MEASUREMENT AND PAYMENT SECTION 109 99 deduction of the applicable material payment in its entirety from progress payments until the engineer receives proof of payment.
d.As the contractor uses the materials that the Department paid for separately and as the 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 pa yment the Department previously made from the progress estimates until the Department has deducted 100 percent of the total payment.
e.At the conclusion of the work that the contractor used the materials for, the Department will 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.
109.10 Withholding of Money Due on an Estimate to Offset a Contractor’s Liability.
A.The Department will deduct the cost of liquidated damages from the monthly and final estimates. 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 th e construction or the contractor’s responsibility for damage due to such defects.
B.The Department has the right to retain an amount sufficient to completely indemnify the 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.
C.Upon substantial completion of the work, the engineer may release 60 percent of the retained amount. The Department will hold the balance of the retained amount until the contractor delivers all required reports to the Department and the Department auth orizes 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.
D.Do not interpret any provision contained in these specifications as creating any debt, liability or obligation on the part of the State or the Department to any subcontractor, supplier, or materialman.
109.11 Final Payment and Time Limit to Challenge Quantities.
A.The engineer will make a final estimate of the work performed in accordance with Section 763 , 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 reco ncile errors in partial estimates and payments previously made. Provide notice to the engineer of alleged errors in the paymen t 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 engi neer 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 .
Source: Delaware Standard Specifications for Road and Bridge Construction, 2025 Edition. Pages 109–109 of 779.