110.03 Record Keeping.
Should the Contractor fail to sign and return the voucher within t he 30 days, he will be declared in default in accordance with Paragraph 5 of Article 108.12. Upon receipt of the signed final estimate voucher or default action taken per Paragraph 5 of Article 108.12, the Department will issue a warrant in the amount due the Contractor. The final warrant will be issued to the Surety in cases where the Contractor is placed in default under Article 108.12 and the contract is placed in the hands of the Surety. By agreement it is hereby stipulated that the Contractor and the S urety are forever barred and estopped from any recovery of claims whatsoever against the Department under the terms of the contract.
110.01 General.
When filing a claim, the Contractor shall follow the procedures set forth in this Sect ion. Any claims by a Subcontractor must be submitted to the Contractor. The Contractor may then submit the Subcontractor’s claim on their behalf following the same procedures, or otherwise choose to accept full responsibility for the Subcontractor’s claim and any associated costs, delays, or impacts to the project.
110.02 Notice of Intent.
In any case where the Contractor deems that extra compensation is due him for additional cost not clearly covered in his contract and not ordered by the Engineer as extra work as defined herein, the Contractor shall notify the Construction Bureau in writin g, with copy to the Project Manager, of his intention to make claim for such extra compensation. The written notice of intent to file a claim shall be furnished to the Engineer prior to the time the contested work is started. Oral notification by the Contr actor and confirmed in writing by the Contractor within three calendar days, will be accepted as complying with this requirement. Electronic submission of said notification will be accepted. The written notice of intent to file a claim shall set forth the reasons the Contractor believes additional compensation will be due, the nature of cost involved and insofar as possible the total amount of the claim. The Contractor hereby agrees to waive any claim for additional compensation if notification, as provided in the foregoing, is not furnished or the Engineer is not provided facilities by the Contractor for keeping account of actual costs. Such notice by the Contractor, and the fact that the Engineer has kept account of the cost as aforesaid, is not evidence o f the validity of the claim. A separate determination of the validity of the claim will be made by the ALDOT. If the Contractor decides to rescind the notice of intent and voluntarily waive any claim for additional compensation, he shall notify the Constr uction Bureau in writing, with copy to the Project Manager. The Contractor hereby agrees to rescind the notice of intent and waive any claim for additional compensation if he accepts any alternate resolution outside the claims process, in whole or in part, such as a time extension or supplemental agreement. A copy of said alternate resolution should be sent to the Construction Bureau to formally close the claim file.
110.03 Record Keeping.
After giving the ALDOT a notice of int ent to file a claim, the Contractor shall keep daily records of all costs incurred for affected operations. These daily records shall identify each operation affected, quantities of any additional work performed, the specific locations where work is affect ed, and the potential effect to the project’s schedule such as days of delay or changes in production rates . Additionally, these records shall include details of all labor, material, and equipment applicable to affected operations. On Monday, or the first work day, of each week following the date of the notice of intent to file a claim, the Contractor shall provide the ALDOT’s Project Manager with the daily reco rds for the preceding week. The ALDOT’s Project Manager will also keep separate records for the purpose of verifying the Contractor’s records. If the Contractor's records indicate costs greater than those kept by the ALDOT, the ALDOT will notify the Contra ctor of any discrepancies . The Contractor shall have the opportunity to provide additional documentation regarding said discrepancies
110.04 Claims Process.
Refusal or failure by the Contractor to present his records shall constitute a waiver by the Contractor of his claim. To protect the integrity of the independent records maintained by ALDOT for comparison with those submitted by the Contractor , ALDOT records will not be made available to the Contractor until after ALDOT’S receipt of the Contractor’s complete records documenti ng the claim . ALDOT will retain possession of the records and provide copying facilities with the Contractor reimbursing the ALDOT for the expense of the copying. No amendment to the claim shall be made following receipt of the ALDOT’s records.
110.04 Cla ims Process.
a.General. After the work has been completed on the disputed item(s) of work and/or the period of delay or impact has concluded, the Project Manager will affirm in writing to the Construction Bureau, with copy to the Contractor, the end date of the claim period. The Contractor shall have 90 calendar days from the claim end date to submit his claim documentation to the Construction Bureau. Any claim not submitted within this 90 calendar day period is waived. The Contractor shall submit either an electronic copy of the claim to the Construction Bureau, with copy to the Project Manager, or seven hard copies (one of which shall be unbound for duplication purposes) to the Construction Bureau and two hard copies to the Project Manager. The claim sha ll contain the required daily records listed in Article 110.03 plus any applicable supporting documentation in accordance with Subarticle 109.04(b). Once the claim is received the Area will submit to the Construction Bureau a copy of their records and reco mmendation regarding the Contractor’s claim. The review of the claim will be made by the Construction Bureau and a written response or request for additional information will be sent to the Contractor within 90 calendar days. If the Contractor does not agr ee with the claim review, he may send a written request to make a presentation to the Claims Committee by certified mail to the Construction Bureau within 30 calendar days from the date of the ALDOT’s claim review. Failure to make the request within the required time period shall constitute the Contractor’s acceptance of the claim review and waiver of the right to a review by the Claims Committee.
