109MEASUREMENT AND PAYMENT

109.1Measurement of Quantities.

the truck or hauling equipment. Check the tare weight once daily, or as often as directed by the engineer. Make appropriate adjustments in the use of the tare weight as directed by the engineer. Computer generate all weight tickets. A Department Materials & Research inspector will sign weight tickets showing a net weight of each material load originating from a bituminous production plant and delivered to the project.

entire vehicle rests on the scale platform to weigh it as 1 unit.

not be paid by ticket. The volume will be measured by template, calculated, and converted to the items Unit of Measure. Unless a project specific conversion factor is mutually agreed to by the Department and Contractor, the conversion factors listed at https://deldot.gov/Business/drc/index.shtml?dc=pavement govern.

linear feet.

computations horizontally. The engineer will make no deductions for fixtures having an area of 9 square feet or less such as manholes or utility poles. The engineer will make measurements for area computations using the neat dimensions shown on the plans.

underdrains parallel to the base or foundation the structures rest on.

pounds. Weigh material on scales approved by the State sealer of weights and measures. For materials shipped by rail, the engineer will accept the car weight information provided by the railroad. The engineer will not accept car weights for material that will pass through mixing plants. Ensure that each truck bears a plainly legible identification mark.

weigh material specified for measurement by the cubic yard in the contract. The engineer will convert the weights to volumes for payment purposes. The engineer will determine the factors for converting weight measurement to volume measurement. The engineer and the contractor must mutually agree to conversions before using them. If the engineer and the contractor cannot agree on the conversion factors, the engineer will measure the material by volume in place.

degrees F using ASTM D4311 for asphalt or ASTM D633 for tars.

certified weights or volume, subject to correction for loss or foaming, for computing quantities.

sum for the structure will include all necessary fittings and accessories.

line item on the breakout sheet. The Department will consider the lump sum bid for the respective pay items as the sum of the price items listed on the breakout sheet. Breakout sheets must be submitted with the bid documents or within 7 calendar days following the bid due date by the lowest apparent bidder.

dimensions, the Department will consider this identification as nominal weights or dimensions. Unless more stringently controlled by tolerances specified elsewhere in the contract, the Department will accept manufacturing tolerances established by the industries involved.

109.2Scope of Payment for Unit Prices; Payment of Subcontractors.

materials and for performing work under the contract and for accepting all risk, loss, damage, and expense of any kind arising out of the nature or performance of the work, subject to the provisions of Section 107.13, Contractor’s Responsibility for the Work after Final Acceptance; No Waiver of Legal Rights.

unit price is compensation for certain work or materials used to complete the work for that pay item, the Department will not measure or pay this same work or material under any other pay item appearing in the contract.

in this section) are outlined in the details, notes on the plans, or in the paragraphs preceding the “Basis of Payment” paragraph in these specifications or special provisions, such requirements are included in the payment for the item. No separate payment will be made for the above- mentioned requirements even if those requirements are not expressly reiterated in the “Basis of Payment” section of the specification.

Department stating that all subcontractors that provided labor or material at that stage of the project are paid in full except for funds withheld under the terms of the contract as required by Chapter 8, Title 17 of the Delaware Code, annotated revised 1974, and as amended.

109.3Compensation for Altered Quantities.

shall accept payment at the original contract unit prices for the accepted quantities of work performed. The Department will make no allowance for any increased costs, except as provided in

Sections 104.2, Contract Changes, and 108.11, Termination of the Contract for Convenience, or in any escalation clauses in accordance with the contract.

109.4Compensation for Changes.

contractor provides timely notice in accordance with Section 104.3, Notification of Contract Changes, the engineer will determine the pricing method for the change following the sequence specified below in Sections 109.4.B through D.

constitutes full and complete compensation for performing the change.

The contractor is not entitled to payment for the cost of these materials or mark ups on the value of these materials.

Extensions of Contract Time, the Department will compensate the contractor for the costs associated with the time extension in accordance with Section 109.6, Compensation for Delay.

Allowable Charges, or duplicate payments that may result from the application of Section 109.6, Compensation for Delay, or any other provisions of the contract.

Before proceeding to another pricing method, the engineer will attempt to price and pay for the change using unit prices in the contractor’s proposal. The Department will pay for the change using unit prices when the change incorporates work that does not differ significantly from the work in the original bid.

with Section 109.4.B, Unit Prices, the engineer and the contractor will attempt to negotiate unit or lump sum prices for the changed work using 1 or more of the following methods:

Account.

