8-1 Subletting or Assigning of Contracts.
Do not, sell, transfer, assign or otherwise dispose of the Contract or Contracts or any portion thereof, or of the right, title, or interest therein, without written consent of the Department. If the Contractor chooses to sublet any portion of the Contract , the Contractor must submit a written request to sublet work on the Certification of Sublet Work form developed by the Department for this purpose. With the Engineer’s acceptance of the request, the Contractor may sublet a portion of the work, but shall p erform with its own organization work amounting to not less than 40% of the total Contract amount. The Certification of Sublet Work request will be deemed acceptable by the Department, for purposes of the Department’s consent, unless the Engineer notifies the Contractor within 5 business days of receipt of the Certification of Sublet Work that the Department is not consenting to the requested subletting. Include in the total Contract amount the cost of materials and manufactured component products, and the ir transportation to the project site. For the purpose of meeting this requirement the Department will not consider off -site commercial production of materials and manufactured component products that the Contractor purchases, or their transportation to th e project, as subcontracted work. If the Contractor sublets a part of a Contract item, the Department will use only the sublet proportional cost in determining the percentage of subcontracted normal work. Execute all agreements to sublet work in writing and include all pertinent provisions and requirements of the Contract. All other agreements must be in writing and reference all applicable Contract provisions. Upon request, submit to the Department a copy of the subcontract and agreement. The subletting of work does not relieve the Contractor or the surety of their respective liabilities under the Contract. The Department recognizes a subcontractor only in the capacity of an employee or agent of the Contractor, and the Engineer may require the Contractor to remove the subcontractor as in the case of an employee.
8-2 Work Performed by Equipment -Rental Agreement.
The limitations set forth in 8 -1, concerning the amount of work that may be sublet, do not apply to work performed by equipment -rental agreement. However, for any work proposed to be performed by equipment -rental agreement, notify the Engineer in writing of such intention before using the rented equipment, and indicate whether the equipment will be rented on an operated or non -operated basis. Inclu de with the written notice a listing and description of the equipment and a description of the particular work to be performed with such equipment. As an exception to the above requirements, the Department will not require written notice for equipment to b e rented (without operators) from an equipment dealer or from a firm whose principal business is the renting or leasing of equipment. The operators of all rented equipment, whether rented on an operated or a non -operated basis, are subject to all wage rat e requirements applicable to the project. When renting equipment without operators, the Contractor shall carry the operators on his own payroll. For equipment that is rented on an operated basis, and when required by the Contract or requested by the Engine er, submit payrolls from the lessor with the names of the operators shown thereon. FY 2023-24 Return to Table of Contents When a lessor provides rentals of equipment on an operated basis that exceed $10,000, such lessor is subject to any Equal Employment Opportunity requirements that are appli cable to the project.
8-3 Prosecution of Work.
8-3.1 Compliance with Time Requirements: Commence work in accordance with the
accepted working schedule and provide sufficient labor, materials, and equipment to complete the work within the time limit(s) set forth in the proposal. Should the Contractor fail to furnish sufficient and suitable equipment, forces, and materials, as necessary to prosecute the work in accordance with the required schedule, the Engineer may withhold all estimates that are, or may become due, or suspend the work until the Contractor corrects such deficiencies.
8-3.2 Submission of Contract Schedule: Within 21 calendar days after Contract award
or at the preconstruction conference, whichever is earlier, submit to the Engineer a Contract Schedule for the project. The Engineer will review and respond to the Contractor within 15 calendar days of receipt. Provide a Contract S chedule that shows the various activities of work in sufficient detail to demonstrate a reasonable and workable plan to complete the project within the Contract Time. Show the order and interdependence of activities and the sequence for accomplishing the work. Describe all activities in sufficient detail so that the Engineer can readily identify the work and measure the progress on of each activity. Show each activity with a beginning work date, a duration, and a monetary value. Include activities for procurement fabrication, and delive ry of materials, plant, and equipment, and review time for shop drawings and submittals. Include milestone activities when milestones are required by the Contract Documents. In a project with more than one phase, adequately identify each phase and its completion date, and do not allow activities to span more than one phase. Conduct sufficient liaison and provide sufficient information to indicate coordination activities with utility owners that have facilities within the limits of construction have been resolved. Incorporate in the Contract S chedule any utility work schedules included in the Contract Documents unless the utility company and the Department mutually agree to changes to the utility schedules shown in the Contract. Submit a working plan with the Contract S chedule, consisting of a concise written description of th e construction plan. The Engineer will return inadequate Contract S chedules to the Contractor for corrections. Resubmit a corrected schedule within 15 calendar days from the date of the Engineer’s return transmittal. Submit an updated Contract Schedule, for Engineer’s acceptance, if there is a significant change in the planned order or duration of an activity. The Engineer will review the corrected schedule and respond within 7 calendar days of receipt. By acceptance of the Contract S chedule, the Engi neer does not endorse or otherwise certify the validity or accuracy of the activity durations or sequencing of activities. The Engineer will use the accepted schedule as the baseline against which to measure the progress. If the Contractor fails to final ize either the initial or a revised Contract S chedule in the time specified, the Engineer may withhold all Contract payments until the Engineer accepts the schedule. The Contract Schedule may indicate a completion date in advance of the expiration of Con tract Time. However, the Department will not be liable in any way for the FY 2023-24 Return to Table of Contents Contractor’s failure to complete the project prior to expiration of Contract Time. Any additional costs, including extended overhead incurred between the Contractor’s scheduled compl etion date and the expiration of Contract Time, shall be the responsibility of the Contractor. The Contractor shall not be entitled to claim or recover any such costs from the Department.
