SECTION 105 CONTROL OF WORK
105.01 Authority of Department Personnel.
105.01.01 Authority of the Engineer. The Engineer will decide all questions
regarding the quality and acceptability of materials furnished, work performed, and the rate of progress of the work; all interpretation of the Plans and Specifications; and the acceptable fulfillment of the Contract. The Engineer will, in writing, suspend the work, wholly or in part when the Contractor fails to correct conditions unsafe for the workmen or the general public; for failure to carry out Contract provisions; for failure to carry out orders; for periods of unsuitable weather; for conditions unsuitable for the prosecution of the work; or for any other condition or reason determined to be in the public interest. The Engineer will decide all questions concerning the interpretation of the Contract relating to the work, and all questions concerning the acceptable fulfillment of the work performed by the Contractor. The Engineer will determine the quantity and quality of the several kinds of work performed and materials furnished that the Department will pay for under the Contract, and such decision and estimate will be final and conclusive. In case any question arises, the Engineer’s estimate will be a condition precedent to the right of the Contractor to receive any money due under the Contract. The Contractor may appeal to the Commissioner any decision of the Engineer by procedures outlined in Subsection 105.13. The Engineer will answer any questions as to the meaning of the Contract, or any obscurity as to the wording of the Contract and give all directions and explanations necessary to make definite any of the provisions of the Contract, or necessary to complete or give them due effect. The Contractor may request and the Engin eer will provide written instructions concerning any significant item. Staff Engineers and Engineering Technologist Supervisors have the authority to inspect the work, coordinate inspection activities, and reject substandard work and materials; however, all plan changes and/or project decisions shall be authorized by the Engineer.
105.01.02 Authority of Inspectors. Inspectors employed by the Department are
authorized to inspect all work performed and materials furnished. Such inspection may extend to all or any part of the work and to the preparation, fabrication, or manufacture of the materials furnished. The inspector is not authorized to alter or waive provisions of the Contract. The inspector is not authorized to issue instructions contrary to the Contract, or to act as foreman for the Contractor. However, the inspector has the authority to reject work or materials until any questions at issue are referred to and as the Engineer decides.
105.01.03 Inspection of Work. Provide the Engineer access to all materials and each
part or detail of the work, and furnish the Engineer with such information and assistance as required to make a complete and detailed inspection. At the Engineer’s request, at any time before acceptance of the work, remove or uncover such portions of the finished work as directed. After examination, restore said portions of the work to the standard required by these Specifications. Should the work thus exposed or examined prove acceptable, the Department will pay for the uncovering, or removing, and the replacing of the covering or making good of the parts removed as Extra Work. Should the work so exposed or examined prove unacceptable, perform the uncovering, or removing, and the replacing of the covering or making good of the parts removed at no expense to the Department. As the Engineer directs, remove and replace, at no expense to the Department, all work performed or materials used without the Engineer’s supervision or inspection, unless the Engineer failed to inspect after having been given 3 working days notice in writing that the work was to be performed. When any unit of government or political subdivision or any railroad corporation pays a portion of the cost of the work covered by the Contract, provide access to its respective representatives to inspect the work. Such inspection in no way makes any unit of government or political subdivision or any railroad corporation a party to this Contract, and 105-1 in no way interferes with the rights of either party hereunder.
105.01.04 Removal of Defective and Unauthorized Work. Remedy, or remove and
replace in an acceptable manner, at no expense to the Department, all work which has been rejected. The Department will consider any work performed beyond the lines and grades specified in the Plans or as given, except as herein provided, or any Extra Work performed without a supplemental agreement, as unauthorized and at no expense to the Department. The Department will not measure such work for payment. Should the Contractor decline or neglect to begin the removal and the replacement of any defective work or remove any unauthorized work within the amount of time stated in a written notice to do so has been given him, the Department may retain all monies due or which may become due the Contractor until the requirements of these Specifications have been met. When deemed best by the Commissioner, the Commissioner will employ the necessary labor to make good or remove such defective or unauthorized work and deduct the cost from any monies due or to become due the Contractor.