b.Claims Committee. The Claims Committee will be composed of five ALDOT employees wh ose position is that of an assistant bureau chief or higher, and who were not involved in the design or construction of the project. For Federal Aid projects, the FHWA will be invited to send an observer. The ALDOT will notify the Contractor in writing of the date and location of the presentation. The Contractor may make request to the Construction Bureau to reschedule the presentation. Said request must be received at least one week prior to the scheduled date. If the claim was submitted on behalf of a Sub contractor, both the Contractor and the Subcontractor must have a representative in attendance at the presentation. Issues not specifically presented in the claim package acted upon by the Construction Bureau and the Area are not subject to consideration b y the Claims Committee. Following the presentation, the Claims Committee will provide a written recommendation to the Director. The Claims Committee's recommendation may be accepted, modified or denied by the Director. If accepted, the Director's decision shall be final, non -appealable, and not subject to judicial or other review except as provided in these Specifications. If the Contractor does not accept the decision of the Director, he may send a written request to make a presentation to the Claims Appea l Board. This request shall be made in accordance with Item 110.04(c)2. below. Failure to make the request within the required time period shall constitute the Contractor’s acceptance of the Director’s decision and waiver of the right to a review by the Cl aims Appeal Board.
c.Claims Appeal Board.
1.Composition and Appointment. The Claims Appeal Board is a standing committee created to receive a presentation regarding a claim. The Claims Appeal Board will hear claims for addit ional monetary compensation which may include a request for a time extension; however, stand- alone time extension requests will not be considered by the Board. The Board consists of three primary members who are normally appointed for two -year terms. A thr ee-member pool of alternates will be selected from which to provide a substitute for the primary member in the event that the primary member is unable to serve at a particular time or in the event that the Director declares the position vacant due to unfit ness, death, illness, incapacity, conflict of interest or any other circumstance which would make service on the
110.05 Claim Compensation.
Board by that member impossible, difficult or unobjective. The three primary members of the Board and three alternates are appointed in the fol lowing manner. The Transportation Director appoints the primary and one alternate for one position. The Alabama Road Builders' Association appoints the primary and one alternate for a second position. The Transportation Director and the Alabama Road Builde rs' Association jointly appoint the primary and one alternate for a third position. The jointly appointed primary member will be the Board Chairman. The jointly appointed alternate will be the alternate Board Chairman. At least one Board Member must be a l icensed Professional Engineer in the State of Alabama. In the event that an alternate member is elevated to permanently replace a primary member of the Board, then a new alternate shall be appointed in the same manner as was the departing alternate. Such w ill also be the case if an alternate position is declared vacant by the Director due to death, illness, incompetence or other reasons. In the event that both the primary member and the alternate member are unable to serve or must recuse themselves due to c onflict of interest, etc., on a particular claim(s) hearing, a new member of the Board will be appointed in the same manner as the primary member to sit for that particular hearing. The ALDOT will notify the Contractor in writing of the date of the presentation and the names of the Board members. The Contractor will have ten calendar days from receipt of the letter to file with the Director, by certified mail, an objection as to the composition of the Board which specifically details the nature of the obj ection. The Director shall have final authority in determining the composition of the Board. Each Board member will be paid $60 per hour for actual time spent on reviewing the plans, specifications, and claim; attending the presentation and for preparing the report to the Director. This payment will cover all compensation and expenses.
2.Presentations. The Contractor may initiate a request for a Board presentation by submission of a written notice by certified mail to the Director within 30 cal endar days from the date of the Director’s decision on the recommendation of the Claims Committee. Failure to make the request within the required time period shall constitute waiver of the claim by the Contractor. The Board presentation will convene at the mutual convenience of the Board, the Department, and the Contractor. Issues not specifically presented in the original claims package are waived and are not subject to consideration by the Board. The Contractor shall not contact or have any discussions with members of the Claims Appeal Board while the claim is pending except during the formal presentation. The FHWA will be invited to send an observer for Federal Aid projects. The Contractor shall pay for 50 percent of the expenses of a Board presentat ion. The written recommendation of the Board will be sent to the Director following the presentation. The Claims Appeal Board's recommendation may be accepted, modified, or denied by the Director. After receiving the recommendation of the Claims Appeal Boa rd, the Director has 45 calendar days to report his decision to the Contractor. The Director's decision in the resolution of any and all claims shall be final, non -appealable and not subject to judicial or other review. The decision of the Director is bind ing upon all parties including, but not limited to, contractors, subcontractors, and third party beneficiaries. After the final ruling by the Director on a claim, a supplemental agreement shall be processed to make payment for any amount deemed payable by the Director.
