108Prosecution and Progress

Prosecution and Progress

108.01Subletting of Contract. The Contractor shall not sublet, sell, transfer, assign, or

dispose of the Contract or Contracts, or any portion thereof without written permission of the Engineer. Before beginning any work by the subcontractor, the Contractor shall request permission from the Engineer by submitting a completed Sublet Permit Application, CDOT Form. 205, via the B2GNow software system. The subcontracted work shall not begin until the Contractor has received the Engineer’s written permission. The Contractor shall make all project-related written subcontracts, agreements, and purchase orders available to the Engineer for viewing, upon request, and at a location convenient to the Engineer.

The Contractor will be permitted to sublet a portion of the Contract. However, the Contractor’s organization shall perform work amounting to 30 percent or more of the total original contract amount. Any items designated in the Contract as “specialty items” may be performed by subcontract. The cost of “specialty items” so performed by subcontract may be deducted from the total original contract amount before computing the amount of work required to be performed by the Contractor’s own organization. The original contract amount includes the cost of material and manufactured products that are to be purchased or produced by the Contractor and the actual agreement amounts between the Contractor and a subcontractor. The proportional value of a subcontracted partial contract item will be verified by the Engineer. When a firm both sells material to a prime contractor and performs the work of incorporating the materials into the project, these two phases shall be considered in combination and as constituting a single subcontract.

The calculation of the percentage of subcontracted work shall be based on subcontract unit prices.

Subcontracts or transfer of Contract shall not release the Contractor of liability under the Contract and Bond.

Failure to comply with all contractual obligations may lead to the suspension, debarment, or both of the subcontractor, and if necessary, the Contractor as stipulated in the “Rules”.

All firms that the contractor will be subletting a portion of the contract shall have an account created in the B2GNow software system. If the firm does not have an account created approval of the form 205 may be withheld.

108.02Notice to Proceed. The Contractor shall not commence work before the issuance of a

Notice to Proceed. The “Notice to Proceed” will stipulate the date that contract time commences. When the Contractor proceeds with work before that date, contract time will commence on the date work actually begins. The Contractor shall commence work under the Contract on or before the 15th day following Contract execution or the 30th day following the date of award, whichever comes later, or per the selected start date allowed in the special provisions.

108.03Project Schedule

Activity (Task). A portion of the project that requires time or resources to complete. An activity has a description, start date, finish date, duration, and one or more logic ties. A critical activity is an activity on the critical path.

108.03

Activity ID. A unique, alphanumeric, identification code assigned to an activity that remains constant throughout the project. Baseline Schedule. The original, approved project schedule before the project begins with no progress. Calendar. Defined work periods and no work periods that determine when project activities can occur. Multiple calendars may be used. Constraint. A restriction imposed in a schedule, which fixes a value that would otherwise be calculated within the schedule. Examples of values that can be fixed by a constraint include start date, end date, and completion date. Critical Path Method (CPM) Scheduling. CPM Scheduling is a logic-based planning technique using activity durations and relationships between activities to calculate a schedule determining the minimum total project duration and the interdependencies of all activities. Critical Path. The longest logical path through the CPM network driven by calendars, constraints, and activity logic. It consists of activities that determine the shortest time for project completion and the sequence of activities such that a delay to any of the activities on the critical path will prolong contractual project milestones, such as project completion. Data Date. The starting point from which to schedule all remaining work. It can also be considered the cut-off date wherein all work before this date has actual starts, actual finishes, or both. Duration. The estimated amount of time needed to complete an activity. Free Float (Free Slack). The amount of time an activity can be delayed without delaying the Early Start or Early Finish of its successor activity or activities. Gantt Chart. A time-scaled graphical display of the project’s schedule. Lag. A time-value assigned to a relationship. Logic. Relationships between activities defining the sequence of work (See also predecessor activity and successor activity). Milestone. An activity, with zero duration used to represent an event. Near Critical Activity. An activity with a total float of five days or fewer, or as defined by the Engineer. Open-Ended Activity. An activity that does not have a predecessor activity and a successor activity, or only has a start-to-start as a predecessor or finish-to-finish as a successor. Planned Completion Date. The date that the schedule shows work is planned to be completed. Predecessor Activity. An activity that is defined by schedule logic to precede another activity. Relationship. The interdependence between activities. Successor Activity. An activity that is defined by schedule logic to follow another activity.