8-3.3 Beginning Work: Notify the Engineer not less than five days i n advance of the
planned start day of work. Upon the receipt of such notice, the Engineer may give the Contractor Notice to Proceed and may designate the point or points to start the work. In the Notice to Proceed, the Engineer may waive the five-day advance notice and authorize the Contractor to begin immediately. Notify the Engineer in writing at least two days in advance of the starting date of important features of the work. Do not commence work under the Contract until after the Department has issued t he Notice to Proceed. The Department will issue the Notice to Proceed within 20 calendar days, excluding Saturdays, Sundays and Holidays, after execution of the Contract.
8-3.4 Provisions for Convenience of Public: Schedule construction operations so as to
minimize any inconvenience to adjacent businesses or residences. Where necessary, the Engineer may require the Contractor to first construct the work in any areas along the project where inconveniences caused by construction operations would present a m ore serious handicap. In such critical locations, where there is no assurance of continuous effective prosecution of the work once the construction operations are begun, the Engineer may require the Contractor to delay removal of the existing (usable) faci lities.
8-3.5 Preconstruction Conference: Immediately after awarding the Contract but before
the Contractor begins work, the Engineer will call a preconstruction conference at a place the Engineer designates to go over the construction aspects of the proj ect. Attend this meeting, along with the Department and the various utility companies that will be involved with the road construction.
8-4 Limitations of Operations.
8-4.1 Night Work: During active nighttime operations, furnish, place and maintain
lighting sufficient to permit proper workmanship and inspection. Use lighting with 5 ft-cd minimum intensity. Arrange the lighting to prevent interference with traffic or produce undue glare to property owners. Operate such lighting only during active nighttime construction activities. Provide a light meter to demonstrate that the minimum light intensity is being maintained. Lighting may be accomplished by the use of portable floodlights, standard equipment lights, existing street lights, temporary street light s, or other lighting methods approved by the Engineer. Submit a lighting plan at the Preconstruction Conference for review and acceptance by the Engineer. Submit the plan a s a PDF file, in the same scale as the Plans, and formatted on 11 inch by 17 inch sheets. Do not start night work prior to the Engineer’s acceptance of the lighting plan. During active nighttime operations, furnish, place and maintain variable message signs to alert approaching motorists of lighted construction zones ahead. Operate th e variable message signs only during active construction activities. Include compensation for lighting for night work in the Contract prices for the various items of the Contract. Take ownership of all lighting equipment for night work. FY 2023-24 Return to Table of Contents
8-4.2 Sequence o f Operations: Do not open up work to the prejudice of work already
started. The Engineer may require the Contractor to finish a section on which work is in progress before starting work on any additional section.
8-4.3 Interference with Traffic: At all times conduct the work in such manner and in
such sequence as to ensure the least practicable interference with traffic. Operate all vehicles and other equipment safely and without hindrance to the traveling public. Park all private vehicles outside the clea r zone. Place materials stored along the roadway so as to cause no obstruction to the traveling public as possible. Where existing pavement is to be widened and stabilizing is not required, prevent any open trench from remaining after working hours by sc heduling operations to place the full thickness of widened base by the end of each day. Do not construct widening strips simultaneously on both sides of the road, except where separated by a distance of at least 1/4 mile along the road and where either the work of excavation has not been started or the base has been completed.
8-4.4 Coordination with other Contractors: Sequence the Work and dispose of
materials so as not to interfere with the operations of other Contractors engaged upon adjacent work; coordinate the Work, including the placement of work zone signs and temporary traffic control devices, to that of others in a proper manner, in accordance with the spirit of the Contract Documents; and perform the work in the proper sequence in relation to tha t of other Contractors; all as may be directed by the Engineer. Each Contractor is responsible for any damage done by it or its agents to the adjoining work being performed by another Contractor.
8-4.5 Drainage: Conduct the operations and maintain the w ork in such condition to
provide adequate drainage at all times. Do not obstruct existing functioning storm sewers, gutters, ditches, and other run -off facilities.
8-4.6 Fire Hydrants: Keep fire hydrants on or adjacent to the highway accessible to fire
apparatus at all times, and do not place any material or obstruction within 15 feet of any fire hydrant.
8-4.7 Protection of Structures: Do not operate heavy equipment close enough to pipe
headwalls or other structures to cause their displacement.
