MEASUREMENT AND PAYMENT SECTION 109 95 1. Extended, under -absorbed, or unabsorbed home office overhead or profit in excess of that specified in Section s 109.4.D.12, overhead , and 109.4.D. 13,profit , and 109.4.D. 14, subcontracting , and 109.6.B.5 , percentage markups .
2.Consequential damages, including loss of bonding capacity, loss of bidding opportunities, or insolvency.
3.Inefficiency or loss of productivity.
4.Indirect costs.
5.Attorney's fees or other costs of dispute resolution, arbitration, or litigation.
6.Claim preparation expenses.
7.Interest.
8.The Department will not pay for profit on costs of suspensions or delays as specified in Section 104.2 , Contract Changes . Remove profit from the mark -ups allowed in Section 109.4.D.13 , Profit .
9.All other costs not specifically allowed by Section 109.4 , Compensation for Changes . 109.6 Compensation for Delay.
A.General.
1.For compensable delays identified in Section 108.7, Extensions for Contract Time, the Department will pay the costs specified in Section 109.6.B , Allowable Delay Costs .
2.The Department will not pay for non -allowable charges specified in Section 109.5, Non - Allowable Charges, or duplicate payments made under Section 109.4 , Compensation for Changes, or other payment provisions in the contract.
3.The Department will pay for delay costs if the contractor submits an itemized statement of those costs using the headings and subheadings of Section 109.6.B , Allowable Delay Costs .
B.Allowable Delay Costs.
1.Extended Field Office Expenses.
a.The Department will pay for extended field office expenses resulting from a delay, including general field supervision, field office facilities and supplies, and for maintenance of field operations. General field supervision labor costs include costs su ch 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
b.To calculate the daily wage rate paid for salaried personnel, divide the weekly salary by 7 - days.
c.Field office facility and supply costs include items such as field office trailers, tool trailers, 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.
d.Maintenance of field operations costs include items such as telephone, electric, water, and other similar expenses. Calculate the costs on a calendar -day basis using actual costs incurred due to the delay. MEASUREMENT AND PAYMENT SECTION 109 96 2. Idle Labor and Labor Escalation.
a.Calculate labor costs during delays as specified in Section 109.4.D.7, Labor , for all non -salaried personnel remaining on the project as required under collective bargaining agreements or for other engineer -approved reasons.
b.Calculate labor cost escalation by comparing the labor costs incurred to the labor cost the contractor would have incurred had there been no delay. Calculate labor costs in accordance with Section 109.4.D.7 , Labor .
3.Bond, Insurance, and Taxes.
a.Calculate bond, insurance, and tax costs in accordance with Section 109.4.D.8 , Bond, Insurance and Tax .
4.Idle Equipment or Equipment Mobilization and Demobilization.
a.The Department will compensate the contractor for equipment, other than small tools, that must remain on the project as a result of the delay.
b.Calculated the costs of idle equipment in accordance with Section 109.4.D.10 , Equipment .
c.The Department will pay the transportation costs to remove and return equipment not required on the project during the compensable delay. Calculate the costs of equipment transportation in accordance with Section 109.4.D.10 , Equipment .
d.Material Escalation or Material Storage.
i.The Department will pay for increased material costs or material storage costs due to a 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.
5.Percentage Markups.
a.An additional 10 percent markup on: field office expenses; idle labor and labor escalation; bond, insurance, and taxes; and idle equipment or equipment mobilization and demobilization costs is allowed to cover home office overhead, profit, and any other co sts 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.
6.Records.
a.The Department will not compensate the contractor for delays until the contractor provides 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 . 109.7 Basis of Payment for Fixed Quantity Items. MEASUREMENT AND PAYMENT SECTION 109 97 A. When indicated by the contract, the Department will pay certain items on the basis of an estimated fixed quantity. Where this occurs, the method of measurement and basis of payment indicated in these specifications is modified for such items as identifi ed in this section.
B.When the contract indicates estimated fixed quantities, the only quantities the Department will 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.
C.When bidding, check the estimates provided in the contract and appraise the actual amount of labor, equipment, or material required to complete the work in accordance with the contract. The Department will make no allowance or consider claims for quanti ties used in completing the work in excess of those given in the proposal unless:
1.The contractor encounters a differing site condition that causes the estimated fixed quantity to change.
2.The engineer adds or deletes work to the contract that increases or decreases a fixed quantity item.
3.The contractor contests the fixed quantity and can show that the actual quantity of the work performed is more than 25 percent of the estimated fixed quantity.
D.When differing site conditions cause an estimated fixed quantity to change, the engineer will adjust the payment in accordance with Section 104.2.C , Differing Site Conditions .
E.In cases where the contractor contests a fixed quantity, provide measurements and computations 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 excee ds 25 percent, the Department will compensate the contractor at the unit price for the actual quantity of work performed under the item. 109.8 Pay 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 Departme nt 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 ex cept 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. 109.9 Payment for Stored Material.
A.The engineer may include an allowance in the pay estimate for the value of tested and accepted 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:
1.Request. MEASUREMENT AND PAYMENT SECTION 109 98 a. Provide a written request for payment of stored materials accompanied by an itemized 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 payme nt allowance for amounts less than $25,000.00 for each material of a qualifying pay item.
2.Materials.
a.The Department will make a payment allowance of 100 percent of the contractor’s material 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 f or the project. The Department will not pay for quantities of material in excess of the estimated quantities listed in the contract.
b.The department will pay for tested and accepted material only.
3.Excluded Materials.
a.The Department will make no payment for fuels, form lumber, falsework, temporary structures, or other materials used to perform the work but will not become a permanent part of the finished construction.
b.The Department will make no payment allowance for stockpiled or stored cement, aggregate, 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.
4.Storage.
a.Store materials in a manner approved by the engineer in areas where damage is unlikely. Use stored materials only for the project and not for other projects.
b.When it is not practical to store materials within the project limits, the engineer may approve 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 ten ant 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.
5.Materials Inventory.
a.Ensure that materials are available for the engineer, or the engineer’s authorized representative, to inspect and inventory at the storage site at any time.
6.Materials Measurement and Payment.
a.Provide materials measured in units acceptable to the engineer that the engineer can easily inventory.
b.The engineer will include payment for materials in the progress estimate as a new and separate item that is subject to the retainage provisions in Section 109.9 , Payment for Stored Material .
c.Submit proof of payment for materials to the engineer in the form of a paid invoice from the material supplier, before the engineer processes the next progress estimate. Failure to submit proof of payment before the engineer processes the progress payme nt will result in a 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 105–109 of 779.