise disposes of the Contract or any portion of the Contract. The Department has authority to review subcontracts and to deny permission to subcontract work. The Department may penalize the Contractor for false statements or omissions made in connection with Form 25D -042. The Contractor shall perform, with the Contractor's own organization, work amounting to at least 30 percent of the difference between the original Contract price and the price of designated Specialty Items. For the purpose of this Subsection, work is defined as the dollar value of the services, equipment, m aterials, and manufactured products furnished under the Contract. The Engineer will determine the value of the subcontracts based on Contract unit prices or upon reasonable value, if entire items are not subcontracted. The Department’s consent to the subcontracting, sale, transfer, assignment, or disposal of all or a part of the Contract shall not relieve the Contractor and the Surety of responsibility for fulfillment of the Contract or for liability under the bonds regardless of the terms of the transfer or sublet approvals.
1.The Contractor shall ensure that for all subcontracts (agreements):
a.The Department is furnished with one completed Contractor Self Certification, Form 25D-042, for each subcontract.
b.The subcontractors have submitted a Bidder Registrati on, Form 25D -6.
c.The required prompt payment provisions of AS 36.90.210 are included in all subcontracts:
d.A clause is included requiring the Contractor to pay the subcontractor for satisfactory performance according to AS 36.90.210 and within eight working days after receiving payment from which the subcontractor is to be paid;
e.A clause is included requiring the Contractor to pay the subcontractor interest, according to AS 45.45.010(a), for the period beginning the day after the required payment date and ending on the day payment of the amount due is made:
f.A clause is included requiring the Contractor to pay the subcontractor all retainage due under the subcontract, within eight working days after final payment is received from the Department, or after the no tice period under AS 36.25.020(b) expires, whichever is later;
g.A clause is included requiring the Contractor to pay interest on retainage, according to AS 36.90.250 and AS 45.45.101(a):
h.Other required items listed in the Contractor Self Certification Form 25D-042, including but not limited to Form 25D -55H, are included in the su bcontracts; 55 ALASKA 2020 i. The subc ontractors pay current prevailing rate of wages as per Subsection 107- 1.04 and file signed and certified payrolls with the Engineer and DOLWD for all work perfor med on the project; and
j.Upon receipt of a request for more information regarding subcontracts, the requested information is provided to the Department within 5 calendar days.
2.The Contractor shall ensure that for all lower tier subcontracts (agreements betw een subcontractors and lower tier subcontractors):
a.The Department is furnished with one completed Contractor Self Certification, Form 25D - 042, for each lower tier subcontract;
b.The required prompt payment provisions of AS 36.90.210 are included in all lower tier subcontracts;
c.A clause is included requiring the subcontractor to pay the lower tier subcontractor for satisfactory performance according to AS 36.90.210, and within eight (8) working days after receiving payment from which the subcontractor is to be paid;
d.A clause is included requiring the subcontractor to pay the lower tier subcontractor interest, according to AS 45.45.010(a), for the period beginning the day after the required payment date and ending on the day payment of the amount due is made;
e.A clause is included requiring the subcontractor to pay the lower tier subcontractor all retainage due under the subcontract, within eight working days after final payment is received, or after the notice period under AS 36.25.020(b) expires, whichever is later;
f.A clause is included requiring the subcontractor to pay the lower tier subcontractor interest on retainage, according to AS 36.90.250 and AS 45.45.101(a);
g.Other required items listed in Form 25D -042, including but not limited to Form 25D -55H, are incl uded in the lower tier subc ontracts;
h.The lower tier subcontractors pay current prevailing rate of wages as per Subsection 107- 1.04 and fil e signed and certified payrolls with the Engineer and DOLWD for all work performed on the project; and
i.Upon receipt of a request for more information regarding lower tier subcontracts, the requested information is provided to the Department within 5 calendar days.
3.The following will be considered as subcontracting, unless performed by the Contractor:
a.Roadside Production. Roadside production of crushed stone, gravel, and other materials with portable or semi -portable crushing, screening, or washing plants set up or reopened in the vicinity of the project to supply materials for the project, including borrow pits used exclus ively or nearly exclusively for the project.
b.Temporary Plants . Production of aggregate mix, concrete mix, asphalt mix, other materials, or fabricated items from temporary batching plants, temporary mixing plants, or temporary factories that are set up or reopened in the vicinity of the project to supply materials exclusively or nearly exclusively for the project.
c.Hauling. Hauling from the project to roadside production, temporary plants, or commercial plants, from roadside production or temporary plants t o the project, from roadside production or temporary plants to commercial plants, and all other hauling not specifically excluded in this subsection. 56 ALASKA 20 20 d. Other Contractors . All other contractors working on the project site under contract with the Contractor are considered subcontractors unless specifically excluded in this subsection.
