for Highway Construction Page 87 of 715 SECTION 108 – PROSECUTION, PROGRESS, AND TERMINATION
108.01 Subletting of Contract .
A.General Do not sublet, sell, transfer, assign, or otherwise dispose of the contract or portion of the contract or of the right, title, or interest in the contract without written consent. If the Engineer consents to subletting a portion of the work, the Contractor will use its own organization to perform work amounting to at leas t 50 percent of the original contract amount for contracts that involve federal -aid funding and 20 percent for state- funded contracts. The phrase “its own organization” includes only workers employed and paid directly, inclusive of employees who are employed by a lease agreement acceptable to the Department, and equipment owned or rented with or without operators, and does not include employees or equipment of a subcontractor, assignee, or agent of the Contractor. Calculate this percentage using the following equati on: 100S OCX ×−= Where: X = Percentage of work performed by the Contractor’s own organization (%). C = Contract amount of work performed by the Contractor’s own organization ($). O = Original contract amount ($) . S = Contract amount of specialty items ($), if included in the contract. If the contract requires contract pay items to be performed at stipulated prices or invoice prices and these items are not on the bid schedule, add the prices of these items to the original contract amount to determine the minimum percentage specified above. Submit written quotations as support for invoice prices. Do not allow a subcontractor to work until the subcontract or’s execut ed agreement (the subcontract) with the Contractor, including the required attachments and addenda, is approved. All subcontractors must have a Unique Entity Identifier (UEI) prior to Engineer approval of subcontractor agreement. Neither of th e following relieves or releases the Contractor or the surety of their responsibilities or liability under the contract or the contract bonds :
1.The Engineer’s consent to subcontract work.
2.The subcontract . Subcontracting does not create a contract between the Department and the subcontractor. The subcontractor gains no rights and the Department accepts no responsibilities by reason of the subcontractor’s contract with the Contractor. The Contractor is responsible for the work performed.
B.Change in Ownership If there is a change in ownership from one contractor to another, the new company must provide legal documentation showing the change in ownership. If approved by the D epartment’s Legal section , the following must occur: For Contracts that are already executed and in progress , it will be the responsibility of the new owner once the following is provided: for Highway Construction Page 88 of 715 1. The District will work with the Department’s Legal section to obtain an “Assig nment of Contract ” executed agreement in place.
2.New owner will provide updated insurance certificate showing the project is covered under their policy.
3.New owner will provide updated payment and performance bonds listing the new company name.
4.The new owner will provide a letter stating the names and titles of those who have authority to sign change order s, payments, etc. For Contracts yet to be awarded, the Department will issue a new contract with the new owner's name. All insurance and bonds should be in the new company name.
108.02 Contract Time .
A.General. Contract time starts as stated in the special provisions. Do not begin work until the contract is fully executed as specified in 103.05. Achieve substantial completion within the contract time. The Engineer will not charge contract time after substantial completion as determined and written by the Engineer, as long as the Contractor diligently performs the remaining work.
B.Working Day Contracts. Beginning with the start of work specified in 108.02.A, the Engineer will assess working days for all days except as specified in 101.04. The Engineer will assess working days if the Contractor is not performing work on the critical path and nonperformance is due to causes that the Contractor could have foreseen, control led, or prevented. The Engineer will prepare and provide to the Contractor a monthly statement showing the number of working days charged for the preceding month and the number of working days remaining in the contract time. If the Contractor disagrees with the working days assessed, the Contractor may give notice on the monthly statement as specified in 104.03.
C.Calendar Day Contracts. Beginning with the start of work specified in 108.02.A, the Engineer will assess contract time for all calendar days.
D.Completion Date Contracts. For completion date contracts, the contract time concludes on the specified contract completion date.