105.02 PLANS AND WORKING DRAWINGS. Roadway plans will, in general, show
alignment, profile, typical section of improvement, and general cross sections. Structure plans will, in general, show in detail all dimensions of the work contemplated. When the structure plans do not show all dimensions in detail, they will show general features and such details as are necessary to give a comprehensive idea of the structure. When such drawings are necessary to give comprehensive idea of the structure, submit detailed shop or working drawings to the Depart ment for review. The Contractor shall bear all risk for work done or material ordered prior to the Department’s review of these drawings for the structures involved. Submit working drawings for steel structures consisting of shop detail, erection, and other working plans, showing details, dimensions, size of materials, and other information necessary to completely fabricate and erect the work. Submit working drawings for concrete structures consisting of such detailed plans as required to successfully prosecute the work and which are not specified in the Plans. These may include plans for falsework, bracing, centering and form work, cofferdams, caissons, layout diagrams, and diagrams for bent reinforcement. Submit electrical shop drawings, design data, and descriptive literature for materials in electronic format to the Division of Traffic Op erations for approval. Drawings and literature shall be submitted for lighting and signal components. Notify the Engineer when submitting information to the Division of Traffic Operations. Do not begin work until shop drawings are approved. Submit shop drawings for traffic counting equipment and materials in electronic format to the Engineer or the Division of Planning. Notify the Engineer when submitting information directly to the Division of Planning. Do not begin work until shop drawings are reviewed and approved. Submit the working drawings in a timely manner to allow for a corresponding review and include this review time in the project’s schedule. Unless specified elsewhere in the Contract, allow a minimum of two weeks for the Department to review. The Department will review the Contractor’s working drawings in general only. The Department’s review does not relieve the Contractor from any responsibility whatsoever. Upon final review of all working drawings, submit to the Department copies of the final detailed drawings and upon completion of the work, surrender to the Department the original tracings. Include in the Contract price the cost of furnishing all working drawings.
105.03 RECORD PLANS. Record Plans are those reproductions of the original Plans
on which the accepted Bid Proposal was based and signed by a duly authorized representative of the Department. The Department will make these plans available for inspection in the Central Office at least 24 hours prior to the time of opening bids and up to the time of letting of a project or project s. The quantities appearing on the Record Plans 105-2 are the same as those on which Bid Proposals are received. The Department will use these Record Plans as the controlling plans in the prosecution of the Contract. The Department will not make any changes on Record Plans subsequent to their issue unless done so by an approved contract modification. The Department will make 2 sets of Record Plans for each project, and will maintain one on file in the Central Office and one of file in the District Office. The Department will furnish the Contractor with the following: 1 full size, 2 half size and an electronic file copy of the Record Plans at the Pre-Construction conference.
105.04 CONFORMITY WITH PLANS AND SPECIFICATIONS. Perform all work
and furnish all materials in reasonably clos e conformity with the lines, grades, cross sections, dimensions, and material requirements specified in the Contract. Where definite tolerances are specified in the Contract, the Department will use such tolerances to establish the limits of reasonably close conformity. Where tolerances are not specified in the Contract, the Engineer will determine the limits of reasonably close conformity in each individual case. When the Engineer finds the materials or workmanship of the finished product to be outside the contract requirements, the Engineer may allow the material and finished product to be left in place in instances where leaving such material and product in place is in the best interest of the Department and the travelling public. In this event, the Engineer will document the basis of acceptance by Contract modification providing for an appropriate adjustment in the Contract price for such work or materials as he deems necessary to conform to his determination based on engineering judgment. When the Engineer finds that the materials, the finished product in which the materials are used, or the work performed are not in reasonably close conformity with the Contract and have resulted in an inferior or unsatisfactory product, remove, replace, or correct the work and materials at no additional expense to the Department. When referenced standards, such as thos e promulgated by AASHTO, ASTM, or other recognized organizations, or the Department’s own specifications, standard drawings, or similar documents are revised subsequent to the letting date, the Contractor may propose to furnish materials or perform work conforming to the latest edition at the time the work is done. The Engineer may approve such a request if the material or work is deemed to be equal to or better than originally required; however, the Engineer may require a reduction in bid prices before granting approval when the revision significantly reduces the cost of furnishing material or performing the work. In the event of any dispute, the Department will select the referenced standard current at the date of advertisement for Bid Proposals or the standard specifically referenced in the Contract to determine the cost.
105.05 COORDINATION OF CONTRACT DOCUMENTS. All documents defined
under Contract in Subsection 101.03 are essential parts of the Contract. A requirement occurring in one is as binding as though occurring in all. They are complementary and describe and provide for a complete contract. In the case of a discrepancy, the governing ranking will be: Dimensions
1.Plan 2. Calculated 3. Scaled 105-3 Documents
1.Questions and Answers from the Division of Construction Procurement Website
2.CAP report
3.Special Notes
4.Special Provisions
5.Plans
6.Standard Drawings
7.Supplemental Specifications
8.Standard Specifications Do not take advantage of any apparent error or omission in the Contract. Immediately notify the Engineer upon discovering such an error or omission. The Engineer will then make any necessary corrections and interpretations deemed necessary for fulfilling the intent of the Contract.
