108PROSECUTION AND PROGRESS

108.01Subletting of Contract. The Contractor will be

permitted to sublet a portion of the Contract, exce pt that work amounting to not less than 30% of the total Contrac t amount (based on the Contract unit prices) must be performed by t he Contractor's organization. No subcontractor shall further subco ntract any portion of the work without the written consent of the Cont ractor and acknowledgment of the Engineer. If consent and ack nowledgment are given, the first tier subcontractor may further subcontract a portion of his work not to exceed 70% of the work o riginally subcontracted to him by the Contractor. Second tie r subcontractors will not be permitted to subcontract any portion of the work. No subcontracts, or transfer of contract, shall in any case release the Contractor of liability under the Contract and bond . The Contractor shall submit and file with the Engin eer a signed copy of each subcontract. No work may be performed by a proposed subcontractor until the Contractor has received ack nowledgment by the Engineer. It shall be the responsibility of the Contractor to determine that all parties performing work amounting to $20,000 or mor e are currently licensed by the Contractors Licensing Board for the State of Arkansas. The Contractor shall pay all subcontractors their r espective subcontract amount within 10 calendar days after th e Contractor receives payment from the Department. The payment amount shall be according to the terms of the subcontract, excep t that the Contractor shall not require or withhold a retainag e in excess of 10% of the amount due to the subcontractor. Amounts wi thheld as retainage from subcontractors must be returned with in thirty calendar days after the subcontractor’s work is sat isfactorily completed, whether the Contractor’s work is complet e or not. The term “satisfactorily completed” for the purpose of this prompt return of retainage provision is defined as when; 1) the subcontractor’s work is completed in accordance with the plans and specifications, 2) all required paperwork, including material certi fications, payrolls, etc., has been received and approved by the Enginee r; 3) the 108 95 subcontractor does not have past due balances with suppliers for work associated with the project; and 4) the Engin eer has determined the final quantities for the subcontract or’s portion of the work. Delay or postponement of payment to a subcon tractor may only be effected after the Contractor has established good cause and received written approval from the Engineer. If th e Contractor fails to pay the subcontractors within the required perio ds, all or any portion of subsequent payments due the Contractor m ay be withheld by the Engineer. In addition to the allowable retainage specified ab ove, the Contractor may withhold from payments due to the su bcontractor amounts owed by the subcontractor to the Contractor for items on the Contract. Payments to subcontractors in the fo rm of joint checks made payable to the subcontractor and any other par ty shall be documented either in the approved subcontract or by a separate written agreement between the Contractor and the su bcontractor. No other deductions from the full amount due will be a llowed. Contractors must include in their subcontract agreements notice to subcontractors of their right to prompt payment and return of retainage, and provisions that require the subcontr actor to pay second tier subcontractors as provided above, with the same restrictions on retainage.

108.02Prosecution of Work. (a) Preconstruction Con ference

A preconstruction conference, when applicable, will be held for each contract as soon as possible after the execution of the Contract and generally before the work begins. The Engineer wil l notify the Contractor, utility companies, and other interested parties of the date and place for the conference.

orders applicable to the prosecution of the work:

under the Contract until the Engineer has issued a Work Order. The Contractor shall notify the Engineer of intent to begin work at least 72 hours before work is begun.

Contract and bonds properly executed on behalf of t he Contractor and surety and the minimum 72 hours advance notice as required 108 96 above shall constitute the Contractor's authority t o begin the following items of work: • Mobilization; • Preparation of shop drawings and other required submissions; • Ordering, fabrication, assembly, and/or stockpiling of materials; • Driving Test Piling; and • Contract surveying, when Roadway and/or Bridge Construction Control is included in the Contract. • Erection of advance warning signs. Such advance work shall be subject to the Contracto r's assumption of the risk of cancellation of the award and the following: • The Contractor shall, on commencing such operations, take all precautions required for public safety and shal l observe all the provisions in the Contract; • In the event of cancellation of the award, the Con tractor shall at Contractor expense do such work as necessary to leave the site in a neat condition to the satisfaction of the Engineer; • In the event of cancellation of the award, all wor k performed shall be deemed to be at the Contractor's expense; and • All work done under this subsection in accordance with the Contract before its execution by the Commission wil l, when the Contract is executed, be considered authorized work and will be paid for as provided in the Contract. Unless otherwise notified in writing, no time will be assessed for work performed prior to the effective date of a Work Order. No payments will be made prior to the date establis hed by the Engineer under Subsection 109.07, which date will b e after the effective date of a Work Order. The Contractor shall not be entitled to any additio nal compensation or an extension of time for any delay, hindrance, or interference caused by or attributable to commencem ent of work before the effective date of a Work Order.