8-4.8 Fencing: Erect permanent fence as a first order of business on all projects that
include fencing where the Engineer determines that the fencing is necessary to maintain the security of livestock on adjacent property, or for protection of pedestrians who are likely to gain access to the project from adjacent property.
8-4.9 Contaminated Materials: When the construction operations encounter or expose
any abnormal condition that may indicate the presence of a contaminated material, discontinue such operations i n the vicinity of the abnormal condition and notify the Engineer immediately. Be alert for the presence of tanks or barrels; discolored or stained earth, metal, wood, ground water; visible fumes; abnormal odors; excessively hot earth; smoke; or other condi tions that appear abnormal as possible indicators of the presence of contaminated materials. Treat these conditions with extraordinary caution. Make every effort to minimize the spread of any contaminated materials into uncontaminated areas. Do not resume the construction operations in the vicinity of the abnormal conditions until so directed by the Engineer. FY 2023-24 Return to Table of Contents Dispose of the contaminated material in accordance with the requirements and regulations of any Local, State, or Federal agency having jurisd iction. Where the Contractor performs work necessary to dispose of contaminated material, and the Contract does not include pay items for disposal, the Department will pay for this work as provided in 4 -4. The Department agrees to hold harmless and indem nify the Contractor for damages when the Contractor discovers or encounters contaminated materials or pollutants during the performance of services for the Department when the presence of such materials or pollutants were unknown or not reasonably discover able. Such indemnification agreement is only effective if the Contractor immediately stops work and notifies the Department of the contaminated material or pollutant problem. Such indemnification agreement is not valid for damages resulting from the Contractor’s willful, wanton, or intentional conduct or the operations of Contaminated and Hazardous Material Contractors.
8-5 Qualifications of Contractor’s Personnel.
Provide competent, careful, and reliable superintendents, foremen, and workmen. Provide workmen with sufficient skill and experience to properly perform the work assigned to them. Provide workmen engaged on special work, or skilled work, such as bituminous courses or mixtures, concrete bases, pavements, or structures, or in any trade, with suff icient experience in such work to perform it properly and satisfactorily and to operate the equipment involved. Provide workmen that shall make due and proper effort to execute the work in the manner prescribed in the Contract Documents, or the Engineer ma y take action as prescribed below. It is prohibited as a conflict of interest for a Contractor to subcontract with a Consultant to perform Contractor Quality Control when the Consultant is under contract with the Department to perform work on any project described in the Contractor’s Contract with the Department. Prior to approving a Consultant for Contractor Quality Control, the Contractor shall submit to the Department a Certificate from the proposed Consultant certifying that no conflict of interest exi sts. Whenever the Engineer determines that any person employed by the Contractor is incompetent, unfaithful, intemperate, disorderly, or insubordinate, the Engineer will provide written notice and the Contractor shall discharge the person from the work. D o not employ any discharged person on the project without the written consent of the Engineer. If the Contractor fails to remove such person or persons, the Engineer may withhold all estimates that are or may become due, or suspend the work until the Contr actor complies with such orders. Protect, defend, indemnify, and hold the Department, its agents, officials, and employees harmless from all claims, actions, or suite arising from such removal, discharge, or suspension of employees.
8-6 Temporary Suspensio n of Contractor’s Operations.
8-6.1 Authority to Suspend Contractor’s Operations: The Engineer has the authority
to suspend the Contractor’s operations, wholly or in part. The Engineer will order such suspension in writing, giving in detail the reasons fo r the suspension. Contract Time will be charged during all suspensions of Contractor’s operations. The Department may grant an extension of Contract Time in accordance with 8 -7.3.2 when determined appropriate in the Department’s sole judgment. No additio nal compensation or time extension will be paid or granted to the Contractor when the operations are suspended for the following reasons:
1.The Contractor fails to comply with the Contract Documents. FY 2023-24 Return to Table of Contents
2.The Contractor fails to carry out orders given by the Engineer.
3.The Contractor causes conditions considered unfavorable for continuing the Work. Immediately comply with any suspension order. Do not resume operations until authorized to do so by the Engineer in writing. Any operations performed by the Contractor, and otherwise constructed in conformance with the provisions of the Contract, after the issuance of the suspension order and prior to the Engineer’s authorization to resume operations will be at no cost to the Department. Further, failu re to immediately comply with any suspension order will also constitute an act of default by the Contractor and is deemed sufficient basis in and of itself for the Department to declare the Contractor in default, in accordance with 8 -9, with the exception that the Contractor will not have ten calendar days to correct the conditions for which the suspension was ordered.
8-6.1 1 State of Emergency: The Engineer has the authority to suspend the
Contractor’s operations, wholly or in part, pursuant to a Govern or’s Declaration of a State of Emergency. The Engineer will order such suspension in writing, giving in detail the reasons for the suspension. Contract Time will be charged during all suspensions of Contractor’s operations. The Department, at its sole disc retion, may grant an extension of Contract Time and reimburse the Contractor for specific costs associated with such suspension. Further, in such instances, the Department’s determination as to entitlement to either time or compensability will be final, unless the Contractor can prove by clear and convincing evidence to a Disputes Review Board that the Department’s determination was without any reasonable factual basis .