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Time-Scaled Logic Diagram. Gantt chart that illustrates logic links depicting both schedule logic and the time that activities are performed. Total Float (Total Slack). The amount of time between the earliest date an activity can start and the latest date when an activity must start, or the earliest date an activity can finish and latest date when an activity can finish before the activity causes a delay to the time specified in the Commencement and Completion of Work special provision.

The Contractor shall use either Microsoft Project or Primavera Scheduling software to develop and manage a CPM Project Schedule to plan, schedule, and report the progress of the work. Before, or at the Pre-construction Conference, the Contractor shall notify the Engineer in writing, the scheduling software the Contractor shall use to manage the project. The Contractor’s selection and use of particular scheduling software cannot be changed after the first schedule submittal. If the Contractor selects Primavera, the Contractor shall calculate the schedule using the Retained Logic scheduling option. The Contractor shall submit schedules for approval by the Engineer. The Contractor’s schedule shall be an accurate plan to complete the work so that the Department can use the schedule to evaluate progress, schedule CDOT resources, inform the project stakeholders, and evaluate the effect of changes to the schedule. A schedule review meeting shall be held to discuss each schedule submittal. The Contractor shall submit a monthly update as either a Project Schedule Update or Revised Schedule as determined by the Engineer. When the project has a maintenance or landscape establishment period, the Engineer may waive the monthly update requirement during that period. The Contractor shall submit a final update that shows all work through the final acceptance date. The Engineer will not issue a monthly progress payment if the Engineer has not received an update. The Engineer may not make monthly progress payments for the months following the update submission until the Engineer either approves or approves-as-noted the Project Schedule Update or Revised Schedule. The Contractor shall use activity descriptions that ensure the work is easily identifiable. Activity description shall start with an action verb when practicable to clearly communicate what is being performed. The Contractor shall show the no-workdays in the schedule calendars. The contract completion date shall be included as an activity. The Contractor shall use durations for individual construction activities that do not exceed 15 days of work unless approved by the Engineer. The Contractor may group a series of activities with an aggregate duration of five workdays or less into a single activity. Non- construction activities may have durations exceeding 15 days of work, as approved by the Engineer. The Contractor may include summary bars in the schedule as long as the detailed activities to complete the work are displayed. The Contractor shall not use the following unless approved by the Engineer:

108.03

The Project Schedule shall show all activities required by all parties to complete the work. The Contractor, its subcontractors, suppliers, and engineers, at any tier, shall perform the work according to the approved Project Schedule. Float within the Baseline Schedule or any other Project Schedule is not for the exclusive use or benefit of either party but is a project resource available to both parties as needed until it is depleted. The Engineer’s review of the schedule will not exceed 10 days. The Engineer will provide the Contractor with one of the following responses within 10 days after receipt of the Project Schedule:

Approval of the Project Schedule shall not relieve the Contractor of any contract requirement including the requirement to complete all work within the Contract Time. Contractual requirements shall not change by submission or approval of a schedule, unless specifically amended by a Change Order.

schedule submittals that:

up to but not including the data date.

the contract work.

Table 108-1 Details of an Activity Block Activity ID Activity Description Original Duration Total Float Early start date Early finish date Late start date * Late finish date * Actual Start date ^ Actual Finish date ^ Calendar used on the activity Activity Responsibility# Remaining Duration ^ Duration Percent Complete ^ Gantt chart Table 108-1 Notes: * Required with the Preliminary and Baseline Schedule. ^ Required with the Project Schedule Update and Revised Schedule. # Specify subcontractors, vendors, and all stakeholders.

The Contractor shall include the following with all schedule submittals:

108.03

include real or perceived risks and assumptions, including production rates. Particular emphasis shall be made on activities that are the Contractor’s and Department’s responsibilities, third party activities, or long lead procurement items.

calendars. This narrative shall explain work and non-work periods as well as special weather dependent calendars. A list of the calendars used in the schedule, a description of each calendar’s work and non-workdays, a list of the activities using each calendar, and an explanation of how the calendar applies to that work.

approval from the Department or other agencies. (iv)A list of all added and deleted activities along with a brief explanation for the change.

changes to any critical and near critical activities. (vi)A description of site mobilization (such as dates of expected material shipments, planned dates for equipment arrivals, office setup, material laboratory arrival and setup, and anticipated portable crusher or batch plant setup). (vii)A list of the fabrication and delivery of key and long-lead procurement activities.

update.

schedules.

month’s schedule submission. (iv)A description of unusual labor, shift, equipment, or material conditions or restrictions encountered or anticipated.