issued which will describe the specific items and/o r limits of 108 97 work to be performed under the Partial Work Order. Assessment of contract time will be as described in the Work O rder and payment will be made according to Section 109.

Contractor is otherwise advised in writing, the Wor k Order for a fixed completion date contract shall become e ffective on the day following the execution of the Contract by the Department. Should the effective date fall on Satu rday, Sunday, a legal holiday designated in Subsection 10 1.01(c), Monday following a holiday on Sunday, or Friday preceding a holiday on Saturday, the effective date shall be the next work day. The written Work Order from the Engineer will follow with the effective date being as specified.

otherwise advised in writing, the Work Order for a working day contract shall become effective on the fifteent h calendar day following the execution of the Contrac t by the Department. Should the effective date fall on Sat urday, Sunday, a legal holiday designated in Subsection 10 1.01(c), Monday following a holiday on Sunday, or Friday preceding a holiday on Saturday, the effective date shall be the next work day. The written Work Order from the Engineer will follow with the effective date being as specified. No time will be assessed for any work p erformed including erection of traffic control devices durin g the 10 calendar day period following the effective date of the Work Order. The assessment of contract time, accor ding to Subsection 108.06, will begin on the eleventh calen dar day following the effective date of the Work Order. Except as specified in 108.02(b)(2) above, no work of any type, including the erection of traffic control dev ices, shall begin before the effective date of the Work Order.

Contract not later than 10 calendar days after the effective date of the Work Order. If the Contractor is unable to beg in the work within this time period, the Engineer shall be so notified in writing. Unless 108 98 the Engineer gives written approval for the delay i n beginning the work, contract time will be assessed according to S ubsection 108.06.

the total time allowed in the Contract. The Contra ctor may propose an accelerated work schedule indicating an early co mpletion date; however, the Department cannot guarantee the Department's resources will be available to meet the accelerated schedule. No additional compensation or extension of time will b e allowed if the Contractor is unable to meet the accelerated schedule due to the unavailability of the Department's resources or for other reasons beyond the Department's control.

108.03Limitation of Operations. The Contractor shall conduct

the work at all times in such a manner and in such sequence as will assure the least interference with traffic. Due re gard shall be given to the location of detours and to the provisions fo r handling traffic. No work shall be opened up to the prejudice or detr iment of work already started. The Engineer may require the Cont ractor to finish a section on which work is in progress before work is started on any additional sections if the opening of such section is essential to public convenience.