8-6.2 Prolonged Suspensions: If the Engineer suspends the Contractor’s operations for
an indefinite period, store all materials in such manner that they will not obstruct or impede the traveling public unnecessarily or become damaged in any way. Take every reasonable precaution to prevent damage to or deterioration of the work performed. Pro vide suitable drainage of the roadway by opening ditches, shoulder drains, etc., and provide any temporary structures necessary for public travel through the project.
8-6.3 Permission to Suspend Contractor’s Operations: Do not suspend operations or
remove equipment or materials necessary for completing the work without obtaining the Engineer’s written permission. Submit all requests for suspension of operations in writing to the Engineer, and identify specific dates to begin and end the suspension. The Con tractor is not entitled to any additional compensation for suspension of operations during such periods.
8-6.4 Suspension of Contractor’s Operations - Holidays and Special Events: Unless
the Contractor submits a written request to work during one or more days of a Holiday or Special Event at least ten calendar days in advance of the beginning date of the Holiday or Special Event and receives written approval from the Engineer, the Contractor shall not work on the following days: Martin Luther King, Jr. Day ; Memorial Day; the Saturday and Sunday immediately preceding Memorial Day; Independence Day; Independence Day (Observed); Labor Day; the Friday, Saturday, and Sunday immediately preceding Labor Day; Veterans Day; Veterans Day (Observed); the Wednesday imm ediately preceding Thanksgiving Day; Thanksgiving Day; the Friday, Saturday and Sunday immediately following Thanksgiving Day; December 24 through January 2, inclusive; and Special Events noted in the Contract Documents . Contract Time will be charged during these Holiday and Special Event periods. Contract Time will be adjusted in accordance with 8 -7.3.2. The Contractor is not entitled to any additional compensation beyond any allowed Contract Time adjustment for suspens ion of operations during such Holiday and Special Event periods. FY 2023-24 Return to Table of Contents During such suspensions, remove all equipment and materials from the clear zone, except those required for the safety of the traveling public and retain sufficient personnel at the job site to properly meet the requirements of Sections 102 and 104. The Contractor is not entitled to any additional compensation for removal of equipment from clear zones or for compliance with Section 102 and Section 104 during such Holiday and Special Event per iods.
8-7 Computation of Contract Time.
8-7.1 General: Perform the contracted work fully, entirely, and in accordance with the
Contract Documents within the Contract Time specified in the proposal, or as may be extended in accordance with the provisions h erein below. The Department considers in the computation of the Contract Time the effect that utility relocation and adjustments have on job progress and the scheduling of construction operations required in order to adequately maintain traffic, as detai led in the Plans or as scheduled in the Special Provisions.
8-7.2 Date of Beginning of Contract Time: The date on which Contract Time begins is
either the date on which the Contractor actually begins work, or the date for beginning the charging of Contrac t Time as set forth in the proposal; whichever is earlier.
8-7.3 Adjusting Contract Time:
8-7.3 1 Increased Work: The Department may grant an extension of Contract
Time when it increases the Contract amount due to overruns in original Contract items, ad ds new work items, or provides for unforeseen work. The Department will base the consideration for granting an extension of Contract Time on the extent that the time normally required to complete the additional designated work delays the Contract completio n schedule.
8-7.3 2 Contract Time Extensions: The Department may grant an extension of
Contract Time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. The Department may allow such extensi on of time only for delays occurring during the Contract Time period or authorized extensions of the Contract Time period. When failure by the Department to fulfill an obligation under the Contract results in delays to the controlling items of work, the De partment will consider such delays as a basis for granting a time extension to the Contract. Whenever the Engineer suspends the Contractor’s operations, as provided in 8-6, for reasons other than the fault of the Contractor, the Engineer will grant a time extension for any delay to a controlling item of work due to such suspension. The Department will not grant time extensions to the Contract for delays due to the fault or negligence of the Contractor. The Department does not include an allowance fo r delays caused by the effects of inclement weather or suspension of Contractor’s operations as defined in 8 -6.4, in establishing Contract Time. The Engineer will continually monitor the effects of weather and, when found justified, grant time extensions o n either a bimonthly or monthly basis. The Engineer will not require the Contractor to submit a request for additional time due to the effects of weather. The Department will grant time extensions, on a day for day basis, for delays caused by the effect s of rains or other inclement weather conditions, related adverse soil conditions or suspension of operations as defined in 8 -6.4 that prevent the Contractor from productively performing controlling items of work resulting in:
1.The Contractor being u nable to work at least 50% of the normal work day on pre -determined controlling work items; or FY 2023-24 Return to Table of Contents
2.The Contractor must make major repairs to work damaged by weather, provided that the damage is not attributable to the Contractor’s failure to perform or neglect; and provided that the Contractor was unable to work at least 50% of the normal workday on pre-determined controlling work items. When the Department grants a time extension due to rains or other inclement weather, the Contractor shall submit an y objection to the additional time in writing within ten calendar days from receipt of written notice from the Engineer. Failure to submit a written appeal within ten calendar days from receipt of the written notice shall constitute a waiver of any and all rights to appeal the Department’s decision at a later time. No additional compensation will be made for delays caused by the effects of inclement weather. The Department will consider the delays in delivery of materials or component equipment that a ffect progress on a controlling item of work as a basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. Such delays may include an area -wide shortage, an