SUBCONTRACTING, NTP, PROGRESS SCHEDULES, SECTION 108 TIME EXTENSIONS; LIQUIDATED DAMAGES; TERMINATION 82 Table 108.9 -1. Schedule of Liquidated Damages Awarded Contract Value Daily Charge For More Than To and Including Working Day Calendar Day $0 $100,000 $770.00 $550.00 $100,000 $500,000 $1,190.00 $850.00 $500,000 $1,000,000 $1,420 .00 $1020.00 $1,000,000 $2,000,000 $2,210 .00 $1,580.00 $2,000,000 $5,000,000 $2,520 .00 $1,800.00 $5,000,000 $10,000,000 $2,680 .00 $1,92 0.00 $10,000,000 $15,000,000 $3,100 .00 $2,220 .00 $15,000,000 $20,000,000 $4,670 .00 $3,340 .00 $20,000,000 $25,000,000 $6,040 .00 $4,320 .00 $25,000,000 $30,000,000 $7,750 .00 $5,54 0.00 $30,000,000 $35,000,000 $9,730 .00 $6,950 .00 $35,000,000 $50,000,000 $12,600.00 $9,000.00
B.The Department may designate rates for assessment of liquidated damages for contracts with an awarded contract value exceeding $35,000,000 by Special Provision.
108.10 Default of the Contract.
A.The engineer may give written notice to the contractor and the surety declaring the contract in default under the following conditions:
1.Failure to begin work within the time specified in the notice to proceed.
2.Failure to perform the work with sufficient labor, equipment, and material resources to ensure prompt completion of the work in accordance with the approved schedule.
3.If the contractor's work is unacceptable or if the contractor refuses to remove materials or correct work the engineer determines is defective or otherwise unacceptable.
4.Ceasing work and failure to resume the work.
5.Insolvency, bankruptcy, files for bankruptcy or insolvency, or allowing any final judgment to stand unsatisfied for a period of 10 days.
6.Making an assignment for the benefit of creditors without the Department’s authorization.
7.Failure to carry on the work in a manner acceptable to the Department.
B.Failure by the contractor or surety to remedy the condition in the default notice within 10 days after receiving the notice, will result in the engineer declaring the contractor in default of the contract . This action will terminate the contractor's right to proceed with the work and will give full power and authority for the work to the Department without violating the contract. The Department will take ownership of the contractor’s materials at the site suitable for use . The Department may enter into an agreement with another contractor for completion of the contract or use other methods to complete the contract.
C.The Department will deduct from monies due the contractor for completed work all costs and charges the Department incurs as a result of the default, including the cost of completing the work SUBCONTRACTING, NTP, PROGRESS SCHEDULES, SECTION 108 TIME EXTENSIONS; LIQUIDATED DAMAGES; TERMINATION 83 under contract or remedying defective or otherwise unacceptable work, and applicable liquidated damages or disincentives. If the cost to complete the project exceeds the sum payable under the contract, the Department will hold the contractor and the surety liable for the costs in excess of the contract price.
D.If the Department determines, after termination of the contractor's right to proceed, that the contractor was not in default, the Department will convert the termination for default to termination for convenience in accordance with Section 108.11 , Termination of the Contract for Convenience . The Department will limit the damages the contractor may have entitlement for, resulting from an improper default termination, to amounts in accordance with Section 108.11 , Termination of the Contract for Convenience .
108.11 Termination of the Contract for Convenience
A.The Department may, by written order, terminate the contract or any portion of the contract when termination is in the best interests of the Department. In the event that termination occurs, without fault and for reasons beyond the contractor’s control, the Department will pay for all completed work at the contract price as of the termination date. The Department will pay for partially completed work or costs related to eliminated work in accordance with Section 109.8 , Pay Estimates and Retainage .
B.The Department may elect to pay for acceptable materials obtained for the work but not used as of the termination. The Department will pay the actual cost of materials delivered to a prescribed location or otherwise dispose of the materials as mutually agreed.
C.After receiving the termination notice, the contractor may submit a request for additional damages or costs not covered by these specifications, within 60 days of the termination date. The request may include the following cost items:
1.Idle equipment time.
2.Mobilization efforts.
3.Uncompensated bidding and project investigation costs.
4.Overhead expenses.
5.Subcontractor costs.
6.Idle labor costs if the Department suspends the work in advance of the termination date.
7.Guaranteed payments for private land use as part of the original contract.
8.Any other direct cost or direct damage resulting from the termination.
D.The Department will not consider loss of anticipated profits as part of a termination settlement.
E.Ensure the availability of cost records for the Department to determine the validity and amount of each item claimed.
F.Termination of the contract or portion of the contract does not relieve the contractor of its contractual responsibilities for the completed work or relieve the surety of its obligation for any just claim arising out of the work performed.
108.12 Termination of the Contractor's Responsibility.
Source: Delaware Standard Specifications for Road and Bridge Construction, 2025 Edition. Pages 92–93 of 779.