109.4.D.14, Subcontracting.

pricing, cost justification, and a schedule for performing the changed work.

limits.

Sections 109.4.B, Unit Prices, or C, Negotiated Prices, the engineer may direct the contractor to perform all or part of the change using the force account pricing method. Obtain the engineer’s written approval before proceeding with force account work.

method, the Department will pay the contractor as specified in Sections 109.4.D.5. through 14.

contractor to determine and agree on the labor, equipment, and materials needed to perform the change.

materials are needed to perform the change.

account pricing method if the engineer was not given an opportunity to review and approve the labor, equipment, and materials proposed by the contractor to perform the change and if the contractor did not follow the engineer’s direction when performing the change.

shown on the certified payroll for every hour that the labor and working supervision worked exclusively on the changed work.

in the overhead markup.

managers, superintendents, general foreman, clerical personnel, assistants, and all other management and supervisory personnel as compensated by the mark ups allowed by Section 109.4.D.12, Overhead.

related costs of health and welfare benefits, pension funds, or other benefits, provided those payments are required by a collective bargaining agreement or other employment contract generally applicable to the classes of labor employed to perform the change.

premiums; unemployment insurance contributions; and social security taxes, the Department will compensate the contractor for the actual incremental cost necessarily and directly resulting from the performance of the change.

insurance, and taxes.

provided and used for the changed work.

example, if the change requires fabrication of structural steel, the steel fabricator that purchased the steel to fabricate the structural steel for the change is the material purchaser, not the contractor.

transportation charges paid by the purchaser, except as the following apply:

purchaser, credit that amount to the Department even if the purchaser did not take the discount. ii. For materials obtained from a supplier or source owned wholly or in part by the purchaser, the Department will pay the lowest of the following:

iii. The Department will pay the current wholesale price for materials if it is lower than the contractor’s purchase price from its wholly or partially owned supplier.

from the supplier, the engineer will pay the price paid to the supplier, plus the costs incurred in the handling the materials.

stock, submit an affidavit certifying that the materials came from the contractor’s stock, the quantity was used in the changed work, and the price and transportation costs represent the contractor’s actual costs.

contractor fails to provide substantiation for material costs from the supplier, the Department will pay the lowest current wholesale price for the materials. The Department will pay for the required quantities delivered to the project site, less available cash or trade discounts offered by the actual supplier of the material.

equipment to perform the changed work. ii. Use equipment that the engineer agrees is in good operating condition. iii. Describe the equipment used in detail to document it for payment. iv. Select equipment of suitable size and suitable capacity for the changed work.

vi. In the event the contractor elects to use equipment of a higher rental or hourly ownership cost than is suitable for performing the work associated with the change, the Department will pay the rate applicable to the suitable equipment. vii. If there is a differential in the rate of pay of the operator of oversize or higher-rate equipment, the Department will pay the rate of an operator of the suitable equipment. viii. The Department will not pay for the use of small tools. Small tools are defined as tools or equipment with a daily ownership and operating cost or daily rental rate and operating cost of less than $5.00. The Department will not pay for owned equipment not listed in the Rental Rate Blue Book (Blue Book) published by EquipmentWatch that cost less than $1,500 when new. ix. The Department will pay for subcontractor-owned equipment as "Owned Equipment," as set forth below. The Department will pay for leased or rented equipment or equipment hired from a subcontractor as "Leased, Rented, or Hired Equipment," as set forth below.

hours in a day or 40-hours in a week. xi. The Department will pay standby time for equipment that operated less than 8-hours in a day or less than 40-hours in a week. The Department will base standby time on the difference between the operating time on a normal working day and 8 hours per day or the difference between the operating time in a normal work week and 40 hours per week. xii. The Department will not pay for the time equipment is idle on a day that is not a normal working day.

determined from the Blue Book. ii. Owned equipment is equipment and plant owned directly by the contractor or by entities that are divisions, affiliates, subsidiaries, or in any other way related to the contractor or its parent company. iii. Use the Blue Book in the following manner:

hourly, or daily rates.

perform the changed work.

edition is the one that is current as of the first day of work performed on the change. That rate applies throughout the time it takes to perform the changed work.

tables.

the change. The Blue Book operating rate does not apply to idle time regardless of the cause.

equipment was held on the project site at the engineer’s written request.

above.

a week.

repairs, overhaul, and maintenance of any kind, depreciation, storage, overhead, profits, insurance, incidentals, and all other costs.

rate determined by audit in accordance with Section 107.15, Audits. iv. If owned equipment required for the changed work is not available at the project site, the Department will pay the move-in cost of transporting the equipment to the project site and the move-out cost of moving the equipment off the site in accordance with the following:

equipment to the project site.

than the work associated with the change, the Department will not pay for the move-out costs.

location, the Department will pay a move-out cost that does not exceed the move-in cost.

rates for labor and equipment determined in accordance with the labor and equipment provisions of this specification. The Department will not pay moving costs that exceed the costs of moving the equipment using an independent hauler instead of the contractor’s own forces.