industry -wide strike, or a natural disaster that af fects all feasible sources of supply. In such cases, the Contractor shall submit substantiating letters from a representative number of manufacturers of such materials or equipment clearly confirming that the delays in delivery were the result of an area -wide shortage, an industry -wide strike, etc. No additional compensation will be made for delays caused by delivery of materials or component equipment. The Department will not consider requests for time extension due to delay in the delivery of custom ma nufactured equipment such as traffic signal equipment, highway lighting equipment, etc., unless the Contractor submits documentation that he placed the order for such equipment in a timely manner, the delay was caused by factors beyond the manufacturer’s c ontrol, and the lack of such equipment caused a delay in progress on a controlling item of work. No additional compensation will be paid for delays caused by delivery of custom manufactured equipment. The Department will consider the effect of utility r elocation and adjustment work on job progress as the basis for granting a time extension only if all the following criteria are met:
1.Delays are the result of either utility work that was not detailed in the Plans, or utility work that was detailed i n the Plans but was not accomplished in reasonably close accordance with the schedule included in the Contract Documents.
2.Utility work actually affected progress toward completion of controlling work items.
3.The Contractor took all reasonable measures to minimize the effect of utility work on job progress, including cooperative scheduling of the Contractor’s operations with the scheduled utility work at the preconstruction conference and providing adequate advance notification to utility compan ies as to the dates to coordinate their operations with the Contractor’s operations to avoid delays. The Department will consider requests for time extension due to delay in work operations within the limits of the railroad right -of-way, the adjoining 15 feet, or determined by the Railroad or Department to be able to potentially foul the tracks regardless of distance from railroad right -of-way on job progress as the basis for granting a time extension only if all the following criteria are met: FY 2023-24 Return to Table of Contents
1.Delays are due to a lack of availability of Railroad protective services as required by 7-11.4.
2.Work within the limits of the railroad right -of-way or the adjoining 15 feet actually impacted progress toward completion of controlling work items .
3.The Contractor took all reasonable measures to minimize the effect of work operations within the limits of the railroad right -of-way or the adjoining 15 feet on job progress, including complianc e with all provisions of 7-11.4 and 5-12, and cooperative scheduling of the Contractor’s operations. As a condition precedent to an extension of Contract Time the Contractor must submit to the Engineer: A preliminary request for an extension of Cont ract Time must be submitted in writing to the Engineer within ten calendar days after the commencement of a delay to a controlling item of work. If the Contractor fails to submit this required preliminary request for an extension of Contract Time, the Cont ractor fully, completely, absolutely and irrevocably waives any entitlement to an extension of Contract Time for that delay. In the case of a continuing delay only a single preliminary request for an extension of Contract Time will be required. Each such p reliminary request for an extension of Contract Time shall include as a minimum the commencement date of the delay, the cause of the delay, and the controlling item of work affected by the delay. Furthermore, the Contractor must submit to the Engineer a request for a Contract Time extension in writing within 30 days after the elimination of the delay to the controlling item of work identified in the preliminary request for an extension of Contract Time. Each request for a Contract Time extension shall i nclude as a minimum all documentation that the Contractor wishes the Department to consider related to the delay, and the exact number of days requested to be added to Contract Time. If the Contractor contends that the delay is compensable, then the Contra ctor shall also be required to submit with the request for a Contract Time extension a detailed cost analysis of the requested additional compensation. If the Contractor fails to submit this required request for a Contract Time extension, with or without a detailed cost analysis, depriving the Engineer of the timely opportunity to verify the delay and the costs of the delay, the Contractor waives any entitlement to an extension of Contract Time or additional compensation for the delay. Upon timely receip t of the preliminary request of Contract Time from the Contractor, the Engineer will investigate the conditions, and if it is determined that a controlling item of work is being delayed for reasons beyond the control of the Contractor the Engineer will take appropriate action to mitigate the delay and the costs of the delay. Upon timely receipt of the request for a Contract Time extension the Engineer will further investigate the conditions, and if it is determined that there was an increase in the time or the cost of performance of the controlling item of work beyond the control of the Contractor, then an adjustment of Contract Time will be made, and a monetary adjustment will be made, excluding loss of anticipated profits, and the Contract will be modified in writing accordingly. The existence of an accepted schedule, including any required update(s), as stated in 8 -3.2, is a condition precedent to the Contractor having any right to the granting of an extension of Contract Time or any monetary compensati on arising out of any delay. Contractor failure to have an accepted schedule, including any required update(s), for the period of potential impact, or in the event the currently accepted schedule and applicable updates do not accurately reflect the actual status of the project or fail to accurately show the true controlling or non - FY 2023-24 Return to Table of Contents controlling work activities for the period of potential impact, will result in any entitlement determination as to time or money for such period of potential impact being limited solely to the Department’s analysis and identification of the actual controlling or non -controlling work activities. Further, in such instances, the Department’s determination as to entitlement as to either time or compensability will be final, unless the Contractor can prove by clear and convincing evidence to a Disputes Review Board that the Department’s determination was without any reasonable factual basis.