(vi)Explanations for milestones forecasted to occur late. (vii)Scheduled completion date status and any change from the previous month’s submission.

after the contract completion date or contract time. (ix)Schedule Delays:

the delayed activity or activities by Activity ID(s) and description(s).

actual delay.

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completion date in the previous month’s schedule update.

as planned. (xi)A list of all added and deleted activities along with a brief explanation for the change.

with an explanation for the change.

work.

and clearly indicates all logical relationships and constraints.

complete, sorted by float and then by early start.

For all required schedule submittals, the Contractor shall submit two USB flash drives or other media as directed by the Engineer with electronic copies of the schedule submittals. Electronic copies of the CPM schedules shall be submitted both in the native file format and in Portable Document Format (PDF). Each schedule submittal shall be appropriately labeled as a Preliminary Schedule, Baseline Schedule, Project Schedule Update, or Revised Schedule. The title bar shall include the CDOT project number, subaccount, project name, Contractor name, and schedule data date. If an originally submitted schedule is revised during review, the title bar shall also include a revision number (REV1, REV2, etc.) revision date, and submission date.

submit a Preliminary Schedule showing all planned activities from the Notice to Proceed through the first 60 days of the project. If the Contractor elects not to submit a Preliminary Schedule, then the Contractor shall submit a complete Baseline Schedule within 14 days of award of the Contract, which will be subject to all requirements of a Baseline submittal. The Preliminary Schedule shall not show any progress and it will be approved by the Engineer before work can commence. The Preliminary Schedule shall be used as the basis for the Baseline Schedule.

days of the award of Contract, the Contractor shall submit a Baseline Schedule that includes all work activities completed within Contract Time. The Contractor shall not show progress in the Baseline Schedule. Further partial payments will not be made beyond 60 days after the start of Contract Time unless the Baseline Schedule is approved. When approved, the Baseline Schedule shall become the Project Schedule. The Contractor shall use all information known by the Contractor at the time of bid submittal to develop the Baseline Schedule. If the Contractor elects to submit a Baseline Schedule in lieu of a Preliminary Schedule, the Baseline Schedule shall be approved before work can commence.

108.04

Schedule updated through the cut-off date for the monthly progress pay estimate, and a projection for completing all remaining activities. A schedule update may show a completion date that is different than the Contract completion date. Approval of this schedule shall not relieve the Contractor of its obligation to complete the work within the Contract Time. When approved, the Project Schedule Update will become the Project Schedule.

Schedule that shows the Contractor’s and all Subcontractor’s planned activities for a minimum of two weeks immediately following the date of submittal and actual days worked versus planned for the week before the date of submittal. This schedule shall include the description, duration and sequence of work activities and anticipated lane closures for the upcoming two weeks. The Weekly Planning Schedule shall be based on the Project Schedule and may be a time-scaled logic diagram or other standard format as approved by the Engineer. Schedule Submittal requirements for reports do not apply to the Weekly Planning Schedule.

work. Examples of major changes are:

The Contractor shall provide a Revised Schedule within 10 days of the Engineer’s written notification and shall include the diagrams and reports as described in subsections 108.03(b) and 108.03(c). Once approved, the Revised Schedule becomes the Project Schedule.

separately but shall be included in the work.

108.04Payment Schedule. The Contractor shall prepare a payment schedule that shall show

the dollar amount of work the Contractor expects to complete, including Force Accounts, retainage and expected incentive payments, by the progress estimate date each month for the duration of construction. The payment schedule shall be signed by the Contractor’s authorized agent. The payment schedule shall show the dollar amount of work the Contractor expects to complete for every month on the Contract from commencement of work to Project Acceptance. The fiscal year (July 1 to June 30) totals shall also be shown on the payment schedule. The payment schedule may be prepared using standard spreadsheet software such as MS Excel and submitted in electronic format.

within 15 days of the award of the Contract.