4.The following will not be considered as subcontracting, but the Contractor shall comply with the prompt payment provisions of AS 36.90:
a.Commercial Plants . The purchase of sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready -mixed concrete, asphalt paving mix, and any other material or fabrication produced at and furnished from established and recognized commercial plants that sell to both public and private purchasers.
b.Hauling. Delivery of materials from a commercial plant to a different commercial plant, and delivery from a commercial plant to the project site by vehicles owned and operated by the commercial plants or by commercial freight companies that have a contract with the commercial plant. Commercial freight companies are trucking or hauling companies that deliver multiple types of materials to multiple clients, both public and private, on an established route and on a recurrent basis.
c.Contractors ' General Business . Work within permanent home offices, branch plants, fabrication plants, tool yards, and other establishments that are part of a contractor's or subcontractor's general business operations.
5.Owner -Operators . Hauling of materials for the project by bona fide truck owner -operators who are listed as such on the signed and certified payroll of the Contractor or approved subcontractor is not considered subcontracting for purposes of AS 36.30.115. The Contractor shall ensure that the required pr ompt payment provisions of AS 36.90.210 are included in contracts with owner -operators. The Contractor shall collect and maintain at the project site current and valid copies of the following to prove that each trucker listed is a bona fide owner -operator :
a.Alaska Driver's License with appropriate CDL class and endorsements;
b.Business license for trucking with supporting documents that list the driver as the business owner or corporate officer; and,
c.Documents showing the driver's ownership interest in the tr uck, including copies of:
1.Truck registration; and
2.Lease (if truck is not registered in driver's name or in the name of the driver's company). The Contractor shall maintain legible copies of these records for a period of at least three years after final acc eptance of the project. Owner -operators must qualify as independent contractors under the current Alaska Department of Labor’s criteria. Owner -operators may be required to show:
d.The owner -operator’s right to control the manner in which the work is to be performed;
e.The owner -operator’s opportunity for profit or loss depending upon their managerial skill;
f.The owner -operator’s investment in equipment or materials required for their task, or the employment of helpers; 57 ALASKA 2020 g. Whether the service rendered requires a special skill;
h.The degree of permanence of the working relationship; and
i.Whether the service rendered is an integral part of the owner -operator’s business. The status of owner -operators is subject to evaluation throughout the project period. If the criteria for an independent contractor are not met, the Contractor shall submit amended payrolls listing the driver as an employee subject to all labor provisions of the Contract. The Contractor shall issue each owner -operator a placard in a form approved by the Engineer that identifies both the truck driver and the vehicle. The placard shall be prominently displayed on the vehicle so that it is visible to scale operators and inspectors. Notwithstanding the Department’s definitions of contracting and subcontracting, the Contractor shall be responsible for determining and complying with all federal and state laws and regulations regarding contracting, subcontracting, and payment of wages. The Contractor shall promptly pay any fines or penalties assessed for violations of those laws and regulations, and shall promptly comply with the directives of any government agency having jurisdiction over those matters.
108-1.02 NOTICE TO P ROCEED. The Department will issue a Notice to Proceed authorizing
construction to begin and i ndicating the date when Contract Time will begin. The Contractor shall not begin construction before the effective date of the Notice to Proceed. The Notice to Proceed may include limits or restrictions on allowable activities. The Department will, in its sole discretion, refuse to pay for construction begun before the effective date of the Notice to Proceed. The Contractor shall notify the Engineer at least 48 hours before construction begins at the project site.
108-1.03 PROSECUTION AND PROGRESS. The Contractor shall meet with the Engineer at the
regional construction office for a preconstruction conference before beginning construction. The Engineer will schedule the Preconstruction Conference no less than five days after the following have been received :
1.A progress schedule, in a format acceptable to the Engineer, showing the order in which the Contractor proposes to carry out the work and the contemplated dates on which the Contractor and the subcontractors will start and finish each of the salient features of the work, including any scheduled periods of shutdown. The schedule shall indicate the anticipated hours of operation and any anticipated periods of multiple- shift work.
2.A list showing anticipated dates for procurement of materials and equipment, ordering of articles of special manufacture, furnishing of plans, drawings and other data required under Subsection 105- 1.02 and for other events such as inspection of structural steel fabrication.