108.03 Project Schedule .
A.General. Develop and maintain a project schedule that represents the scope of work required by the contract and the proposed sequence of operations. Include activities with reasonable durations for work that is the Department’s responsibility. Reasonable is defined as “customary or normal” for the type of work involved or as required by the contract. The schedule will include the critical path. The critical path will typically be the for Highway Construction Page 89 of 715 path with the least amount of total float. The critical path may follow different activity paths at different times during work per formance due to the work progress or revisions made to the schedule. Float before substantial completion is not for the exclusive use or benefit of either party, but is a resource available to either party on a first -come, first -served basis as needed. Float after substantial completion is owned by the Contractor. Notify the Engineer at least 2 business days before stopping work, resuming work, or changing the project schedule. The cost of preparing, updating, and revising the schedules is incidental to other contract pay items . The Department’s schedule acceptance does not relieve the Contractor of its responsibilities to adjust labor, equipment, or work schedules and to provide sufficient materials to substantially complete the work within the contract time. Acceptance does not modify the contract or constitute endorsement or validation by the Engineer of the Contractor’s logic, activity durations, or assumptions in creating the schedule. Submit a critical path method (CPM) schedule including the following minimum requirements:
1.Created in a software format that is compatible with the most current version of Microsoft Proj ect.
2.Includes activities required to complete the work, including, but not limited to, engineering, surveying, permitting, submittals, re submittals, approvals, procurement, fabrication, deliveries, crushing, utility work, and third- party work.
3.Includes milestones, interim completion dates, substantial completion date, and contract completion date.
4.Describes activities that make the work readily identifiable.
5.Identifies the scheduled early and late start and finish dates for each activity.
6.Limits activity durations to 20 working days, unless otherwise allowed by the Engineer.
7.Limits activity relationships to finish -to-start, start -to-start, and finish -to-finish relationships. Leads and lags may be used when applicable.
8.Uses only contractual date constraints.
9.Defines the work calendar for each activity. Submit with the CPM schedule:
1.A narrative that describes the major equipment and assumed production rates for the major work activities.
2.A description on how the number of anticipated weather days as specified in Table 108.07- 1 have been incorporated into the schedule; only required for calendar and completion date contracts. Submit each CPM schedule in a format acceptable to the Engineer and in a format compatible with the m ost current version of Microsoft Project, including:
1.Time Scaled Logic Diagram. Submit the time-scaled logic diagram with the following:
a.Plot the logic diagram on plotted sheets with a horizontal time scale that is the project calendar. Ensure each activity’s duration and dates are plotted on the horizontal time scale. for Highway Construction Page 90 of 715 b. Submit the logic diagram using an approved sheet size.
c.Ensure the activity information includes activity numbers, activity descriptions, durations, total float, and scheduled or actual start and finish dates. The time- scaled logic diagram must clearly show sequence activities and interdep endence for the required work performance and show the critical path.
2.Predecessor and Successor Report. The predecessor and successor report will define the schedule logic. It will clearly show logical relationships and constraints.
3.Bar Chart Printout. Ensure the bar chart printout includes the following for each activity:
a.Activity number or ID.
b.Activity description.
c.Activity calendar.
d.Original duration.
e.Remaining duration.
f.Percent complete.
g.Early or actual start and finish dates.
h.Late start and finish dates.
i.Total float.
B.Initial Schedule. Submit the initial schedule for review at or before the preconstruction conference. The initial schedule must meet the requirements and show that substantial completion can be achieved within the contract time. When approved, the Contractor may submit a preliminary schedule defining the Contractor’s planned operation for the first 60 calendar days after the award date and indicating the Contractor’s general approach for the remaining work. Meet with the Engineer to jointly review, correct, and adjust the initial schedule wi thin 10 calendar days after submitting the initial schedule. Resubmit the initial schedule for acceptance within 10 calendar days after the meeting. If the Engineer does not accept the resubmitted schedule, repeat this process. Do not begin work until the initial schedule has been approved.