Engineer. The update shall be in the same format as the initial payment schedule and shall be submitted to the Engineer by the first day of each month. In each update, estimated monthly dollar amounts shall be revised to show the dollar amount for actual work accomplished that includes actual progress payments made to the Contractor to date and

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work accomplished but not paid. Each update shall show corrected dollar amounts of work to be completed each month through the Specified Completion Date as shown on the Contractor’s Project Schedule Update. If the update has any State Fiscal Year (July 1 to June 30) payment in excess of the encumbrance amount, the Department may, in its sole discretion, approve the update. If the Department does not approve the update the Contractor shall either revise the payment schedule or proceed at his own risk. The risk is either not being paid in a timely manner, or not being paid at all for any amounts over the encumbrance amount. If the Contractor proceeds at his own risk, then payment for the at-risk work will be dependent upon ratification of this work by the State Controller’s Office. If the update exceeds the encumbrance amount because of additional compensable work, and the Department does not approve this update, any delay to critical path work related to this additional compensable work will be considered excusable and compensable per subsection 108.08(c), if the Contractor does not proceed at his own risk. If the update exceeds the encumbrance amount because of the Contractor’s accelerated schedule, and the Department does not approve the update, the delay for not performing the work associated with the Contractor’s accelerated. schedule in the scheduled Fiscal Year will be noncompensable per subsection 108.08(c), if the Contractor does not proceed at his own risk.

schedule, the Contract will not be executed. If a payment schedule update is not submitted by the required date, the Engineer will withhold progress payments until such time as the Contractor has submitted a current payment schedule.

108.05Limitation of Operations. The Contractor shall conduct the work in a manner and

sequence to assure the least interference with traffic. The Contractor shall not open up work to the prejudice or detriment of work already started. The Engineer may require the Contractor to finish a section of work before starting any additional sections if the opening of a section is essential to public convenience.

108.06Character of Workers; Methods and Equipment. The Contractor shall employ

resources for completing work to full completion in the manner and time required by the Contract. All workers shall have skill and experience to perform the work assigned to them. Any person employed by the Contractor or by any subcontractor who does not perform the work in a proper and skillful manner shall, at the written request of the Engineer, be removed by the Contractor or subcontractor and shall not be employed on the project without the approval of the Engineer. Should the Contractor fail to remove this person or persons or fail to furnish skilled and experienced personnel for the proper prosecution of the work, the Engineer may suspend the work by written notice until compliance is achieved. All equipment used on the project shall be of size and mechanical condition to meet requirements of the work and to produce a satisfactory quality of work. Equipment used shall not cause injury to the roadway, adjacent property, or other highways. When the methods and equipment to be used are not prescribed in the Contract, the Contractor shall use any methods or equipment that will accomplish the contract work inconformity with the contract requirements.

108.07

When the methods and equipment to be used are specified in the Contract, other methods and equipment shall not be used in the performance of the work unless the Contractor receives written authorization from the Engineer.

If the Contractor desires to use a method or equipment other than specified in the Contract, the Contractor may request approval from the Engineer. The request shall include a full description of the methods and equipment proposed to be used and the Contractor’s explanation for the proposed change. The Contractor will be fully responsible for producing work in conformity with contract requirements. If the substituted methods or equipment do not produce results conforming to contract requirements, the Contractor shall complete the remaining construction with the originally specified methods and equipment. Deficient work shall be removed, repaired, or replaced to conform with the specified quality by and at the Contractor’s expense. No increase will be made in the basis of payment for the construction items involved nor in contract time when a change in methods or equipment is authorized.

108.07Workplace Violence. If a representative or employee of the Contractor, or a

subcontractor, commits an act of workplace violence on the project, they shall be sanctioned as provided by the Contractor’s employment policies and, where appropriate, shall be reported to law enforcement authorities. At the request of either the Contractor or the Engineer, the Engineer and the Contractor shall meet to discuss appropriate actions to be taken against the representative or employee. Appropriate action may include removing the representative or employee from the project. If removal is warranted and the Contractor fails to remove the representative or employee, the Engineer may suspend the work by written notice until compliance is achieved.