105.06 COOPERATION BY CONTRACTOR. Maintain copies of the Plans and
Specifications at the site of the work at all times and furnish copies to each foreman. Require each foreman to have with him on the site, at all times, a copy of that part of the Plans and Specifications applying to the work he is directing. Be present or have a representative present on the project at all times, when construction is in progress, to receive and carry out such instructions as the Engineer may give. Provide reasonable facilities to enable the Engineer to inspect the workmanship and materials entering into the work, and cooperate in setting and preserving survey stakes, bench marks, etc., and in all other things necessary to satisfactorily complete the work as contemplated. When the Department lets separate contracts within the limits of any one project or for adjacent projects, conduct the work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Cooperate with contractors working on the same project or adjacent projects. In case of a dispute with other contractors, the Engineer will arbitrate and will make a final and binding decision. Progress work according to specification 108.04. The Contractor shall assume all liability, fi nancial or otherwise, in connection with the Contract and shall protect and save harmless the Department from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him because of the presence and the operations of other contractors working within the limits of the same project. The Contractor shall assume all responsibility for all work not completed or accepted on the Contract because of the presence and operations of the other contractors. As far as possible, arrange the work and place and dispose of the materials being used so as not to interfere with the operations of the other contractors within the limits of the same project or on adjacent projects. Join the wo rk with that of the other contractors in an acceptable manner, and perform it in proper sequence with the work of the other contractors. Informal Partnering is encouraged between the Department and Contractor. The partnering process is intended to encourage the foundation of a cohesive partnership between the Department and the Contractor. This partnership will be structured to draw on the strengths of each organization to identify and achieve reciprocal goals within the bounds of the Contract. Common objectives will be st ructured to meet each project’s needs, but will include such basic criteria as effective and efficient contract performance, safety, and contract completion on schedule and within budget. The Contractor and the Department should both be aware that the partnering process includes more than their relationship. The “Team” should also include utility companies, local officials, emergency personnel such as fire and police, and anyone else for which the project effects or who could affect the progress of the project. The partnering process in no ways alters the Contract itself. Also, the establishment of a partnering process or charter for a project will not change the legal relationship of the parties to the contract nor relieve either party from any of the terms of the contract. Scheduling on-site project meetings at a regular or ‘as-needed’ basis is encouraged to discuss and resolve issues regarding the project throughout the duration of the Contract. 105-4 Contractor, subcontractor, and Department pe rsonnel should attend these meetings, and if need be, any appropriate persons needed to discuss specific issues. Record the minutes of each meeting and distribute to all partners. It will be the responsibility of the Contractor and the Department to act equally in hosting these meetings. Informal Partnering will not be measured for payment and the Department will consider all costs associated with the informal partnership incidental to the project.
105.07 COOPERATION WITH UTILITIES. The Department will notify all utility
facility owners or other parties affected and en deavor to have all necessary adjustments of utility fixtures, pipelines, and other appurtena nces in conflict with construction made as soon as practical. The Department will arrange to have the owne rs of all water lines, gas lines, wire lines, service connections, water and gas meter boxes, water and gas valve boxes, light standards, cables, signals, sewers, and all other utility appu rtenances in conflict with the limits of the proposed construction relocate or adjust those facilities in conflict except as otherwise provided for in the Contract. Consider all of the permanent and temporary utility facilities in their present or relocated positions, as specified in the Special Note for Utilities/Impact on Construction included in the Bid Proposal form, when preparing a Bid Proposal. The Department will not allow any additional compensation for delays, inconvenience, or damage sustained by the Contractor due to any interference from the said utility appurtenances or due to the operation of moving them. The Department will review requests for an extension of Contract time for such delays according to Subsection 108.07. Prior to any excavation activities, comply with the requirements for Excavators in the Underground Facility Damage Prevention Act of 1994 which is contained in KRS 367.4901 through 367.4917.
105.08 PROTECTION AND RESTORATION OF EXISTING ROADWAY FACILITIES. Protect and preserve all existing roadway facilities including:
1.those which are to remain in place and remain in service as a part of the improved roadway;
2.those which are to be removed and reused as a part of the improved roadway; and
3.those which are to be removed and neatly stacked along the right-of-way for future Department use. Restore and replace in kind any such existing facilities damaged or destroyed by the Contractor through faulty handling as the Engin eer directs, at no expense to the Department.
105.09 CONSTRUCTION STAKES, LINES, AND GRADES. Unless the Contract
specifies otherwise, the Engineer will establ ish lines, slopes, and grades, and will furnish the Contractor with all necessary information relating to lines, slopes, and grades. Furnish, set, and preserve the stakes a nd marks necessary to construct the project according to the established lines, slopes, and grades as provided in Section 201.