C.Monthly Update Schedules. Attend monthly onsite proj ect progress meetings to update the schedule. The Engineer and the Contractor will review progress to verify actual start and finish dates, remaining duration, percent complete of uncompleted work activities, and proposed schedule revisions. It is the Cont ractor’s responsibility to provide the Engineer with work activities status at this progress meeting, and prepare schedule updates based on this information once it has been verified and agreed upon. for Highway Construction Page 91 of 715 Each month, submit the updated schedule reflecting progr ess. Submit a written narrative describing the project schedule status, the critical path, and schedule revisions w ith the schedule update. Resubmit the schedule update if it does not contain the agreed- on as -built information. At the Engineer’s written request, and within 7 calendar days after written request receipt, submit a revised schedule as specified in 108.03.A if the actual work is, as determined by the Engineer, significantly different than that represented on the current schedule. The Department will provide the Contractor with one of the following responses within 10 calendar days after the Department’s receipt of the revised schedule:
1.Accept the revised schedule.
2.Reject the schedule and identify the reasons for rej ection.
3.Request more information. Address the reasons for rejection or submit the information requested within 10 calendar days after the Department’s request.
D.Final Schedule. Submit a final schedule with the written notice of completion once the Engineer deems the work completed, as specified in 105.15, that reflects actual start and finish dates for each work activity. The Department will not grant final acceptance as specified in 105.15 until the Engineer receives and accepts the final schedule.
108.04 Preconstruction and Preoperational Conference s.
Meet with the Engineer for a preconstruction conference at a mutually agreed time. At or before the preconstruction conference, submit the following to the Engineer:
1.Initial schedule as specified in 108.03.B.
2.List of material suppliers and subcontr actors.
3.WH-5 public works contract report.
4.A quality control plan as specified in the QASP .
5.Other r equested information. Meet with the Engineer for preoperational conferences before beginning a new phase of work.
108.05 Limitation of Operations .
Do not start an operation impacting traff ic until traffic control devices are approved and completely installed. Perform the work in a manner and sequence that will ensure the least interference with traffic. The Contractor is responsible for the location of detour s and provisions for handling traffic. Access the project site only at existing interchange ramps, public road connections, or approaches. The Engineer may require the Contractor to finish a project section before starting on additional project sections if the section opening is essential for public convenience. Do not work on a roadway open to the traveling public, except for normal maintenance operations, during a 3-day holiday weekend or on July 3, 4, and 5. for Highway Construction Page 92 of 715 108.06 Methods, Equipment, and Character of Workers. Provide sufficient labor and equipment for completing the work i n a satisfactory manner and within the contract time. Employ workers with suf ficient skill and experience to properly perform the work assigned to them. If, as determined by the Engineer, a person employed by the Contractor or its subcontractor does not perform the work in a proper and skillful manner or is intemperate or disorderl y, the Engineer will issue a written direction for removal of the person. Do not employ the removed person in any fut ure work portions without approval. If the Contractor does not do the following, the Engineer may suspend the work by wr itten notice until the Contractor complies with the contract :
1.Remove person or persons as required in this subsectio n.
2.Provide suitable and sufficient labor and equipment for the work. Ensure the equipment used on a portion of the pr oject does not damage the roadway, adjacent property , or other highways. Park unattended equipment at least 30 feet off the traveled way. If the posted speed limit for the traveled way is 40 mph or less, the Engineer may approve parked equipment at least 10 feet off the traveled way. Use the methods and equipment required by the contract . If the Contractor desires to use a method or equipment type other than those specified in the contract, submit a written reques t that includes a full description of the proposed method, equipment, and the reasons for making the change. If the Engineer approves the change, the Contractor is fully responsible for performing the work as required by the contract. If, after trial use o f the substituted methods or equipment, the Engineer determines the work produced does not meet the requirements, discontinue the substi tuted method or equipment use and complete the remaining work with the method and equipment required by the contract. Remove the deficient work and replace it with work of specified quality, or take such other corrective action as directed. Changed methods or equipment approvals do not modify the contract amount or the contract time. If the methods and equipment required to complete a specific work portion are not specified in the contract , the Contractor may use any methods or equipment that will satisfactorily complete the work.
108.07 Extension of Contract Time .
A.General. The Engineer will extend the contract time by issuing a change order if an excusable delay, as specified in
108.07 B, 108.07.D, or 108.07.F, extends the scheduled substantial completion date. The Engineer will only consider a request to revise contract time if the fol lowing conditions are met:
1.Notice as specified in 104.03.