3.A list showing all proposed subcontractors and material suppliers.
4.A Construction Phasing plan, as required under Subsection 643- 1.05.
5.A Storm Water Pollution Prevention Plan, a Hazardous Material Control Plan, and a Spill Prevention Control and Countermeasure Plan, with the line of authority and designated field representatives, as required under Section 641 (see submittal deadlines under 641- 1.03).
6.A letter designating the Contractor's Project Superintendent, defining that person's responsibility and authority, and providing a specimen signature.
7.A letter design ating an Equal Employment Opportunity Officer and a Disadvantaged Business Enterprise Officer, and designating those person’s responsibilities and authority.
8.A Quality Control Plan, as required under Subsection 106- 1.03. 58 ALASKA 20 20 9. A letter designating a Safety Offi cer, and designating that person’s responsibilities and authority. The Contractor shall provide adequate materials, labor and equipment to ensure the completion of the project according to the Plans and Specifications. The work shall be performed as vigorously and as continuously as weather conditions or other interferences may permit. The Contractor shall take into consideration and make due allowances at the Contractor’s expense for foreseeable delays and interruptions to the work such as unfavorable weat her, frozen ground, equipment breakdowns, shipping delays, quantity overruns, utility work, permit restrictions, and other foreseeable delays and interruptions. The Contractor shall identify these allowances on the progress schedule. The Contractor shall adjust forces, equipment and work schedules as necessary to ensure completion of the work within the Contract time, and shall notify the Engineer at least 24 hours before resuming suspended operations. Upon a substantial change to the work schedule or when directed by the Engineer, the Contractor shall submit a revised progress schedule in the form required, including a written explanation for each revision made in the schedule or methods of operation. The Engineer's review or approval of the documents, pl ans, and schedules provided by the Contractor under this section shall not change the Contract requirements, release the Contractor of the responsibility for successful completion of the work or relieve the Contractor of the duty to comply with applicable laws. The Engineer’s review or approval of schedules shall not indicate agreement with any assertions of delay or claims by the Contractor. It is the Contractor's responsibility to prepare and submit documents that satisfy all applicable contract requirements. By reviewing and approving the Contractor’s documents, the Department does not warrant that following the Contractor’s documents will result in successful performance of the work. The Department's failure to discover defects in the Contractor's docum ents, the assumptions upon which they are based or conditions that prevent the Contractor from performing the work as indicated in the documents will not entitle the Contractor to additional compensation or time. If the Contractor becomes aware of any act or occurrence that may form the basis of a claim for additional compensation or an extension of time, it must specifically advise the Engineer of these conditions in accordance with Subsection 105- 1.17.
108-1.04 LIMITATION OF OPERATIONS. The Contractor sha ll not open up work to the
detriment of work already started. The Contractor shall minimize interference with traffic within the project. The Contractor shall not stop or otherwise impede traffic outside the project limits without the Engineer's prior wri tten permission. The Engineer may require the Contractor to finish a section of work in progress before starting additional sections if the Engineer determines it is necessary for the convenience of the public or the Department.
108-1.05 CHARACTER O F WORKERS, METHODS, AND EQ UIPMENT. The Contractor shall
employ sufficient labor and equipment to complete the work required under the Contract and to complete it on time. The Contractor shall ensure that all workers on the project have the skills and experienc e necessary to properly perform their assigned work. Workers engaged in special work or skilled work shall have sufficient experience in that work and in the operation of the equipment required to properly perform that work. The Contractor shall comply wit h any written order by the Engineer to remove workers, who, in the opinion of the Engineer, perform the work in an unskilled manner, who are intemperate or disorderly, create risk of imminent harm for the traveling public, or who fail to perform the work i n accordance with the Contract and any and all applicable federal, state, and local laws, rules, regulations, and ordinances. The Contractor shall allow removed workers to return to the project 59 ALASKA 2020 only with the Engineer’s written permission. The Engineer may suspend the work if the Contractor fails to furnish suitable and sufficient personnel necessary to perform the work, or fails to remove any worker at the Engineer's order. The Contractor shall not use prisoner labor on the project. The Contractor shall use equipment of the appropriate size and mechanical condition to produce the specified quality and quantity of work by the means specified in the Contract, if any, and shall ensure that the equipment does not damage roadways or property. The Contractor shall ensure all equipment, materials, and articles incorporated into the work are new and of the specified quality, unless the Contract specifically permits otherwise. The Contractor shall provide the Engineer with a list of all powered equipment that will be used on the project, showing the make, model, year, capacity, horsepower, and related information. The Contractor shall update this list when equipment is added or removed from the work site, but need not update more frequently than weekly. When the met hods and equipment to be used by the Contractor are not prescribed by the contract, the Contractor is free to use any method, means or equipment that is satisfactory to produce the specified work in conformity with the Contract, except as provided above. At the request of the Engineer, the Contractor shall demonstrate that the method, means and equipment chosen will produce the work specified in the Contract in the time allowed under the Contract. The Contractor shall bear all costs and impacts associated with any means, methods and equipment chosen by the Contractor. No suggestion, statement or observation from the Engineer or other Department representatives shall alter this responsibility. If the Contract specifies a particular method, means or type of equipment for performance of the work, the Contractor must use that method, means or equipment unless the Contractor first requests, in writing, permission to alter the Contract requirement and receives prior written approval from the Engineer.