105.10 Hauling.
105.10.01 Hauling to Projects. According to Subsections 107.01 and 109.01.05,
perform the hauling of materials and all other hauling in conjunction with the construction of a project so as not to violate any of the tr uck size, gross weight, axle weight, or tire width limitations provided by law or regulation, such as KRS 189.221, KRS 189.222, and all other regulatory statutes relating to the provisions outlined in this section.
105.10.02 Hauling Within Project Limits.
A.Grade and Drain Projects. The Department will not restrict vehicles operating 105-5 at any phase of grade and drain construction as to any type of equipment or loading except as provided under Subsection 207.03.03 and as specified hereinafter for Hauling Over Structures.
B.Hauling Over Structures. Inspect and examine all structures, including drainage structures, existing and newly constructed, to determine whether or not any structure has been damaged before beginning hauling. For damaged structures, request the Department to appraise the existing damage and grant a release, in writing, from liability for the damage disclo sed, or otherwise stand liable. Repair all damage to the structure, including joints that may be incurred as a result of the hauling operations, at no expense to the Department. Submit for the Engineer’s review and approval all proposed methods to protect structures prior to the start of hauling. The Department additionally limits the operation of construction vehicles over structures as follows:
1.obtain written approval from the Engineer before any off-highway vehicle is operated, empty or loaded, over a structure;
2.do not exceed the design load limits or rated load limits of the structure based on the equipments tire size, wheel base, axle weight, and axle spacing, without approval from the Engineer;
3.consider temporary dead loads of stored materials, stationary equipment, formwork/falsework, etc. when determining the load limits of the structure;
4.limit the movement of off-highway c onstruction vehicles across bridges to one-lane operation centrally aligned with the bridge and at intervals between vehicles no less than 100 feet;
5.maintain bridge floors free from spilled materials, lumber, or any other impact producing obstruction;
6.do not use an earth cushion on bridge;
7.prior to hauling construction loads over a bridge, construct temporary approaches 100 feet in length with the 50 feet adjacent to each end of the bridge constructed to the finished grade elevation of the bridge. Maintain temporary ramps and approaches, at the direction of the Engineer, to minimize the impact of moving construction loads onto the highway structure;
8.for off-highway construction vehicles on the approaches and bridges, do not exceed a speed of 10 mph; and
9.protect from overloads, by temporary fill or by other means, culverts, regardless of span, pipe culverts, and other items which are covered or which are to be covered by fill or backfill.
C.Hauling Over Pavements Within Project Limits. During the construction of surfaces or pavements, equip all hauling vehicles operating over the subgrade and base, intermediate, and surface courses with rubber tires. Ensure that all hauling vehicles operating over the base, intermediate, and surface courses conform to the axle weight and tire width limitations provided by law or regulation. Limit hauling over pavements as follows:
1.do not allow the gross weight to exceed the posted load limit of a bridge in any instance; and
2.comply with any decreased gross weight limits when, in the Engineer’s judgment, the roadway or structures would be damaged by allowing the posted load limit.
105.11 MAINTENANCE DURING CONSTRUCTION. Maintain the work during
construction and until the Department accepts the project. Provide maintenance through continuous and effective work prosecuted day by day, with adequate equipment and forces keeping the roadway or structures in satisfactory condition at all times. 105-6 In the case of a contract for the placing of a course upon a course or subgrade previously constructed, maintain the previous course or subgrade until completing the succeeding course. Include the cost of all maintenance work in the unit prices bid on the appropriate pay items. The Department will be responsible for routine roadway maintenance operations such as mowing, ditching, snow removal, signing, lighting and pothole patching for portions of the roadway that remain open to traffic and unaffected by Contractor operations. The Department will conduct these operations in a manner not to disturb the construction operations. Once a segment of permanent guardrail from terminal to terminal is installed in accordance to Contract documents and payment has been made, the Department will pay for damage caused by vehicular accidents at the contract unit bid prices. For segments of existing guardrail that are damaged due to a vehicular accident, the Department will pay to replace the guardrail at the contract unit bid prices or a supplemental price will be determined in instances where the item does not exist in the contract. Partially installed segments, temporary guardrail, and any guardrail damage due to contractor activities shall be maintained and repaired within 48 hours of damage at the Contractor’s expense.