Department will pay the invoice price paid to the hauler and 50 percent of the hourly ownership costs as determined above in accordance with the Blue Book.

rent the equipment and of the rental rate before mobilizing the equipment to the site and using it to perform the changed work. ii. The Department will compensate the contractor for the rented equipment by paying the rental rate for the time it is used to perform the changed work.

iii. The Department will compensate the contractor for the cost of moving the rented equipment on and off the project if the moves are necessary only because of the changed work. iv. For idle rental equipment that must remain on the site because of the engineer’s written directive, the Department will pay for the rented equipment at the rental rate established above for rented equipment, not to exceed 8-hours in a day or 40-hours in a week.

the rental. vi. Provide a copy of the paid receipt or canceled check for the rental expense incurred. vii. The Department will pay the operating costs of rented equipment used for the changed work based on the Blue Book operating costs for the same piece of equipment.

materials used to perform the changed work.

work and all other work.

and foreman. ii. The designation, number, date, daily hours, total hours, rental rate, including a copy of the Blue Book pages used, and extension for each piece of equipment and associated attachments. iii. The quantities of materials, prices, and extensions. Substantiate material costs with copies of vendor's invoices. Submit vendor invoices with the Daily Force Account forms or, if not available that day, submit the invoices with subsequent Daily Force Account forms. Failure to submit vendor's invoices within 60 calendar days after the date of material delivery, or within 15 calendar days after completing the changed work, whichever occurs first, will result in the engineer establishing the material costs. The engineer will use the lowest current wholesale prices for similar materials, available in the quantities used for the changed work, delivered to the project, less any available discounts. iv. The cost of material transportation.

insurances; unemployment insurance contributions; bonds; and social security taxes.

Account form the contractor submitted. ii. The engineer and the contractor will review and attempt to reconcile differences with the Daily Force Account form record. iii. After the engineer and the contractor agree on the content of the Daily Force Account form submitted at the end of the workday, both parties will sign the form.

determining the amount due the contractor. However, the Department may subsequently increase or decrease the compensation paid based on an audit of the contractor’s records. Allow the Department access to force account compensation cost records for inspection or audit in accordance with Section 107.15, Audits.

Force Account form, the Department will use the engineer’s records for payment.

regional managers, managers, supervisors, and engineering, estimating, administrative, and clerical personnel. Home office expenses are expenses incurred by the contractor not charged directly to any one project. These expenses are identified as general and administrative expenses. ii. Field office expenses, including project executives, project managers, general superintendents, superintendents, assistants, and non-working foremen. Field office expenses are expenses incurred by the contractor on a specific project but not charged to a particular item of work. For example, the cost of a job site trailer is a field office expense, but the cost of a cubic yard of concrete used in a bridge footing is not because there is an item, or items, for the bridge work. iii. Cost of small tools, such as shovels, picks, axes, saws, bars, sledges, lanterns, jacks, cables, pails, wrenches, and the cost of other miscellaneous supplies and services. iv. Computers, copiers, and other office equipment.

board (FOB) costs. ii. Direct labor costs calculated in accordance with Item 7 above. iii. Equipment costs calculated in accordance with Item 10 above. iv. The Department may pay for extraordinary overhead expenses, such as hiring of additional supervisory personnel or purchase of a specialty small tool the contractor has to purchase specifically for the changed work. The Department will only pay for extraordinary overhead expenses if the engineer agreed to the costs before the contractor incurred the costs.

ii. Direct labor costs calculated in accordance with Item 7 above.

amount equal to 10 percent for subcontractor work up to $100,000 and five percent on work exceeding $100,000 determined in accordance with Items 7 through 13 above.

accelerate to mitigate excusable delays and accelerating the work will result in added costs, provide notice of a change in accordance with Section 104.3, Notification of Contract Changes.

mitigate an excusable delay instead of granting a time extension.