108-1.06 C Ontract Time, Extension of Contract Time and Suspension of
WORK. Contract time will be specified in calendar days, by completion date, or both.
1.Calendar Days . When the contract time is specified on a calendar days basis, all work under the Contract shall be completed within the number of calendar days specified. If no starting day is specified in the Contract, the count of Contract time begins on the day following receipt of the Notice to Proceed by the Contractor. Calendar days shall continue to be counte d against Contract time until and including the date of project completion. Calendar days shall not be counted during the period from November 1 through April 30, except for days that the Contractor is working on the project site.
2.Completion Date. When the contract time is specified on a completion date basis, all work under the Contract shall be completed by the specified completion date.
3.Reasons for Suspension of Work and Extension of Contract Time. The Department may order a suspension of work for any re ason listed in this subparagraph 3, items a through p. The Department shall not pay additional compensation, but may extend Contract time only, if there are delays in the completion of controlling items of work from unforeseeable causes that are beyond the Contractor's control and are not the result of the Contractor's fault or negligence, including:
a.Acts of God;
b.Acts of the public enemy; 60 ALASKA 20 20 c. Fires;
d.Floods;
e.Epidemics;
f.Quarantine restrictions;
g.Strikes;
h.Freight embargoes;
i.Unusually severe weather;
j.In accordance w ith Subsection 105- 1.06.4.d, delays by utility owners beyond completion dates specified in the Special Provisions for relocating or adjusting utilities and related facilities; or
k.Delays of subcontractors, suppliers and fabricators from unforeseeable causes beyond the control of the subcontractors, suppliers or fabricators and that are not the fault of the subcontractors, suppliers or fabricators, including those causes listed in this Subparagraph 3, Items a through j. No additional Contract time or additional compensation will be allowed due to delays caused by or suspensions ordered due to:
l.Failure to correct conditions that create risk of imminent harm for the traveling public, violations of the Contract or any applicable federal, state, and local laws, rules, regulations, and ordinances;
m.Adverse weather that is not unusually severe;
n.Failure to carry out Contract provisions;
o.Failure to carry out orders given by the Engineer; or
p.Failure to timely obtain materials, equipment, or services. The Contractor shall notify the Engineer as soon as the Contractor becomes aware of any act or occurrence that may form the basis of a request for a time extension under this section. The Contractor shall submit a request for a time extension to the Engineer within 10 days of the act or occurrence, and if an agreement is not reached, the Contractor may submit a Claim under Subsection 105- 1.17. The time allowed in the Contract, as awarded, is based on performing the original estimated quantities of work set out in the bid sched ule. An assertion that insufficient time was originally specified shall not constitute a valid reason for extension of contract time. If satisfactory fulfillment of the Contract requires extra work, the Department may extend Contract time according to Subsection 104- 1.02.
4.Suspension of Work. The Engineer will suspend work on the project, in whole or in part, for such periods and for such reasons as the Engineer determines to be reasonable, necessary, in the public interest, or for the convenience of the Department.
a.The Engineer will issue a written order to suspend, delay, or interrupt all or any part of the work. The Contractor shall not be compensated for the suspension, delay, or interruption if it is imposed for a reasonable time under the circumstances. 61 ALASKA 2020 b. Unless another Contract section specifically provides otherwise, the Contractor will be compensated by equitable adjustment for a suspension, delay, or interruption of the work only if:
1.The period of suspension, delay, or interruption is for an unreasonable time under the circumstances and another Contract section allows compensation in the event of a suspension, delay, or interruption of the work under the circumstances that actually caused the suspension, delay, or interruption; or
2.The delay, suspension, or interruption results from the Department’s failure to fulfill a contractual obligation to the Contractor within the time period specified in the Contract or, if no time period is specified, within a reasonable time.