108.08Determination and Extension of Contract Time. The contract time is stated in the

Commencement and Completion of Work special provision. The contract time will be used to determine the contract completion date.

The Contractor shall not perform construction operations on Saturdays, Sundays, or holidays unless previously arranged and approved. The Contractor shall not perform work on any day of a three-day holiday weekend when the holiday is New Year’s Day, Memorial Day, Independence Day, Labor Day, or Christmas Day. The Contractor shall not perform work on any day of a four- day holiday weekend when the holiday is Thanksgiving Day. Construction operations shall stop at 12 P.M. the day before the start of the holiday weekend and shall commence the day after the three or four days have passed. When the holiday is New Year’s Day, Independence Day, or Christmas Day and falls on a Tuesday, Wednesday, or Thursday, construction operations shall stop at 12 P.M. the day before the holiday and shall commence the next Working Day. The Contractor shall only make emergency repairs and provide proper protection of the work and traveling public on these days.

Engineer will furnish the Contractor a weekly statement showing the number of days assessed for the preceding week and the number of days remaining for completion of the Contract. If the Contractor is in disagreement with the current weekly statement, the Contractor shall submit a request for review of the current weekly statement. Such request shall be made within 30 calendar days of the receipt of the statement and shall detail the reasons the statement is believed to be incorrect. When final acceptance has been made by the Engineer as prescribed in subsection 105.21, the daily time charges will cease on working day and calendar day projects.

108.08

contract time will be assessed for each working day that the work can be effectively prosecuted during six hours or more of the day. One-half day will be assessed for each working day that the work can be effectively prosecuted for at least two hours but less than six hours of the day. Contract time will not be assessed when the work can be effectively prosecuted for less than two hours. Saturdays, Sundays, and holidays will be assessed as workdays when the Contractor utilizes such days for prosecuting the work.

of contract time will be assessed for each calendar day from the date that Contract time starts including Saturdays, Sundays, and holidays. Less than full time charges may be made on those days when conditions, which are beyond the control of and unknown to the Contractor, make it impossible to prosecute the work on items controlling the completion of the work with full, normal efficiency. Less than full time charges may be allowed for inclement weather only when the Engineer directs the Contractor not to work for the safety of the traveling public. When less than full time charges are to be assessed, the following procedures will be followed: One whole day of contract time will be assessed for each calendar day that the work is prosecuted during six hours or more of the Contractor’s daily working schedule; one-half day will be assessed for each calendar day that the work is prosecuted for at least two hours but less than six hours of the day; contract time will not be assessed when the work is prosecuted for less than two hours.

under the Contract shall be completed on or before that date. No extension of the completion date will be allowed for inclement weather, foreseeable causes, or conditions under the control of the Contractor. If all work under the Contract is not completed on or before the specified completion date, contract time will be assessed for each additional calendar day per subsection

the Contractor’s fault or negligence. The Department may grant a contract time extension for an excusable delay.

responsible for entitling the Contractor to a time extension and monetary compensation. Monetary compensation for compensable delays will be made per subsection 109.10.

Department is responsible for that may entitle the Contractor to a contract time extension but no additional monetary compensation. Contract time allowed for the performance of the work may be extended for delays due to force majeure (acts of God, acts of the public enemy, terrorist acts, fires, floods, area wide strikes, embargoes, or unusually severe weather).

the Contractor that the Department will not grant monetary compensation or a contract time extension.

108.08

period of time that a nonexcusable delay is concurrent with an excusable delay.

noncompensable delay is concurrent with a compensable delay. Delays in delivery of materials or fabrication scheduling resulting from late ordering, financial considerations, or other causes that could have been foreseen or prevented will be considered nonexcusable delays. However, delays caused by fuel shortage or delay in delivery of materials to the Contractor due to some unusual market condition caused by industry‑wide strike, national disaster, area‑wide shortage, or other reasons beyond the control of the Contractor that prevent procurement of materials or fuel within the allowable contract time limits will be considered excusable delays.