2.Documentation from the project schedule, including updates, justifies the time extension. The Engineer will evaluate the information submitted and d etermine the time extension , if any. The Contractor’s request that insufficient contract time was specified is not a valid reason for a time extension. for Highway Construction Page 93 of 715 Time is of the essence in the Contractor’s performance of the contract . Delays inconvenience the traveling public, obstruct traffic, interfere with an d delay commerce, and increase highway user risk. Delays also increase the Department’s costs, adding time needed for administration, engineering, inspection , and supervision. It is essential, and in the public’s interest, the Contractor work vigorously to contract c ompletion. Time extensions will not be granted for delays incurred during the months of December, January, and February, unless the Contractor’s accepted project schedule shows the delayed work was sc heduled to be performed during this time period and was critical at the time of the delay. If contract time is extended, the Department will relieve the Contractor from associated liquidated damages, as specified in 108.08.
B.Excusable, Noncompensable Delays. Excusable, noncompensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility, and could not have been reasonably foreseen or anticipated by the Contractor before bid. A time extension will be granted, if justified as specified in 108.07.A, but the Contractor will not be paid for costs incurred due to the delays. The following are examples of excusable, noncompensable delays:
1.Delays due to floods, tornad oes, lightning strikes, earthq uakes, or other cataclysmic natural phenomena.
2.Weather delay as specified in 108.07.C.
3.Unavoidable material delivery delays resulting from freight embargoes, government acts, or area- wide material shortages. This applies to the Contractor and its subcontractors or suppliers. Delays due to the Contractor’s and its subcontractors or suppliers, insolvency, or mismanagement are not excusable.
4.Delays due to civil disturbances.
5.Delays from fires or epidemics.
6.Delays fr om labor strikes that are beyond the Contractor’s, its subcontractor’s, or supplier’s power to settle and are not caused by the Contractor’s, its subcontractor’s, or supplier’s improper acts or omissions.
7.Added quantities that delay w ork on the critical path.
8.Delays due to acts of the government or a political subdivision other than the Department.
9.Delays from damage to temporary or permanent work.
C.Extension to the Contract Time for Weather. For calendar day and completion date contracts, the contract time will be extended 1 day for each lost critical path work day caused by weather that exceeds the reasonably anticipated weather day s per month as listed in Table 108.07- 1. for Highway Construction Page 94 of 715 TABLE 108.07- 1 – Anticipated Weather Days per Month Number of Working Days Lost Due to Weather by District Month D1 D2 D3 D4 D5 D6 January 10 7 8 8 8 8 February 7 6 6 6 6 6 March 7 6 6 6 6 6 April 5 6 4 4 4 4 May 5 6 4 5 5 5 June 4 4 2 3 3 3 July 1 1 1 1 1 1 August 1 1 1 1 1 1 September 2 1 1 1 1 1 October 4 3 2 1 1 1 November 9 6 6 5 5 5 December 11 7 7 7 7 7 Weather experienced on weekends or holidays will not be considered as lost working days, unless the Contractor normally works on those days or if directed to work on those days.
D.Excusable, Compensable Delays. Excusable, compensable delays are delays that are caused only by the Department. The contract time will be extended for the following excusable, compensable delays, if the conditions specified in 108.07.A are met:
1.Delays due to contract revisions as defined in 104.02.B, 104.02.C , 104.02.E, or 104.02.F.
2.Delays due to utility interference within the project site as defined in 105.07.
3.Delays due to an Engineer -ordered suspension as defined in 104.02.D.
4.Delays due to the actions or neglect of the Department or its failure to act. Pay will be determined for excusable, compensable delays as specified in 109.03.D.
E.Nonexcusable Delays. Nonexcusable delays are noncompensable. Time extensions will not be granted for nonexcusable delays. for Highway Construction Page 95 of 715 F. Concurrent Delays. When a nonexc usable delay is concurrent with an excusable (compensable or noncompensable) delay, the Contractor is not entitled to a time extension or additional pay for the period the nonexcusable delay is concurrent with the excusable delay. When an excusa ble, noncompensable delay is concurrent with an excusable, compensable delay, the Contractor is entitled to a time extension but no additional pay for the period the noncompensable delay is concurrent with the compensable delay.