c.No equitable adjustment will be made under this subsection for any suspension, delay, or interruption of the work if the Contractor's performance would have been suspended, delayed, or interrupted by any other cause for which:
1.The Department is not responsible under the Contract, including the Contractor's fault or negligence; or
2.An equitable adjustment is either provided for or excluded under any other section of this Contract.
d.Claims for equitable adjustments under this section shall be filed under Subsection 105- 1.17 except that:
1.The Contractor must give written notice of intent to claim no later than 20 days after the event giving rise to the delay, suspension, or interruption;
2.The claim may not include any costs incurred more than 20 days before the Contractor files the Contractor 's written notice of intent to claim;
3.The contractor must submit a written request for adjustment within 7 calendar days of receipt of the notice to resume work ;
4.No profit will be allowed on an increase in cost necessarily caused by the suspension, delay, or interruption.
108-1.07 FAILURE TO COMPLETE ON TIME. For each calendar day that the work is not
substantially complete after the expiration of the Contract time or the completion date has passed, the Engineer shall deduct the full daily charge corresponding to the original Contract amount shown in Table 108- 1 from progress payments. For each calendar day that the work is substantially complete but the project is not complete, after the expiration of the Contract time or the completion date has passed, the Engineer shal l deduct 20 percent of the daily charge corresponding to the original Contract amount shown in Table 108- 1 from progress payments. If no money is due the Contractor, the Department may recover these sums from the Contractor, from the Surety, or from both. These are liquidated damages and not penalties. These charges shall reimburse the Department for its additional administrative expenses incurred due to the Contractor's failure to complete the work within the time specified. 62 ALASKA 20 20 TABLE 108 -1 DAILY CHARGE FOR LIQUIDATED DAMAGES FOR EACH CALENDAR DA Y OF DELAY Permitting the Contractor to continue work after the Contract time has elapsed or the completion date has passed does not waive the Department’s rights to collect liquidated damages under this section.
108-1.08 DEFAULT OF CONTRACT. The Contracting Officer will give a written Notice of
Default to the Contractor and the Surety if the Contractor:
1.Fails to begin work under the Contract within the time specified;
2.Fails to perform the work with sufficient workers, equipment, or materials to ensure the prompt completion of the work;
3.Performs the work unsuitably or neglects or refuses to remove materials or to replace rejected work;
4.Discontinues the prosecution of the work;
5.Fails to resume work that has been discontinued within a reasonable time after notice to do so;
6.Becomes insolvent except that if the Contractor declares bankruptcy, termination shall be in accordance with the Federal Bankruptcy Code. In the event that the Contractor declares bankruptcy, the Contract or agrees that the Contract will be assumed by the Surety in a timely manner so as to complete the Contract by the date specified in the Contract;
7.Allows any final judgment to stand against the Contractor unsatisfied for a period of 60 days;
8.Makes an assignment for the benefit of creditors, without the consent of the Engineer;
9.Fails to comply with applicable minimum wage or civil rights requirements;
10.Is a party to fraud, deceit, misrepresentation, or malfeasance in connection with the Contract; or
11.Fails to perform the work in an acceptable manner for any other cause whatsoever. The written Notice of Default will include a notice to cure and will establish a date by which the cure must be completed. The Contracting Officer may allow more time to cure than originally stated in the Notice to Default if the Contracting Officer deems it to be in the best interests of the Department. Failure to cure the delay, neglect, or default within the time specified in the Contracting Officer’s Notice of Default authorizes the Department to terminate Original Contract Amount Daily Charge From More Than To and Including $ 0 $ 100,000 $ 300 100,000 500,000 550 500,000 1,000,000 750 1,000,000 2,000,000 1,000 2,000,000 5,000,000 1,500 5,000,000 10,000,000 2,500 10,000,000 -------------- 3,000 63 ALASKA 2020 the contract. The Department will provide the Contractor and the Contractor's Surety with a written Notice of Termination. After the Notice of Termination is issued, the Department may take over the work without further notice; may complete it by itself, by contract or otherwise; and may take possession of and use materials, appliances, equipment, or plant on the work site necessary for completing the work. The Department may transfer the obligation to perform the work from the Contractor to the Surety. In that event, the Surety shall submit its plan for completion of the work, including any contracts or agreements with third parties for completion, to the Department for approval before beginning work. The Surety must follow the Contract requirements for approval of subcontracts, except that the limitation on percent of work subcontracted will not apply. On receipt of the transfer notice, the Surety shall take possession of all materials, tools, equipment, and appliances at the work site, employ an appropriate work force, and complete the Contract work as specified. The Contract specifications and requirements shall remain in effect, except that the Department will make subsequent Contract payments directly to the Surety. The Contr actor forfeits any right to claim for the work and is not entitled to receive any further balance of the amount to be paid under the Contract. The Contractor and the Contractor's Surety are jointly and severally liable for any damage to the Department resulting from the Contractor's delay, neglect, or default, whether or not the Department terminates the Contractor's right to prosecute the work. The Department's damages include any increased costs incurred by the Department in completing the work or paying for the work to be completed. The Department's rights and remedies are in addition to any other rights and remedies provided by law or under the Contract. If, after notice of termination of the Contractor's right to proceed under this clause, it is determ ined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties will be determined under Subsection 108- 1.09, Termination for Convenience.