Section 109.4, Compensation for Changes.

acceleration, the Department will modify Section 109.4.D, Force Account, as follows:

overtime shift premium and the health and welfare benefits, pension fund, or other benefits costs directly related to the overtime shift premium. The Department will pay for benefits required by collective bargaining agreements or other employment contracts applicable to the classes of labor used for the changed work. The Department will also pay for workers compensation insurance premiums, unemployment insurance contributions, and social security taxes.

or during additional shifts. Compensation for this supervision is included in the allowable labor overhead markup.

the same rate used for regular time or normal shifts.

the Department will pay the expediting costs.

Compensation for changed work paid, in accordance with Section 109.4, Compensation for Changes, is full and complete compensation for the changed work, except to the extent that the contractor is also entitled to compensation for an excusable and compensable time extension due to the changed work. The Department will determine the contractor’s entitlement to a compensable time extension in accordance with Section 108.7, Extensions of Contract Time. The Department will determine compensation for the time extension in accordance with Section 109.6, Compensation for Delay.

109.5Non-Allowable Charges.

specified in Sections 109.4.D.12, overhead, and 109.4.D.13,profit, and 109.4.D.14, subcontracting, and 109.6.B.5, percentage markups.

insolvency.

104.2, Contract Changes. Remove profit from the mark-ups allowed in Section 109.4.D.13, Profit.

109.6Compensation for Delay.

Department will pay the costs specified in Section 109.6.B, Allowable Delay Costs.

Allowable Charges, or duplicate payments made under Section 109.4, Compensation for Changes, or other payment provisions in the contract.

those costs using the headings and subheadings of Section 109.6.B, Allowable Delay Costs.

general field supervision, field office facilities and supplies, and for maintenance of field operations. General field supervision labor costs include costs such as project executives, project managers, project engineers, superintendents, assistants, security, clerical, and other field support staff not attributed to specific pay items. Calculate labor costs in accordance with Section 109.4.D.7, Labor.

days.

office equipment rental, temporary toilets, and other field office support costs. Calculate the costs on a calendar-day basis using actual costs incurred due to the delay.

other similar expenses. Calculate the costs on a calendar-day basis using actual costs incurred due to the delay.

personnel remaining on the project as required under collective bargaining agreements or for other engineer-approved reasons.

contractor would have incurred had there been no delay. Calculate labor costs in accordance with Section 109.4.D.7, Labor.

Insurance and Tax.

must remain on the project as a result of the delay.

required on the project during the compensable delay. Calculate the costs of equipment transportation in accordance with Section 109.4.D.10, Equipment.

compensable delay. Obtain the engineer’s written approval before storing material due to a delay. ii. The Department will pay for actual storage costs due to the delay. iii. The Department will pay for material cost escalation by comparing the costs incurred to cost the contractor would have incurred had there been no delay. Calculate material costs in accordance with Section 109.4.D.9.

bond, insurance, and taxes; and idle equipment or equipment mobilization and demobilization costs is allowed to cover home office overhead, profit, and any other costs attributed to the delay for which no specific allowance is provided. This is the only markup allowed for a compensable delay. Markups from Sections 109.4.D.12, overhead, and 109.4.D.13, profit, and 109.4.D.14, subcontracting do not apply.

the engineer with duplicate itemized cost statements as specified in Sections 109.6.B, allowable delay costs, B.1, B.2, B.3, B.4, and B.5 above in accordance with Section 109.4.D.11, daily records.

109.7Basis of Payment for Fixed Quantity Items.

estimated fixed quantity. Where this occurs, the method of measurement and basis of payment indicated in these specifications is modified for such items as identified in this section.

pay for are the estimated quantities shown in the proposal at the unit prices, except in certain situations described below in Sections 109.7.C.1, C.2, and C.3.

labor, equipment, or material required to complete the work in accordance with the contract. The Department will make no allowance or consider claims for quantities used in completing the work in excess of those given in the proposal unless:

change.

item.

performed is more than 25 percent of the estimated fixed quantity.

adjust the payment in accordance with Section 104.2.C, Differing Site Conditions.

to support the claim of a difference in the quantity. If the engineer verifies and approves the difference and the error in the estimated fixed quantity exceeds 25 percent, the Department will compensate the contractor at the unit price for the actual quantity of work performed under the item.

109.8Pay Estimates and Retainage.

The engineer will create a monthly written estimate of the work performed that will include the value of completed work to the estimate date. The Department may retain up to the value of the work performed as security for contract fulfillment. The Department will allow the contractor to substitute securities for this retainage in accordance with Section 6962, Chapter 69, Title 29 of the Delaware Code and as amended. Payment of estimates, except final estimates, will not exceed those shown on the proposal except those authorized by change order. The Department will make no estimates or payments when the work is not proceeding in accordance with the provisions of the contract. The engineer may make estimates more frequently than 1 in each month and may make payments more frequently to the contractor.