8-8 Failure of Contractor to Maintain Satisfactory Progress.
8-8.1 General: Pursue the work to c ompletion: Section 337.16 of the Florida Statutes
establishes certain requirements pertaining to the suspension or revocation of a Contractor’s Certificate of Qualification because of delinquency on a previously awarded Contract.
8-8.2 Regulations Governi ng Suspension for Delinquency:
1.A Contractor is delinquent when the Contract Time for performing the work has expired, and the Contractor has not completed the Contract work.
2.Once the Department determines that the Contractor is delinquent, the Department will give the Contractor written notice of intent to suspend the Contractor’s Certificate of Qualification. If the Contractor disagrees with the delinquency, the Contractor shall file a request for an administrative hearing with the Clerk of Agency Proceedings within ten days of receipt of the notice of intent to suspend. If the Contractor does not file a request, the Department will make the suspension conclusive and final. The request for hearing is filed when the Contractor del ivers it to, and it is received by, the Clerk of Agency Proceedings, Mail Station 58, Room 562, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450.
3.If the Contractor files a request for a hearing, the Department will schedule the hearing within 30 days of the hearing officer’s receipt of the request.
4.The Department will continue the period of suspension of the Contractor’s Certificate of Qualification until the Contractor is no longer delinquent. If the Contractor requests an administrative hearing, the Department's final order, depending on the outcome of the hearing, will set forth the time period of suspension for the number of days the Department determines that the Contractor was delinquent, even if the Contractor cure s the delinquency during the pendency of the administrative proceedings.
5.During the period of suspension of the Contractor’s Certificate of Qualification, the Department will not allow the Contractor and its affiliates to bid on any Department Contract, regardless of dollar amount, and will not approve the Contractor as a subcontractor on any Department contract.
6.The Department may grant extensions of time during the prosecution of the work as allowed under these Specifications regardless of the C ontractor’s delinquency status.
8-9 Default and Termination of Contract.
8-9.1 Determination of Default: The following acts or omissions constitute acts of
default and, except as to subparagraphs 9 and 11, the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor:
1.fails to begin the work under the Contract within the time specified in the Notice to Proceed;
2.fails to perform the work with sufficient workmen and equipment or w ith sufficient materials to ensure prompt completion of the Contract; FY 2023-24 Return to Table of Contents
3.performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable;
4.discontinues the prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so;
5.becomes insolvent or is declared bankrupt, or files for reorganization under the bankruptcy code, or commits a ny act of bankruptcy or insolvency, either voluntarily or involuntarily;
6.allows any final judgment to stand against him unsatisfied for a period of ten calendar days;
7.makes an assignment for the benefit of creditors;
8.fails to comply with Con tract requirements regarding minimum wage payments or EEO requirements;
9.fails to comply with the Engineer’s written suspension of work order within the time allowed for compliance and which time is stated in that suspension of work order; or
10.for any other cause whatsoever, fails to carry on the work in an acceptable manner, or if the surety executing the bond, for any reasonable cause, becomes unsatisfactory in the opinion of the Department.