108-1.09 Termination for Convenience.
1.Notice . The Contracti ng Officer may terminate the Contract in whole or in part due to:
a.Executive Orders of the President of the United States or the Governor of the State of Alaska with respect to the prosecution of war or the interest of national defense, or any disaster decl aration.
b.Restraining orders or injunctions by a court of competent jurisdiction affecting prosecution of the work based on acts or omissions of persons or agencies other than the Contractor.
c.Any reason determined by the Contracting Officer to be in the bes t interest of the Department. The Contracting Officer will issue a written Notice of Termination to the Contractor. The Notice of Termination shall state the extent to which performance of work under the Contract is terminated, the effective date of the termination, and for which of the above- listed reasons the Contract is terminated.
2.Required Actions . Unless otherwise directed by the Contracting Officer, upon receipt of a Notice of Termination the Contractor shall immediately:
a.Stop work as directed in th e Notice. 64 ALASKA 20 20 b. Place no further orders or subcontracts for materials, services, or facilities except as approved to complete work not terminated.
c.Terminate all orders and subcontracts for the terminated work.
d.Accomplish either (1) or (2) below as directed by the Contracting Officer:
1.Assign to the Department all right, title and interest in any terminated orders or subcontracts. The Contracting Officer will settle all claims on the terminated orders or subcontracts.
2.Settle any outstanding liabilities and claims arising from termination of orders and subcontracts. Settlements must be limited to costs allowed under this Section.
e.Submit to the Contracting Officer a list, certified as to quantity and quality, of all materials acquired or produced for incorporation into the project and that are properly allocable to the terminated portion of the project, exclusive of items disposed of under Subsection 108- 1.09.2.f., below.
f.Dispose of materials in the Contractor’s possession or control that were acquired or produced but not incorporated into the project as of the termination date as directed by the Contracting Officer under either (1) or (2) below:
1.Transfer title and deliver the materials to the Department. The Department will pay for the materials at the actual cost del ivered to the project or storage site, including transportation charges, to which cost 15 percent will be added.
2.Sell the materials. Credit will not have to be extended to prospective purchasers. The Contractor may acquire the materials if the Contracting Officer approves the sale price and the Contractor meets any other conditions prescribed by the Contracting Officer. At the sole discretion of the Contracting Officer, the proceeds of any sale, transfer, or disposition of materials may be:
3.applied to reduc e any payments to be made by the Department under the Contract,
4.credited to the cost of the work, or
5.paid in any other manner as directed.
g.Deliver to the Department completed or partially completed plans, drawings, information, and other property required to be furnished under the Contract.
h.Take all necessary actions and comply with all directives to protect contract -related property in which the Department has or may acquire an interest.
i.Complete work not terminated. The Contractor shall proceed immediatel y with performance of the above obligations notwithstanding any delay in determining or adjusting the amount of any item or reimbursable cost under this clause.
3.Claim . The Contractor shall submit any termination claim to the Contracting Officer within 90 days after the effective date of termination, unless the date for submitting a claim is extended in writing by the Contracting Officer. 65 ALASKA 2020 a. Without duplication of any amount paid for under Subsection 108- 1.09.2., the claim may be for the total of:
1.costs incurre d in performing the terminated work from the date of Contract award to the effective date of the termination subject to the provisions of Subsection
108-1.09 3.b. regarding reimbursement of equipment costs and Subsection 108-
1.09.3.c. regarding unallowable items.