110.05 Claim Compensation.
a.General.
1.Compensable Items. The liability of the Department for claims will be limited to the following specifically identified compensable items which shall be evaluated per Artic le 109.04:
a.Additional job site labor expenses , plus workmen’s compensation insurance .
b.Additional costs for materials.
c.Additional job -site overhead.
d.Equipment costs .
e.Professional services.
f.Bond costs.
g.Subcontractor costs as determined by, and limited to, those items identified as payable under Subitems a, b, c, d, e, and f above.
110.06 Required Claim Documentation.
h.Administrative allowance, to the Prime Contractor for processing a claim on behalf of a subcontractor.
i.Gross receipts tax.
j.Public liability and proper ty damage insurance.
k.Interest that accrues after 30 calendar days from the date of the Governor’s signature on the supplemental agreement that makes payment for a claim.
2.Non-Compensable Items. The Department will have no liability for the following s pecifically identified non -compensable items:
a.Profit, in excess of that provided in Article 109.04.
b.Loss of anticipated profit.
c.Labor and equipment inefficiencies.
d.Home office overhead in excess of that provided in Article 109.04.
e.Consequential damages, including but not limited to loss of bonding capacity, loss of bidding opportunities and insolvency.
f.Indirect costs or expenses of any nature.
g.Attorneys fees , claims preparation expenses or costs of litigation.
h.Interest prior to the final resolution of the claim as defined in Subitem 110.05(a)1. k. above.
b.Claims for Delay. The Department will have no liability for damages due to delay, beyond those items which are specifically identified as compensable under Subarticle 110.05(a) above. Equipment costs, for equipment involved in a delay claim, shall be determined in accordance with the requirements for Standby Rates as provided in Item 109.04(b)4. The Depa rtment will be liable only for those delay damages caused by or arising from acts or omissions on the part of the Department which violate legal or contractual duties owed to the Contractor by the Department. Such delays may constitute a basis for a claim for delay damages and/or a request for a time extension. The Contractor assumes the risk of damages from all other causes of delay.
c.Claims for Acceleration. The Department will have no liability for any constructive acceleration unless the Department gives express written direction for the Contractor to accelerate his effort beyond that required by the original contract. Any acceleration related costs will be handled as extra work as provided in
Article 104 — 03.
110.06 Required Claim Documentation.
All claims shall be submitted in writing and shall be sufficient in detail to enable the Engineer to ascertain the basis and the amount of each claim as set forth in Article 110.03, Subarticle 110.04(a), and Subarticle 109.04(b). Al l information submitted to the Department under this Article will be used solely for analyzing and/or resolving the claim. Additionally, the following information shall be provided for all claims:
a.A copy of the "Written Notice of Intent to File a Claim " submitted for the specific claim by the Contractor , and by the Subcontractor if applicable .
b.The date on which actions resulting in the claim occurred or conditions resulting in the claim became evident.
c.A detailed factual statement of the claim p roviding all necessary dates, locations and items of work affected by the claim.
d.The specific provisions of the Contract which support the claim, and a statement of the reasons why such provisions support the claim.
e.The amount of additional compens ation sought and a break -down of the amount into the categories specified as payable under Article 110.05, Claim Compensation.
f.The name, function, and activity of each Department official, or employee, involved in, or knowledgeable about facts that giv e rise to such claim.
g.The name, function, and activity of each Contractor or Subcontractor official, or employee, involved in, or knowledgeable about facts that give rise to such claim.
h.The identification of any pertinent documents, and the substan ce of any material oral communication relating to such claim.
110.07 Auditing Of Claims.
i.If an extension of time is also sought, the specific days for which it is sought and the basis for such request. For delay claims, in addition to the above, a description of the operations t hat were delayed, the reasons for the delay and how they were delayed will be required.