108.04Character of Workers, Methods, and Equipment . The

Contractor shall at all times employ sufficient lab or and equipment for prosecuting the several classes of work to full completion in the manner and time required by these specifications. All workers shall have sufficient skill and experie nce to perform properly the work assigned to them. Workers engage d in special work or skilled work shall have sufficient experience in such work and in the operation of the equipment required to p erform all work properly and satisfactorily. Any person employed by the Contractor or by any sub contractor who, in the opinion of the Engineer, does not perfo rm work in a proper and skillful manner, or is intemperate or di sorderly shall, at the written request of the Engineer, be removed for thwith by the Contractor or subcontractor employing such person, and shall not be employed again in any portion of the work without t he approval of the Engineer. Should the Contractor fail to remove such person or persons as required above, or fail to furnish suitable and suf ficient personnel for 108 99 the proper prosecution of the work, the Engineer ma y suspend the work by written notice and withhold moneys due unti l such orders are complied with. All equipment that is proposed to be used on the wo rk shall be of sufficient size and in such mechanical condition as to meet requirements of the work and to produce a satisfact ory quality of work. Equipment used on any portion of the project shall be such that no injury to the roadway, adjacent property, o r other highways will result from its use. When the methods and equipment to be used by the Co ntractor in accomplishing the construction are not prescribed i n the Contract, the Contractor is free to use any methods or equipm ent that are demonstrated to the satisfaction of the Engineer as being capable of accomplishing the Contract work in conformity with the requirements of the Contract. When the Contract specifies that the construction b e performed by using certain methods and/or equipment, such met hods and/or equipment shall be used unless others are authorize d by the Engineer. If the Contractor desires to use a metho d or type of equipment other than those specified in the Contrac t, authority from the Engineer to do so must be requested. The reque st shall be in writing and shall include a full description of the methods and equipment proposed to be used and an explanation of the reasons for desiring to make the change. If approval is given, it will be on the condition that the Contractor will be fully responsible for producing work in conformity with contract requirements. If, after trial use of the substituted methods or equipment, the Engineer determines that the work produced does not meet contract requiremen ts, the Contractor shall discontinue the use of the substit ute method or equipment and shall complete the remaining construction with the specified methods and equipment. The Contractor sh all remove the deficient work and replace it with work of specifie d quality, or take such other corrective action as the Engineer may di rect. No change will be made in basis of payment for the constructi on items involved nor in contract time as a result of an authorized c hange in methods or equipment under these provisions.

108.05Temporary Suspension of Work. The Engineer will

have the authority to suspend the work wholly or in part for such period or periods necessary, due to unsuitable weat her or other 108 100 conditions unfavorable for the suitable prosecution of the work. If it should become necessary to stop work for an indefin ite period, the Contractor shall store all materials in such manner that they will not obstruct or impede the traveling public nor become damaged in any way, and shall take every reasonable precaution to prevent damage or deterioration of the work performed; provide sui table drainage of the roadway by opening ditches and shoulder drains; maintain the traveled way; erect temporary structures where dire cted; etc. The Contractor shall not suspend the work nor remov e any equipment or materials essential to the completion of the current phase of the project without the permission of the Engineer. If the performance of all or any portion of the wor k is suspended or delayed by the Engineer in writing for a period of time not originally anticipated, customary, or inherent to t he construction industry and the Contractor believes that additiona l compensation and/or contract time is due as a result of such sus pension or delay, the Contractor shall submit to the Engineer in writing a request for adjustment within ten (10) business days of the rec eipt of the notice to resume work. The request shall set forth the re asons and support for such adjustment. Upon receipt, the Engineer will evaluate the Contra ctor's request. If the Engineer agrees that the cost and/or time re quired for the performance of the Contract has increased as a resu lt of such suspension and the suspension was caused by conditi ons beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the Engineer will make an adjustment (excluding profit) and modify the Contract in writing accordingly. The Engineer will notify the Contractor of a determination whether or not an adj ustment of the Contract is warranted. No Contract adjustment will be allowed unless the C ontractor has submitted the request for adjustment within the tim e prescribed. No Contract adjustment will be allowed under this c lause to the extent that performance would have been suspended o r delayed by any other cause, or for which an adjustment is prov ided for or excluded under any other term or condition of the C ontract.

108.06Determination of Time of Completion and Exte nsion

of Contract Time. (a) General. The time allowed for the 108 101 completion of the work included in the Contract wil l be stated in the proposal and Contract, and will be known as the "Co ntract Time". The contract time will be specified as a fixed comp letion date or as working days. The Contractor shall provide sufficient materials, equipment, and labor to guarantee the completion of the project ac cording to the plans and specifications within the contract time. The Contractor shall advance the work so that the available time i s appropriately utilized in order to complete the work within the c ontract time. Unless an emergency is declared, the Contractor sha ll not perform work that requires inspection on Sundays or legal h olidays designated in Subsection 101.01(c) and the actual h oliday if it falls on a Saturday or Sunday. If the Commission declares Friday following Thanksgiving Day as a Departmental holida y, the Contractor shall not perform work that requires ins pection. No claim for an extension of time will be considere d as a result of failure of the Engineer to furnish interpretations of the plans and specifications until 30 calendar days after receipt of such demand in writing as required by Subsection 105.01, and not t hen unless such request for an interpretation is reasonable and mad e in good faith. The Engineer will determine the date upon which the Contract is substantially complete and time assessment will cease. In the event cleanup is necessary or items found at the final in spection are to be corrected, the Contractor shall complete this work in a timely manner or the Engineer will resume time charges.