109.9Payment for Stored Material.

non-perishable materials or for materials the engineer is confident are safe from contamination after purchase. These are materials the contractor produced or provided in condition-ready use as a permanent part of work not yet completed. In order to receive payment for these materials, meet the following terms and conditions:

inventory statement, written surety consent, and an invoice or purchase order on the supplier’s letterhead documenting the material cost. The Department will make no payment allowance for amounts less than $25,000.00 for each material of a qualifying pay item.

costs, not to exceed 90 percent of the pay item price, when the contractor delivers and stockpiles or stores material in accordance with the contract requirements for the project. The Department will not pay for quantities of material in excess of the estimated quantities listed in the contract.

structures, or other materials used to perform the work but will not become a permanent part of the finished construction.

sand, seed, plants, fertilizer, or perishable material or for material subject to contamination after purchase and before use in the work. The Department will not make a payment allowance for materials that exceed the manufacture’s expiration dates or materials that have an environmental or safety restriction.

stored materials only for the project and not for other projects.

material storage on private property or, for structural members, in the manufacturer's or fabricator's yard. Include a release from the property owner or tenant stating that any fees in the lease agreements for removing the material from the property are the responsibility of the contractor and not the Department. Do not include these fees in any payment requests for material stored outside the project limits.

representative, to inspect and inventory at the storage site at any time.

inventory.

separate item that is subject to the retainage provisions in Section 109.9, Payment for Stored Material.

material supplier, before the engineer processes the next progress estimate. Failure to submit proof of payment before the engineer processes the progress payment will result in a

deduction of the applicable material payment in its entirety from progress payments until the engineer receives proof of payment.

Department pays for the work the contractor uses the material for under the applicable unit prices, the Department will deduct an equal percentage of the material payment the Department previously made from the progress estimates until the Department has deducted percent of the total payment.

deduct the cost of materials remaining in storage that the Department paid for in accordance with Section 109.9.A.2, Materials, from the progress estimate.

109.10Withholding of Money Due on an Estimate to Offset a Contractor’s Liability

Payment of any current or final estimate or of any retained percentage will not affect the contractor’s obligation to repair or replace defective parts of the construction or the contractor’s responsibility for damage due to such defects.

Department against any lien or claim the Department might become liable for and which is chargeable to the contractor, out of any payment then due or to become due. If there is a claim after the Department has made all contract payments, provide a refund to the Department for costs the Department paid to discharge liens that resulted from the contractor’s neglect or default.

amount. The Department will hold the balance of the retained amount until the contractor delivers all required reports to the Department and the Department authorizes final payment. The Department may retain temporarily or permanently a smaller amount and may pay the contractor temporarily or permanently the portion of the amount retained as the Department deems equitable.

obligation on the part of the State or the Department to any subcontractor, supplier, or materialman.

109.11Final Payment and Time Limit to Challenge Quantities

Initial Expense, De-Mobilization, after contract completion. The Department will pay the entire sum due after deducting from all previous payments all amounts to be kept and all amounts to be retained under the provisions of the contract. The Department will use the final estimate to reconcile errors in partial estimates and payments previously made. Provide notice to the engineer of alleged errors in the payment of contract quantities. Provide the notice within 120 calendar days of the date when the engineer finalizes the contract quantities. The engineer will notify the contractor after the engineer finishes finalizing the quantities. Failure to notify the engineer within this time frame constitutes a waiver of the contractor’s right to contest the quantities. Nothing in this section prevents the engineer from performing audits of the engineer’s records or the contractor’s records and to adjust payment based on the audit results in accordance Section 107.15, Audits.

Department, the Secretary, and its agents from all claims of liability under the contract, or for anything done or furnished or relating to the work under the contract, or for any act or neglect of the State, the Department, the Secretary, or its agents relating to or connected with the contract.

109.12Source of Supply and Carrier Rates on Construction Materials

carrier rates and transportation facilities for these materials before submitting proposals.

the source the contractor based its bid on, changes in carrier, or the alteration of transportation facilities for these materials during the life of the contract as cause for a claim for extra compensation.

109.13Transportation Tax Exemption

paying on materials entering into, and forming a part of, the project.

materials consigned to the State, in care of itself, provide the supplier with a statement certifying that the contractor is authorized to claim the exemption, identifying the contract the Department gave authorization in and instructing the supplier to make the shipment involved free of tax.