108.08 Failure to Complete on Time .
If the contract time expires, liquidated damages will be assessed as noted in the special provisions of the contract documents for each day the work remains substantially incomplete after the contract time or its most recent extension has expired. The daily rate will be assessed per working day for working day contracts and per calendar day for calendar day and completion date contracts. Liquidated damages are not a penalty. The Engineer will determine working days for the assessment of liquidated damages as specified in 108.02.B. For calendar day and completion date contracts, the Engineer will not exclude days during December, January, and February. Liquidated damages will be deducted from monies due to the Contractor or will be billed to the Contractor. Liquidated damages will not be assessed after substantial completion of the work as evidenced in writing, as long as the Contractor performs the remaining work. Allowing the Contractor to continue and finish the work after the contract time expires in no way operates as a waiver on the part of the Department of its rights under the contract.
108.09 Default and Termination of Contract .
If the Contractor is responsible for any of the following, the Engineer may provide written notice to the Contractor and surety of the delay, neglect, or default:
1.Failing to begin the work by the date specified in the notification of award.
2.Failing to perform the work with sufficient labor and equipment or with sufficient materials to ensure work completion within the contract time.
3.Performing the work unsuitably and neglecting or refusing to remove materials or to replace unacceptable or unsuitable work.
4.Discontinuing the work.
5.Failing to resume previously discontinued work within a reasonable time after notice to do so.
6.Becoming insolvent, being declared bankrupt, or committing an act of bankruptcy or insolvency.
7.Making an assignment for the benefit of creditors.
8.Failing to carry on the work in an acceptable manner. If, within 10 calendar days after written notice receipt, the Contractor or surety does not respond as specified by the notice, the Department will have full power and authority, without violating the contract, to remove the work from the Contractor. The Department may appropriate or use suitable and acceptable materials and equipment within the project site, may enter into an agreement for contract completion in accordance with the terms and provisions of the contract, or use other methods that, in the Engineer’s opini on, are necessary for work completion as required by the contract. for Highway Construction Page 96 of 715 The Department will deduct the costs and charges, incurred for work completion under the contract from amounts due or that may become due to the Contractor. If the amount exceeds the sum that would have been payable under the contract, then the Contractor and the surety will be liable and will pay to the Department the excess amount. If, after termination of the contract, it is determined the Contractor was not in default, t he rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Department as specified in 108.10.
108.10 Termination for Convenience of the Department .
A.General. The Department may terminate the contract in whole or in part for:
1.Executive Orders of the President of the United States or the Governor of Idaho.
2.Court restraining orders based on acts or omissions of persons or agencies other than the Contractor.
3.Conditions determined to be in the Department’s best interest. The Department will detail the specifics on the termination and the effective date in a notice of termination.
B.Submittals and Procedures. On receipt of a notice of termination:
1.Stop work as specified.
2.Enter into no new subcontra cts, nor order materials, services, or facilities, except as approved to complete any remaining contract portion.
3.Terminate all subcontracts to the extent they relate to terminated work.
4.Settle outstanding liabilities and termination settlement proposals.
5.Transfer title and deliver to the Department:
a.Unfabricated or partially fabricated parts, work in process, completed work, supplies, and other material produced or acquired for the terminated work.
b.Completed or partially completed plans, drawings, information, and other property required to be submitted to the Department if the contract had been completed.
6.Complete work not terminated.
7.Coordinate a time and date with the Engineer to inventory materials obtained but not yet used.
8.Take necessary or directed action to protect contract related property that is in the Contractor’s possession and in which the Department has or may have an int erest.
C.Settlement Provisions. Accept final payment for:
1.Completed work items at the contract bid price.
2.Eliminat ed work as specified in 104.02.F.