as a fixed date, it will be the date on which all w ork on the project shall be substantially complete. The Contractor sh all take into consideration all normal conditions considered unfa vorable to the normal progress of the work and place a sufficient work force and equipment on the project to ensure completion of th e work within the contract time. Inaccessibility to a portion of the work due to utility conflict or utility work, either of which p revents effective utilization of 60% of normal forces and equipment f or at least 60% of the Contractor's normal work hours, will be cons idered as an adverse working condition for time exceeding thats pecified in the Contract for the utility adjustment. 108 102 (c) Working Days. When the contract time is specified in working days, time will be assessed for each day on which, in the judgement of the Engineer and subject to the limitations below, conditions allow the Contractor to effectively utilize 60% of normal forces and equipment to prosecute the work required at that time, for at least 60% of the Contractor's normal work hours, regardless of whether the Contractor actually works. The Engineer will not assess a working day when con ditions exist beyond the control and without the fault of the Con tractor that prevent the utilization of forces and equipment as defined above. Also, for the purpose of assessment of working days , inaccessibility to a portion of the work due to utility conflict or utility work, either of which prevents utilization of forces and equipme nt as defined above, will be considered as an adverse working con dition for time exceeding that specified in the Contract for the ut ility adjustment. The ability of vendors, suppliers, and subcontracto rs to provide materials and/or services is considered within the Contractor's control for the purpose of assessment of working da ys. Should the Contractor prepare to begin work on any day on which inclement weather, or the conditions resulting from the weather, prevent the work from beginning at the usual starti ng time, and the crew is dismissed as a result, the Contractor will not be charged for a working day whether or not conditions change during the day and the rest of the day becomes suitable for constructi on operations. Time from December 21 through March 15, inclusive, will not be assessed against the contract time. Saturdays and Department recognized holidays, other than those designated above, which may be declared by the Depa rtment for certain special or unusual circumstances, will be o ptional to the Contractor as working days, and time will not be as sessed unless work is performed that requires inspection. If wor k is performed, contract time assessment will be based upon the sam e conditions as a normal working day. Contract time will be assessed during a Partial Wor k Order period according to Subsection 108.02(b)(3). Contract time will not be assessed during a full su spension of the work as ordered by the Engineer. During a partial suspension of the work as ordered by the Engineer, the contract time will be assessed 108 103 in direct proportion to the ratio of the money valu e of the items not suspended to the total contract amount. At the end of each estimate period, the Engineer wi ll furnish the Contractor a written statement showing each working day charged during the preceding period and the total number of working days charged to date. If the Contractor disagrees with the working days charged by the Engineer, then the Contractor shall, within 10 calendar days after receipt of the statement, gi ve the Engineer written notice of such disagreement and the reasons therefor. Subsequent handling of this dispute shall be according to Subsection 105.01. If the Contractor fails to prot est the Engineer's determination of working days charged within the 10 calendar day period, the Contractor shall be deemed to have acce pted the time charged for that period as correct and no subsequen t request for review will be considered.

complete the work within the contract time as speci fied, at any time prior to the final acceptance of the project, a wri tten request may be made to the Engineer for an extension of time. This request must contain specific dates and the detailed circumstances relative to the time extension desired. The Contractor's contentio n that insufficient time was specified is not a valid reason for an ext ension of time. All extensions of time, except extensions due to ov erruns, will be documented by Change Order. Any extended time for completion shall be in full f orce and effect the same as though it were the original contract ti me.

is not issued within 30 calendar days after the exe cution of the Contract. An extension of time will be given b ased on the number of days delayed beyond the 30 calendar d ays.