110.07 Auditing Of Claims.
All claims filed against the Department shall be subject to audit by the Department’s External Auditor at any time fo llowing the filing of such claim. The audit may begin on ten days notice to the Contractor, Subcontractor, or Supplier. The Contractor, Subcontractor, or Supplier shall cooperate with the auditors. Failure of the Contractor, Subcontractor, or Supplier to m aintain and retain sufficient records to allow the Department's auditor to verify the claim shall constitute a waiver of that portion of such claim that cannot be verified and shall bar recovery thereunder. Without limiting the generality of the foregoing, and as a minimum, the auditors shall have available to them the following documents:
a.Daily time sheets and foreman's daily reports.
b.Union agreements, if any.
c.Insurance, welfare, and benefits records.
d.Payroll register.
e.Earning s records.
f.Payroll tax returns.
g.Material invoices, purchase orders, and all material and supply acquisition contracts.
h.Material cost distribution worksheet.
i.Equipment records (list of company equipment, rates, etc.).
j.Vendor rental agree ments, and Subcontractor invoices.
k.Subcontractor payment certificates.
l.Canceled checks (payroll and vendors).
m.Job cost report.
n.Job payroll ledger.
o.General ledger, general journal, (if used) and all subsidiary ledgers and journals togeth er with all supporting documentation pertinent to entries made in these ledgers and journals.
p.Cash disbursements journal.
q.Financial statements for all years reflecting the operations on this project.
r.Income tax returns for all years reflecting the operations on this project.
s.Depreciation records on all company equipment whether such records are maintained by the company involved, its accountant, or others.
t.If a source other than depreciation records is used to develop costs for the Contr actor's internal purposes in establishing the actual cost of owning and operating equipment, all such other source documents.
u.All documents which reflect the Contractor's actual profit and overhead during the years this Project was being performed and for each of the five years prior to the commencement of this Project.
v.All documents related to the preparation of the Contractor's bid including the final calculations on which the bid was based.
w.All documents which relate to each and every claim t ogether with all documents which support the amount of damages as to each claim.
x.Worksheets used to prepare the claim establishing the cost components for items of the claim including, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents which establish the time periods, individuals involved, the hours and the rates for the individuals.
111.01 Goals.
SECTION 111 DISADVANTAGED BUSINESS ENTERPRISE (DBE)
111.01 Goals.
This contract contains a specific goal for the participation of certified DBEs. The goal is expressed as the percentage of the total amount of the contract that is required for DBE participation and is given in the proposal. This type of participation is defined as Race Conscious. If no specific percentage is indicated in the proposal, then any DBE firm utilized for work in this contract is defined as Race Neutral. The requirements listed in Article 111.08 and 111.09 still apply to contrac ts with no specific goal. In addition, any participation by DBEs above the required goal is also defined as Race Neutral.
111.02 Certification.
The Department maintains a current listing of certified DBE firms by categories of work. The Department’s certification extends only to the requirements of 49 CFR 26 with regard to business size, disadvantaged status, and ownership and control of business. The certification does not attest in any way to the capabilities or capacity of any business to perform s atisfactorily. DBE firms that are not on the current certification list must seek approval prior to tendering an offer on any project. Any work performed on a contract or subcontract that was executed prior to a firm obtaining DBE certification is not eligible to be counted as participation towards the goal.
111.03 Submittal of DBE Utilization Plan.
This contract will be awarded to the lowest responsible bidder. All bidders must submit within five calendar days of the letting date the following information in writing on Form OE -110 (DBE Utilization Plan) provided by the Department: • The name , certification number, and address of the DBE firm or firms; • Identify the type of firm as a contractor (including haulers), supplier, or manufacturer; • The pay item(s) a nd description of the work to be subcontracted , including the quantities, subcontract unit prices, and the unit of measurement for compensation; • If said unit of measurement for compensation differs from that of the pay item, indicate the percentage of the overall pay item quantity to which the subcontract applies ; • The total dollar amount of the work to be subcontracted to the DBE firm (this amount shall not include Bonds or Gross Receipts Tax) ; • A written commitment from the bidder to use the DBE; • A written confirmation from the DBE that it is participating in the contract as provided in the commitment. Each DBE should only be listed on one line. Additional sheets detailing the required information , such as quotes received, may be attached as needed.
111.04 Failure by Low Bidder or Contractor to Meet DBE Goal.
In the event the apparent low bidder cannot meet the DBE goal for submission of his DBE Utilization Plan, or the Contractor does not meet the DBE goal based on actual participation during construction, he must provide documentation that good faith efforts were made to meet the goal in accordance with Article 111.05, including seeking replacement DBE participation when a DBE is terminated or fails to perform.
111.05 Good Faith Efforts.
a.Solicitation o f DBE Participation. A good faith effort is soliciting through all reasonable and available means (e.g., attendance at pre-bid meetings, advertising, written notices, corresponding with the ALDOT’s DBE Program Coordinator, placing postings on the Small Business Network of Bid Express) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidde r must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations.
Source: Alabama Standard Specifications for Highway Construction, 2022 Edition. Pages 96–100 of 934.