2.payments approved by the Contracting Officer under Subsection 108- 1.09.2.d.(2) to settle the termination claims of suppliers and subcontractors to the extent not covered under Subsection 108- 1.09.3.a.(1).
3.reasonably incurred costs for:
a.accounti ng, legal, clerical, and other costs reasonably necessary for preparation of the termination claim and settlement negotiations, excluding costs incurred after the date an appeal is filed with the Appeals Officer under Subsection 108- 1.09.8.
b.settling subcontractor and supplier claims, excluding the amounts of those settlements paid under Subsection 108- 1.09.3.a.(2).
4.reasonable profit on the costs included in Subsection 108- 1.09.3.a(1) based on the Contractor’s bid rate for profit or as determined under any other reasonable accounting method. However, if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, the Contracting Officer will allow no profit and will reduce the settlement to reflect the indicated rate of loss under Subsection 108- 1.09.4. The Department will not pay profit on costs included in Subsections 108- 1.09.3.a.(2) and 108- 1.09.3.a.(3).
b.Equipment claims will be reimbursed as follows:
1.Contractor -owned equipment usage, based on the Contractor’ s ownership and operating costs for each piece of equipment as determined from the Contractor’s accounting records. Do not base equipment claims on published rental rates.
2.Idle time for Contractor -owned equipment, based on the Contractor’s internal ownersh ip and depreciation costs. Idle equipment time is limited to the actual period of time equipment is idle as a direct result of the termination, not to exceed 30 days. Operating expenses will not be included for payment of idle equipment time.
3.Rented equipm ent, based on reasonable, actual rental costs. Equipment leased under “capital leases” as defined in Financial Accounting Standard No. 13 will be considered Contractor -owned equipment. Equipment leased from an affiliate, division, subsidiary or other organization under common control with the Contractor will be considered Contractor -owned equipment.
c.The following costs are not payable under a termination settlement agreement or Contracting Officer’s determination of the termination claim, or on appeal:
1.Anticipated profits on work that is not performed prior to issuance of the Notice of Termination or any consequential or compensatory damages
2.Unabsorbed home office overhead (also termed “General & Administrative Expense”) related to ongoing business operations
3.Bidding and project investigative costs 66 ALASKA 20 20 (4) Direct costs of repairing equipment to render it operable for use on the terminated work
4.Adjustment for Loss . If the Contractor would have sustained a loss on the entire Contract had it been completed, the Department will not pay the Contractor more than the total of:
a.The amount due for termination claim costs under Subsection 108- 1.09.3.a.(3); plus
b.The remainder of the total allowable claim amount due reduced by multiplying the remainder by the ratio of (1) the tot al contract price to (2) the remainder plus the estimated cost to complete the entire Contract; minus
c.All disposal and other credits, all advance and progress payments and all other amounts previously paid under the Contract.
5.Deductions . In arriving at the amount due under this Subsection, the Department will deduct:
a.All previous payments made before termination;
b.Any claim which the Department may have against the Contractor;
c.The proceeds of the sale or transfer of any materials, supplies, or other items acquired for the terminated work and not otherwise recovered by or credited to the Department;
d.All partial payments made under this Section; and
e.Any adjustment for loss determined under Subsection 108- 1.09.4.
6.Agreed Settlement . The Contractor shall make ever y effort to arrive at a claim settlement with the Contracting Officer that is fair to both parties, that reflects the reasonable and allocable incurred costs allowable under Subsection 108- 1.09.3, that includes a profit under Subsection 108- 1.09.3.a.(4) or , where appropriate, a loss adjustment under Subsection 108- 1.09.4, and that takes into account the Contractor’s reasonable business judgment in performing the work. The total settlement, whether determined under this Subsection 108- 1.09.6 or under Subsect ion 108- 1.09.7, exclusive of the costs listed in Subsection 108- 1.09.3.a.(3), may not exceed the total contract price as reduced by previous payments made and the contract price of work not terminated. If an agreement is reached in whole or in part, the Department will amend the contract and will pay the agreed amount.
7.Determined Settlement . If the Contractor fails to submit a termination claim within the time allowed, or if an agreement is not reached on the amount due, the Contracting Officer may determine in a Contracting Officer’s Decision, the amount due under Subsection 108- 1.09 on the basis of information available to the Department.
8.Right of Appeal . The Contractor may appeal a Contracting Officer’s Decision within the time and in the manner specified in Subsection 105- 1.17.