between the effective dates of any order from the E ngineer for a complete or partial suspension of the work, w hen such suspension is due to no fault of the Contractor. D ays assessed during a partial suspension period will be determined by dividing the money value of the work 108 104 performed during the partial suspension period by t he money value of one day. The money value of one day will be based on the ratio of the total contract amount to the number of calendar days from the date of the work o rder through the fixed calendar date stipulated in the C ontract, both dates inclusive.

value of accumulated current estimates or the final estimate, exclusive of incentives and disincentives , exceeds the dollar value of the total contract bid, the completion date will be extended by the number of c alendar days obtained by multiplying the contract time as s et forth in the Contract by that percentage that the dollar value of the estimate exceeds the dollar value of the total contract bid. When this occurs, the extension of time will be based upon the number of calendar days from the date of t he work order through the fixed calendar date stipulated in the Contract, both dates inclusive.

the contract time will be increased in the same pro portion that the total dollar value, exclusive of incentives and disincentives , exceeds the total contract bid.

documented evidence submitted by the Contractor, if :

materials and the Contractor experiences a delay in delivery because of Federal priorities for defense needs or because of nationwide shortages. Additional contract time may be allowed in an amount equal to the actual lost time resulting from such delay. To obtain additional contract tim e, the Contractor shall document and file with the Enginee r all evidence pertaining to the original agreement with the material supplier or manufacturer. This evidence m ust indicate that delivery would be made at or before t he time the materials would be needed in the normal sequenc e of construction operations for incorporation in the wo rk. In the event that no prior agreement has been made for furnishing a critical material, and the Contractor is unable 108 105 to locate a supplier or manufacturer that can deliver the material when needed, the Engineer shall be advised of this situation in writing, indicating the date that deli very will be made and the date of the original request for such material. In either of these situations, when work has progre ssed to the point that critical materials not delivered are delaying progress of the project, the Contractor may make a written request to the Engineer for additional contract tim e.

the Commission.

others specified in the Contract has not been accom plished and the delay is not the fault of the Contractor.

materials were significantly abnormal and these con ditions significantly delayed the work. For consideration of a time extension based on weather conditions, the Contract or shall submit, in writing, documented evidence of the cond itions that existed for the specific days requested. The Engineer will verify the validity of the request.

needed to complete this extra work would exceed the normal time extension as a result of overruns, base d on money value, the completion date may be extended by Change Order to provide for this difference.

overruns did not materialize due to underruns in ot her items.

described herein that were beyond the control and w ithout fault of the Contractor.

108.07Failure to Complete Work on Time. Time is an

essential element of the Contract and it is importa nt that the work be pressed vigorously to completion. The cost to the Department of the administration of the Contract, including engineeri ng, inspection, and supervision, will be increased as the time occu pied in the work 108 106 is lengthened. Loss will accrue to the public due to delayed completion of the contemplated facility. For each calendar day or working day, as specified, that work remains uncompleted after the contract time has exp ired, the sum specified in the proposal and Contract will be dedu cted from any money due the Contractor, not as a penalty, but as liquidated damages. Should the amount otherwise due the Contractor be l ess than the amount of such liquidated damages, the Contractor a nd the Surety shall be liable to the Department for such deficien cy. Permitting the Contractor to continue and finish th e work or any part of it after the time fixed for its completion, or after the date to which the time for completion may have been extende d, will in no way operate as a waiver on the part of the Departme nt of any of its rights under the Contract.

108.08Default and Termination of Contract. The Engineer

will give written notice of delay, neglect, or defa ult to both the Contractor and the Surety if the Contractor:

specified in the Work Order, or

or materials to assure prompt completion of the wor k, or

refuses to remove materials or to perform anew such work as may be rejected as unacceptable or unsuitable, or

calendar days after notice to do so, or

of bankruptcy or insolvency, or fails to provide a replacement bond within 10 calendar days, containing all the guarant ees of the original bond, if the Surety should be declared in default a nd/or liquidation, or

in an expedient manner, or 108 107 (h) Allows any final judgment to stand unsatisfied for a period of 10 calendar days, or

in determining pay quantities for estimates within 30 calendar days, or

public, or others associated with the work or to pr ovide proper superintendence of the work, or