11.fails to comply with 3 -9. For a notice based u pon reasons stated in subparagraphs (1) through (8) and (10): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will, upon written certificate from the Engineer of the fact of such delay, neglect, or default and the Contractor’s failure to correct such conditions, have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the Contractor in default. If the Contractor, after having received a prior notice described above for any reason stated in subparagraph (2), (3), (4), (5), (6) or (8), commits a second or subsequent act of default for any reas on covered by the same subparagraph (2), (3), (4), (5), (6) or (8) as stated in the prior notice, and regardless whether the specific reason is the same, then, regardless of whether the Contractor has cured the deficiency stated in that prior notice, the D epartment will, upon written certificate from the Engineer of the fact of such delay, neglect or default and the Contractor’s failure to correct such conditions, have full power and authority, without any prior written notice to the Contractor and without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the Contractor in default. Regarding subparagraph (9), if the Contractor fails to comply with the Engineer’s written suspension of work order wi thin the time allowed for compliance and which time is stated in that suspension of work order, the Department will, upon written certificate from the Engineer of the fact of such delay and the Contractor’s failure to correct that condition, have full power and authority, without violating the Contract, to immediately take the prosecution of the work out of the hands of the Contractor and to declare the Contractor in default. Regarding subparagraph (11), if the Contractor fails to comply with 3 -9, the Department will have full power and authority, without violating the Contract, to immediately take the prosecution of the work out of the hands of the Contractor and to declare the Contractor in default. The Department has no liability for anticipated profi ts for unfinished work on a Contract that the Department has determined to be in default. FY 2023-24 Return to Table of Contents Notwithstanding the above, the Department shall have the right to declare the Contractor (or its “affiliate”) in default and immediately terminate this Contract, wi thout any prior notice to the Contractor, in the event the Contractor (or its “affiliate”) is at any time “convicted” of a “contract crime,” as these terms are defined in Section 337.165(1), Florida Statutes. The Department’s right to default the Contracto r (or its “affiliate”) for “conviction” of a “contract crime” shall extend to and is expressly applicable to any and all Department Contracts that were either advertised for bid; for which requests for proposals or letters of interest were requested; for w hich an intent to award was posted or otherwise issued; or for which a Contract was entered into, after the date that the underlying or related criminal indictment, criminal information or other criminal charge was filed against the Contractor (or its “aff iliate”) that resulted in the “conviction.” In the event the Department terminates this Contract for this reason, the Contractor shall hereby forfeit any claims for additional compensation, extra time, or anticipated profits. The Contractor shall only be p aid for any completed work up to the date of termination. Further, the Contractor shall be liable for any and all additional costs and expenses the Department incurs in completing the Contract work after such termination.
8-9.2 Termination of Contract for Convenience: The Department may terminate the
entire Contract or any portion thereof, if the Secretary determines that a termination is in the Department’s interest. The Secretary will deliver to the Contractor a Written Notice of Termination specifying t he extent of termination and the effective date. When the Department terminates the entire Contract, or any portion thereof, before the Contractor completes all items of work in the Contract, the Department will make payment for the actual number of unit s or items of work that the Contractor has completed, at the Contract unit price, and according to the formulas and provisions set forth in 4 -3.2 for items of work partially completed, and such payments will constitute full and complete compensation for such work or items. No payment of any kind or amount will be made for items of work not started. The Department will not consider any claim for loss of anticipated profits, or overhead of any kind (including home office and jobsite overhead or other indirect impacts) except as provided in 4 -3.2 for partially completed work. The Department will consider reimbursing the Contractor for actual cost of mobilization (when not otherwise included in the Contract) including moving equipment to the job where the volu me of the work that the Contractor has completed is too small to compensate the Contractor for these expenses under the Contract unit prices. The Department may purchase at actual cost acceptable materials and supplies procured for the work, that the Department has inspected, tested, and approved and that the Contractor has not incorporated in the work. Submit the proof of actual cost, as shown by receipted bills and actual cost records, at such points of delivery as the Engineer may designate. Termination of a contract or a portion thereof, under the provisions of this Subarticle, does not relieve the Contractor or the surety of its responsibilities for the completed portion of the Contract or its obligations for and concerning any just claims arisin g out of the work performed. All Contractor claims for additional payment, due to the Department’s termination of the entire Contract or any portion thereof, must meet the requirements of 5 -12.
8-9.3 Completion of Work by Department: Upon declaration of default, the
Department will have full authority to appropriate or use any or all suitable and acceptable materials and equipment on the site and may enter into an agreement with others to complete the work under the Contract, or may use other methods to complete the work in an acceptable FY 2023-24 Return to Table of Contents manner. The Department will charge all costs that the Department incurs because of the Contractor’s default, including the costs of completing the work under the Contract, against the Contractor. If the Department incurs such costs in an amount that exceeds the sum that would have been payable under the Contract, then the Contractor and the surety shall be liable and shall pay the Department the amount of the excess. If, after the ten day notice period and prior to any a ction by the Department to otherwise complete the work under the Contract, the Contractor establishes his intent to prosecute the work in accordance with the Department’s requirements, then the Department may allow the Contractor to resume the work, in whi ch case the Department will deduct from any monies due or that may become due under the Contract, any costs to the Department incurred by the delay, or from any reason attributable to the delay.
8-10 Liquidated Damages for Failure to Complete the Work.
8-10.1 Highway Code Requirements Pertaining to Liquidated Damages:
Section 337.18, paragraph (2) of the Florida Statutes, requires that the Department adopt regulations for the determination of default and provides that the Contractor pay liquidated damages to the Department for any failure of the Contractor to complete the Contract work within the Contract Time. These Code requirements govern, and are herewith made a part of the Contract.
8-10.2 Amount of Liquidated Damages : Applicable liquidated damages are the
amounts established in the following schedule: Original Contract Amount Daily Charge Per Calendar Day $299,999 and under ................................ ........................ $980 $300,000 but less than $2 ,000,000.............................. $1,699 $2,000,000 but less than $5 ,000,000........................... $2,650 $5,000,000 but less than $ 10,000,000......................... $3,819 $10,000,000 but less than $ 20,000,000....................... $4,687 $20,000,000 but less than $ 40,000,000 ....................... $7,625 $40,000,000 and over ............... $10,467 plus 0.00005 of any amount over $ 40 million (Round to nearest whole dollar) The Engineer may approve adjustments to the liquidated damages amounts in accordance with the Construction Project Administration Manual (CPAM) provided all contract work is complete.