9.Partial Payments . In the sole discretion of the Contracting Officer, the Department may make partial payments against costs incurred by the Contractor in connection with the terminated portion of the Contract. The sum of these par tial payments will not exceed the Contracting Officer’s estimate of the total amount that will be due as a result of the 67 ALASKA 2020 termination. The estimate will be based on available information. The Contracting Officer may adjust the estimate as additional information becomes available. If the Contracting Officer orders an audit of the Contractor’s financial or project records, the Contracting Officer may decline to make partial payments until the audit is completed.
10.No Waiver of Rights . The termination of work by the Department does not affect or extinguish any of the rights of the Department against the Contractor or the Contractor’s Surety then existing or which may thereafter accrue. Any retention or payment of monies by the Department due under the terms of the Contract will not release the Contractor or the Contractor’s Surety from the contractual obligations or warranties made under Subsection 107- 1.19 or elsewhere in the Contract.
11.Retaining Records . The Contractor shall unless otherwise provided for in the Co ntract or by applicable statute, keep all books, records, documents, and other evidence bearing on the Contractor’s cost and expenses under the Contract and relating to the work terminated for a period of 3 years after final settlement under this Contract. Records must be made available to the Department at the Contractor’s office and at all reasonable times.
12.Definitions . In this Subsection 108- 1.09, the term “cost” and the term “expense” mean a monetary amount in U.S. Dollars actually incurred by the Contr actor, actually reflected in the Contractor’s contemporaneously maintained accounting or other financial records and supported by original source documentation.
13.Cost Principles . The Department may use the federal cost principles at 48 CFR §§ 31.201- 1 to 31.205- 52 (or succeeding cost principles for fixed price contracts) as guidelines in determining allowable costs under this Subsection to the extent they are applicable to highway construction contracts and consistent with the specifications of this Contract . The provisions of this contract control where they are more restrictive than, or inconsistent with, these federal cost principles. 68 ALASKA 2020 SECTION 109 MEASUREMENT AND PAYM ENT
109-1.01 GENERAL. Wherever the Contract provides that certain work is subsidiary or i t is
without extra compensation, the payment for that work is included in the payment for other items of work, and no further or additional payment shall be made for that work. When more than one type of material or work is specified for a pay item, the proposal line number, the item number, and the item description are used to differentiate the material or work . Lump sum items will not be measured for payment. The Contractor shall accept the bid amount for a lump sum item as complete payment for all work necessary to complete that item. Quantities shown for lump sum items are approximate. No adjustment in the lump sum price will be made if the quantity furnished is more or less than the estimated quantity unless the Contract specifically states otherwise.
109-1.02 MEASUREMENT OF QUANTITIES. All work completed under the Contract will be
measured using the U.S. Customary system of measure. The Engineer may agree for purposes of making progress payments to use a method of measurement other than the methods described below. However, all final payments for quantities will be calculated using one or more of the methods of measurement described below and in the applicable pay item section. Unless otherwise specified, work will be measured as follows:
1.Acre (43,56 0 ft2). Horizontally, unless specified on the ground surface. No deductions will be made for individual fixtures with an area of 500 ft2 or less.
2.Contingent Sum . Measured as specified in the Contract or Directive authorizing the work. The method of payment may include: (1) a lump sum basis, (2) a price multiplied by the units of work performed, (3) a pay adjustment based on the quality of work, or (4) a deduction from the contract amount.
3.Cubic Yard (yd3). At the location specified using method a, below. Methods b through e may be used with written approval of the Engineer.
a.Average End Area. End area is the calculated area between original ground cross section and either the design cross section or at the Engineer’s discretion the final cross section. Volum e of material is calculated using the average of end areas multiplied by the distance along centerline between end areas. In extreme cases where most of the earthwork lies along a single horizontal curve the Engineer may compute volume using the average of end areas multiplied by the distance along centroid of cross section between end areas.
b.Three- Dimensional . Where it is impractical to measure material by cross sectioning due to erratic location of isolated deposits, acceptable methods involving three- dimensional measurements may be used.
c.Neat Line. Structures will be measured according to neat lines shown on the Plans or as altered to fit field conditions.
d.Nominal . Volume calculated as nominal width times nominal thickness times the average length of each piece.
e.Weight . With the Engineer’s written approval, material that is specified to be measured by volume may be weighed and converted to volume for payment purposes. The Engineer will determine the appropriate conversion factors. When liquid asphalt is a pay item, ASTM D4311 will be used to convert from weight to volume at 60 °F.
Source: Alaska Standard Specifications for Highway Construction, 2020 Edition. Pages 82–95 of 584.