manner acceptable to the Department. If the Contractor or Surety, within a period of 10 calendar days after written notice from the Engineer, does not pr oceed according to the notice, the Commission will, upon written notif ication from the Engineer of the facts relative to delay, neglect, o r default, and the Contractor's failure to comply with the written not ice, have full power and authority, without violating the Contract , to take the prosecution of the work out of the hands of the Con tractor. The Commission may appropriate or use any or all materials and equipment associated with the project as may be sui table and acceptable and may enter into an agreement for the completion of the Contract according to the terms and provisions thereof, or use such other methods as in the opinion of the Enginee r will be required for the completion of the Contract. All costs and charges incurred by the Commission du e to any of the above will be deducted from any moneys due or w hich may become due the Contractor. If such expense exceeds the sum that would have been payable under the Contract, the Con tractor and the Surety shall be liable and shall pay to the Commission the amount of such excess. Such charges shall include but not be limited to the cost of completing a part or all of the work under the Contract, for calculating and collecting any compensating taxes d ue under Ark. Code Ann. §26-53-201 et seq. and Ark. Code Ann. §17 -22-401 et seq. (formerly Act 125 of 1965), and for the collection of any overpayments due the Commission. 108 The Department may, by written order, terminate the Contract or any portion thereof after determining that for reas ons beyond either Department or Contractor control the Contractor is prevented from proceeding with or completing the work as originall y contracted for, and that termination would be in the public interes t. Reasons for termination may include, but need not be necessaril y limited to: executive orders of the President relating to prose cution of war or national defense; national emergency that creates a serious shortage of materials; orders from duly constituted authorit ies relating to energy conservation; and restraining orders or inju nctions obtained by third-party citizen action resulting from national or local environmental protection laws or where the issuance of such order or injunction is primarily caused by acts or omissions of persons or agencies other than the Contractor. When contracts, or any portion(s) thereof, are term inated before completion of all items of work in the Contract, pa yment will be made for the actual number of units or items of wor k completed at the contract unit price, or as mutually agreed for items of work partially completed or not started. No claim for l oss of anticipated profits will be considered. Reimbursement for organization of the work (when no t other wise included in the Contract) and moving equipment to and from the project will be considered where the volume of work completed is too small to compensate the Contractor for these expenses under the contract unit prices, the intent being that an equitable settlement will be made with the Contractor. Acceptable materials, obtained by the Contractor fo r the work, that have been inspected, tested, and accepted by t he Engineer, and that are not incorporated in the work may, at the o ption of the Engineer, be purchased from the Contractor at actua l cost as shown by receipted bills and actual cost records at such points of delivery as may be designated by the Engineer. Termination of a contract or a portion thereof shal l not relieve the Contractor of responsibilities for the completed wo rk, nor shall it relieve the Surety of its obligation for and concer ning any just claims arising out of the work performed.

108.09Vacant

109 109 108.10 Suspension or Termination of Contract Becaus e of Insufficient Appropriation of Funds. When the construction of the project is being financed, in whole or in part, with funds provided by an agency or agencies of government other than the State of Arkansas and should such agency or agencies fail to appropriate and make available sufficient funds for the normal prosecution of the Contract, the Commission reserves the right to: • delay issuance of the initial work order to the Co ntractor until sufficient funds have been made available, • suspend construction operations on the project after the Work Order has been issued until sufficient funds h ave been made available, or • terminate the Contract upon giving 30 calendar days written notice to the Contractor. If suspension of construction operations is ordered , the requirements of Subsection 108.05, as applicable, s hall govern. If the Contract is terminated by the Commission, th e requirements of Subsection 108.08, as applicable, s hall govern. If it becomes necessary to suspend work because of insufficient funds, additional time for completion will be allowed equal to the period during which work is necessarily so suspende d. In no case will additional compensation be allowed for such su spension of work except an equivalent extension of time for com pletion of the Contract.

108.11Termination of Contractor's Responsibility. The

Contract will be considered complete when all work has been finished, the final inspection made by the Engineer , and the project accepted by the Department. The Contractor's respo nsibility shall then cease, except as may be required by law or as set forth in the Surety bonds and insurance policies.