Contractor recognizes a potential project delay. The Contractor or Engineer shall document the discussion in writing. This discussion and documentation are not considered an official notice of a delay. The Contractor shall provide a written notice of delay within seven days of determining the need for additional contract time. The notice of delay shall describe the nature and specific cause of the delay. Failure to submit the written notice of delay within seven days constitutes a waiver of entitlement to additional time or compensation. The Contractor shall submit the time extension request and supporting analysis within 30 days of the written delay notice. The request shall include a schedule analysis with all information needed to support the time extension request pursuant to one of the following methods including an explanation for selecting that method:

guideline AACE® International Recommended Practice No. 52R-06 Prospective Time Impact Analysis – As Applied in Construction.

AACE® International Recommended Practice 29R-03 Forensic Schedule Analysis.

The analyses shall show a delay to the critical path in order to obtain a contract time extension. The Contractor shall demonstrate that efforts were made to avoid the delay by resequencing the work or by using other reasonable alternatives. Failure to submit the documentation to support the time extension request within 30 days of the Contractor’s written notice of delay constitutes a waiver of entitlement to additional time or compensation. The Engineer’s review of the time extension request will not exceed 15 days. The schedule included in the request shall be per subsection 108.03(c). The Engineer will base a determination of an allowable contract time extension on the current “Approved, no exceptions taken” or “Approved-as-Noted” Project Schedule that shall have a data date within 30 days before the alleged delay, the supporting documentation and schedule analysis submitted by the Contractor, and any additional relevant information available.

The Contractor’s assertion that insufficient contract time was specified is not a valid reason for an extension of contract time. Adding activities to or changing logic on a Project Schedule Update shall not constitute supporting documentation of a delay request

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justification. The Contractor shall submit a justification for determination of a contract time extension separately from the Project Schedule Update. Approval of a Project Schedule Update or Revised Schedule will not constitute approval of a contract time extension. When the Engineer grants a contract time extension, the revised Contract Completion date will be in effect as though it were the original contract date. The Contractor’s failure to have an “Approved” or “Approved-as-Noted” current project schedule in place will preclude the Department from approving a Contractor’s time extension request.

108.09Failure to Complete Work on Time. A daily charge will be made against the

Contractor for each calendar day, including free time, that any work remains uncompleted after the elapse of contract time. This daily charge will be deducted from any money due the Contractor. This deduction will not be considered a penalty, but as liquidated damages.

The schedule of liquidated damages set forth below is an amount, agreed to by the Contractor and the Department, as reasonably representing additional construction engineering costs incurred by the Department if the Contractor fails to complete performance within the contract time.

Table 108-2 Liquidated Damages Original Contract Amount ($); from Liquidated Damages per more than, to, and including Calendar Day ($) 0 -1,000,000 1,400 1,000,000 – 2,000,000 2,500 2,000,000 – 6,000,000 4,500 6,000,000 – 9,000,000 8,000 9,000,000 – 20,000,000 8,800 Above 20,000,000 12,500

Due account shall be taken of any adjustment of the contract time for completion of the work granted under the provisions of subsection 108.08. Permitting the Contractor to continue and finish the work or any part thereof after elapse of contract time will not operate as a waiver on the part of the Department of any of its rights under the Contract. Deductions assessed as liquidated damages under this subsection shall not relieve the Contractor from liability for any damages or costs resulting from delays to other contractors on the project or other projects caused by a failure of the assessed Contractor to complete the work according to contract times.

108.10

108.10Default of Contract

Contractor and the Surety by certified mail for any of the reasons listed below. The notice will describe the conditions causing the impending default, advise them of the actions required for remedy, and state that if the conditions have not been corrected within 10 days of receipt of the notice, CDOT will find the Contractor in default. The Department may send a written notice of intent under this part (a) if the Contractor:

completion, or

allows a final judgment to remain unsatisfied for a period of 10 calendar days, makes an assignment for the benefit of creditors, or

Business Enterprise (DBE) requirements, or Equal Employment Opportunity (EEO) requirements, or

If the Contractor fails to correct the conditions identified in the notice of intent to find the Contractor in default within 10 calendar days of receipt, the Department may serve the Contractor with an immediate notice of default and take prosecution of the work from the Contractor. Copies of the default notice will also be sent, by certified mail, to the Contractor and the Surety.