3.Partially completed work at agreed prices or as follows: for Highway Construction Page 97 of 715 a. Submit a claim f or additional damages or costs not covered above or elsewhere in the contract within 60 calendar days of the termination date.
b.Subm it cost documentation. Exclude anticipated profits on work not completed. Ensure the claim is less than the total contract price, reduced by the amount of previous payments, and the contract price of nonterminated work. On reaching agreement on the claimed costs, the Department will amend the contract and make payment .
D.Disputed Settlement. If the Department does not agree with the Contractor’s claimed costs, the Department will make payment as follows, but without duplicating amounts agreed on under 108.10.C:
1.For contract work performed before the effective termination date, the total of:
a.The cost of work completed.
b.The cost of settling and paying termination settlement pr oposals under terminated subcontracts properly chargeable to the termination portion of the contract if not included in 108.10.D.1.a.
c.Profit on 108.10.D.1.a., determined by the Department to be reasonable. The Department will exclude profi t under this sectio n if the Contractor’s costs for work performed exceed the bid item payments made.
2.Reason able terminated work settlement costs, including:
a.Accounting, legal, clerical, and other expenses reasonably necessary to prepare termination settlem ent proposals and support data.
b.Subcontract termination and settlement, excluding the settlement amounts.
c.Storage, transportation, and other costs incurred that are reasonably necessary to preserve, protect, or dispose of the termination inventory.
3.Except for normal spoilage and to the extent the Department accepts the risk of loss, the Department will exclude the fair value of destroyed, stolen, or damaged material.
4.The following will be deducted to arrive at the amount due to the Contractor:
a.Unliquidated advances or other payments under the terminated portion of the contract .
b.Department claims against the Contractor under the contract .
c.The agreed on price or the proceeds from the sale of materials, supplies, or other items acquired and sold by the Contractor, but not covered by or credited to the Department.
E.Partial Termination. Submit a proposal for an adjustment of the price(s) of the continued port ion of the contract within 90 calendar days of the effective termination date. Submit supporting information. The Department will make agreed upon adjustments. The Department may establish terms and conditions for making partial payments against costs incurred by the Contractor for the terminated portion of the contract. P rovide access to contract cost records for Department audit . Request approval to maintain photographs, microphotogr aphs, or other accurate reproductions rather than original records and documents. Termination does not relieve the Contractor of responsibility for work completed. for Highway Construction Page 98 of 715 SECTION 109 – MEASUREMENT AND PAYMENT
109.01 Measurement of Quantities.
The Engineer will measure the contract pay item quantities, except for items that require the Contractor to provide survey measurement as specified in 675, using the units of measure specified in the contract and the methods of measurement and calculation as specified in this section . The U.S. customary system of weights and measures units is defined in 15 CFR. Unless otherwise agreed upon by the Engineer, progress payments will not be issued for items requiring survey measurement until the Engineer has received a statement of quantities, along with supporting documentation and calculations, signed and sealed by a licensed Idaho professional engineer or professional land surveyor. Measurements will be rounded as specified in Table 109.01-1 , unless otherwise specified . Table 109.01- 1 – Standard Rounding Pay Unit Rounding Acre / Acre Unit (AU) 0.001 Contingency Amount (CA) 0.01 Cubic Foot (CF) 0.1 Cubic Yard (CY) 0.1 Day 1 Each 1 Foot ( FT) 0.5 Gallon (gal) 1 Hour (hr) 0.5 Lump Sum (LS) 0.001 Mile 0.01 Month 1 Pound (lb) 1 Square Foot (SF) 0.1 Square Yard (SY) 0.1 Station (Sta) 0.01 Thousand Feet Board Measure (MFBM) 0.001 Thousand Gallons (MG) 1 Ton 0.01 For standard manufactured materials identified by gauge, thickness, unit weight, or section dimensions, the Department will consider these as nominal weights and dimensions, and accept industry established manufacturing tolerances. The Engineer will measure contract pay item quantities by the actual quantity or by the plan quantity, as required by the contract.
Source: Idaho Standard Specifications for Highway Construction, 2023 Edition. Pages 123–133 of 768.