8-10.3 Determination of Number of Days of Default: For all contracts, regardless of
whether the Contract Time is stipulated in calendar days or working days, the Engineer will count default days in calendar days.
8-10.4 Conditions under which Liquidated Damages are Imposed: If the Contractor
or, in case of his default, the surety fails to complete the work within the time stipulated in the Contract, or within such extra time that the Department may have granted then the Contractor or, in case of his default, the surety shall pay to the Department, not as a penalty, but as liquidated damages, the amount so due as determined by the Code requirements, as provided in 8 -10.2.
8-10.5 Right of Collection: The Department has the right to apply, as payment on such
liquidated damages, any money the Department owes the Contractor. FY 2023-24 Return to Table of Contents
8-10.6 Allowing Contractor to Finish Work: The Department does not waive its right
to liquidated damages due under the Contract by allowing the Contractor to continue and to finish the work, or any part of it, after the expiration of the C ontract Time.
8-10.7 Completion of Work by Department: In the case of a default of the Contract and
the completion of the work by the Department, the Contractor and his surety are liable for the liquidated damages under the Contract, but the Department wi ll not charge liquidated damages for any delay in the final completion of the Department’s performance of the work due to any unreasonable action or delay on the part of the Department.
8-11 Release of Contractor’s Responsibility.
The Department considers the Contract complete when the Contractor has completed all work and the Department has accepted the work. The Department will then release the Contractor from further obligation except as set forth in his bond, and except as provided in 5 -13.
8-12 Recove ry of Damages Suffered by Third Parties.
In addition to the damages provided for in 8 -10.2 and pursuant to Section 337.18 of the Florida Statutes, when the Contractor fails to complete the work within the Contract Time the Department may recover from the Contractor amounts that the Department pays for damages suffered by third parties unless the failure to timely complete the work was caused by the Department’s act or omission. FY 2023-24 Return to Table of Contents SECTION 9 MEASUREMENT AND PAYMENT
9-1 Measurement of Quantities.
9-1.1 Measurement Standards: The Engineer will measure all work completed under
the Contract in accordance with the United States Standard Measures.
9-1.2 Method of Measurements: The Engineer will take all measurements horizontally
or vertically.
9-1.3 Determination of Pay Areas:
9-1.3 1 Final Calculation: When measuring items paid for on the basis of area of
finished work, where the pay quantity is designated to be determined by calculation, the Engineer will use lengths and widths in the calculations based on the station to stat ion dimensions shown in the Plans; the station to station dimensions actually constructed within the limits designated by the Engineer; or the final dimensions measured along the surface of the completed work within the neat lines shown in the Plans or des ignated by the Engineer. The Engineer will use the method or combination of methods of measurement that reflect, with reasonable accuracy, the actual surface area of the finished work as the Engineer determines.
9-1.3 2 Plan Quantity: When measuring item s paid for on the basis of area of
finished work, where the pay quantity is designated to be the plan quantity, the Engineer will determine the final pay quantity based on the plan quantity subject to the provisions of 9 -3.2. Generally, the Engineer will c alculate the plan quantity using lengths based on station to station dimensions and widths based on neat lines shown in the Plans.
9-1.4 Construction Outside Authorized Limits: The Engineer will not pay for surfaces
constructed over a greater area than au thorized, or for material that the Contractor has moved from outside of slope stakes and lines shown in the Plans, except where the Engineer provides written instruction for the Contractor to perform such work.
9-1.5 Truck Requirements : Provide all trucks with numbers and certify that all trucks
used have a manufacturer’s certification or permanent decal showing the truck capacity rounded to the nearest tenth of a cubic yard placed on both sides of the truck. This capacity will include the truck body only and any side boards added will not be included in the certified truck body capacity. Ensure the lettering and numbers are legible for identification purposes at all times.
9-1.6 Ladders and Instrument Stands for Bridge Projects: On bridge projects, in
order to facilitate necessary measurements, provide substantial ladders to the tops of piers and bents, and place and move such ladders as the Engineer directs. For bridge projects crossing water or marshy areas, supply fixed stands for instrument mounting and measurements, in accordance with the details stipulated in the Specifications for the project.
9-2 Scope of Payments.
9-2.1 Items Included in Payment: Accept the compensation as provided in the Contract
as full payment for furnishing all materials and for performing all work contemplated and embraced under the Contract; also for all loss or damage arising out of the nature of the work or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise or be encounter ed in the prosecution of the work until its final acceptance; also for all other costs incurred under the provisions of Division I. FY 2023-24 Return to Table of Contents
Source: Florida Standard Specifications for Road and Bridge Construction, 2024 Edition. Pages 95–108 of 1,299.