Contractor and the Surety by certified mail for the reason listed below. The notice will include a suspension of work, which will require the Contractor to cease work on the Contract Items that are unacceptable. The notice will describe the conditions causing the impending default, advise the Contractor of the actions required for remedy and state that if the conditions have not been corrected within 10 days of receipt of the notice, CDOT will find the Contractor in default. The Department may send a written notice of intent under this part (b) if the Contractor fails to perform the work to Contract requirements or neglects or refuses to correct or remove and replace rejected materials or unacceptable work. The Contractor shall not resume work on the unacceptable Contract Items until the following conditions have been met:

that will be followed by the Contractor to correct the unacceptable conditions, and

If the Contractor fails to meet these three conditions within 10 calendar days of receipt of the notice of intent to find the Contractor in default, or if at any time after the Contractor resumes work, the work does not meet Contract requirements or the

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Contractor again neglects or refuses to correct or remove and replace rejected materials or unacceptable work, the Department may serve the Contractor with an immediate notice of default and take prosecution of the work from the Contractor. Copies of the default notice will also be sent, by certified mail, to the Contractor and the Surety.

chooses to rebid the remaining Contract work on this project, the Contractor will not be allowed to submit a bid for this work.

with others to complete the remaining Contract work.

payments owed the Contractor. If such costs exceed the payment owed the Contractor, the Contractor and Surety shall reimburse the Department for these costs. These costs and charges may include but are not limited to cost of Contract completion, including designing, advertising, bidding and awarding the remaining work and liquidated damages or disincentives.

parties shall be the same as if the Contract had been terminated per subsection 108.10. Damages for improper notice of default may be awarded accordingly.

108.11Termination of Contract

or in part if the Engineer determines that termination is in the Department’s best interest. Contract termination will be initiated by the Engineer’s written Contract Termination Notice to the Contractor. The notice will specify the effective date.

Notice, shall cancel any outstanding commitments for procurement of materials, supplies, equipment, and miscellaneous items. In addition, the Contractor shall use reasonable effort to cancel or divert any outstanding subcontract commitments to the extent they relate to any work terminated. With respect to such canceled commitments the Contractor shall:

Such settlements will be approved by the Engineer and shall be final; and

the terminated orders and subcontracts, as directed. The Department will then have the right to settle or pay any or all claims arising out of the termination of these commitments.

within 90 days after the termination notice effective date. During the 90-day period, the Contractor may make a written request for a time extension in preparing the claim. Any time extension must be approved by the Engineer. If the Contractor fails to submit the termination claim within the time allowed, the Engineer may determine the amount due the Contractor by reason of the termination.

108.11

upon the whole or any part of the amount to be paid to the Contractor because of the termination. The amount may include reasonable cancellation charges incurred by the Contractor. The amount may also include any reasonable loss upon outstanding commitments for subcontracts that the Contractor is unable to cancel, provided the Contractor has made reasonable effort to divert the commitments to other activities. The amount agreed upon shall be embodied in a Contract Modification Order and the Contractor shall be paid that amount. Payments claimed and agreed to pursuant to termination shall be based on the Contract unit prices. Payment for partially completed lump sum items may be made in the proportion that the partially completed work is to the total lump sum item. Where work performed is of a nature that it is impossible to separate the costs of uncompleted work from completed units, the Contractor will be paid the actual cost incurred for the necessary preparatory work and other work accomplished. The Department may from time to time, under terms and conditions it may prescribe, make partial payments against costs incurred by the Contractor in connection with the contract termination. The total of such payments shall not exceed the amount, as determined by the Engineer, the Contractor will be entitled to hereunder.

Department, as directed, such items which, if the Contract had been completed, would have been furnished to the Department including:

performance of the work terminated by the notice. Other than the above, any termination inventory resulting from the contract termination may, with written approval of the Engineer, be sold or acquired by the Contractor under the conditions prescribed by and at prices approved by the Engineer. The proceeds of any such disposition shall be applied to reduce any payments to the Contractor under the Contract or shall otherwise be credited to the cost of work covered by the Contract or paid in a manner as directed. Until final disposition, the Contractor shall protect and preserve all the material related to the Contract that is in the Contractor’s possession and that the Department has or may acquire an interest.

to determine the validity and amount of each item claimed.

the Contractor of contractual responsibilities for the work completed, nor shall it relieve the Surety of its obligation for and concerning any just claim arising out of the work performed.

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109.01