105.12 FINAL INSPECTION AND ACCEPTANCE OF WORK. The Department
will not consider the work complete and will not make final payment until the Contractor clears the right-of-way, borrow pits, and all ground the Contractor occupies in connection with the work of all rubbish, equipment, excess materials, temporary structures, and weeds. Place rubbish and all waste materials of whatever nature, other than hazardous materials, on either public or private property in a location out of view from the roadway and in a manner acceptable to the Department that does not present an unsightly appearance. Restore in an acceptable manner all property, both public and private, that was damaged in the prosecution of the work. Drain all ditches and all borrow pits where practical, and leave all space under structures unobstructed and in such condition that drift will not collect and induce scouring. Notify the Engineer when the project is near completion. The Engineer will then advise in writing all work items that are unsatisfactory. When these work items are complete to the Engineer’s satisfaction, the Engineer will call the project complete and issue a Project Completion Notice. When there are seasonal limitations or other compelling situations, the Engineer may call the project complete without requiring correction of the unsatisfactory work items until weather permits or the situation is remedied. When the project is called complete, it is ready for the Department’s final inspection. Notify the Engineer when all electrical items are complete. The Engineer will then perform an electrical final inspection and will notify the Contractor in writing with the corrective work required. Electrical items will be inspected when the electrical work is complete and are not subject to waiting until the project as a whole has been completed. The Engineer will notify the Division of Traffic Operations within 3 days that all electrical items are complete and ready for a final inspection. A final inspection will be completed within 90 days after the Engineer notifies the Division of Traffic Operations of the electrical work completion. Energize all electrical items prior to notifying the Engineer that all electrical items are complete. Electrical items must remain operational until the Division of Traffic Operations has inspected and accepted the electrical portion of the project. Payment for the electrical service is the responsibility of the Contractor from the time the electrical items are energized until the Division of Traffic Operations has accepted the work. Complete all corrective work within 90 calendar days of receiving the original electrical inspection report. Notify the Engineer when all corrective work is complete. The Engineer will notify the Division of Traffic Operations that the corrective work has been completed and the project is ready for a follow-up inspection. Upon re-inspection, if additional corrective work is required, complete within the same 90 calendar day allowance. The Department will not include time between completion of the corrective 105-7 work and the follow up electrical inspection(s). The 90 calendar day allowance is cumulative regardless of the number of follow-up electrical inspections required. The Department will assume responsibility for the electrical service on a project once the Division of Traffic Operations gives final acceptance of the electrical items on the project. The Department will also assume routine maintenance of those items. Any damage done to accepted electrical work items by other Contractors shall be the responsibility of the Prime Contractor. The Department will not be responsible for repairing damage done by other contractors during the construction of the remaining project. Failure to complete the electrical corrective work within the 90 calendar day allowance will result in penalties assessed to the project. Penalties will be asse ssed at ½ the rate of liquidated damages established for the contract. The Department and other appropriate agencies, such as FHWA, will complete final inspections on all items of work for Formal Acceptance within 90 calendar days of the date of issuance of the Project Completion Notice w ith the exception of striping, seeding, other erosion control items, tree planting, and landscaping. The Department will make final inspections on seeding and other erosion control items according to Section 212. The Department will make final inspections on tree planting and landscaping as the Contract specifies. The Department will make individual final inspections on particular groups of work items such as structures, electrical, grade and drain, and surface. The Department may make final inspections before the project is called complete on items of work that have been completed. The Engineer will issue written final inspection reports for items of work upon completion of each final inspection. The reports will include a list of all uncompleted work and required corrective work. The Engineer will issue a Comprehensive Final Inspection Report that will include all inspection reports with the exception of striping, seeding, tree planting and landscaping. Complete all items of uncompleted work and all required corrective work listed in the final inspection reports within 90 calendar days of receiving the Engineer’s comprehensive final inspection report. When the specified seasonal or temperature limitations prohibit the Contractor from performing the work, complete the work within 90 calendar days after the date the Engineer directs. When the final inspection report is received apart from the Comprehensive Final Inspection Report, corrective work for striping, seeding and other erosion control items, tree planting, and landscaping shall be completed within 90 calendar days of receiving the Engineer’s inspection report. When the following occur, substitute the deferral date for the date of the Engineer’s comprehensive final inspection report when determining the above time limits for completion of uncompleted work and corrective work:
1.the Contract specifies deferral of payment,
2.the project is complete before the date the Department can make payment (deferral date), and
3.the deferral date is later than the date of the Engineer’s comprehensive final inspection report. When applicable, submit required as-built drawings, project documentation, and required information on materials incorporated into the project. Consider them as uncompleted work or required corrective work. If there is a dispute regarding any of the items listed as uncompleted work or required corrective work on any of the final inspection reports, submit in writing a letter of dispute to the Engineer within 30 days of receipt of the report. The Department will respond back in writing to the letter of dispute within 21 days . If there is still a dispute, proceed according to Subsection 105.13. When the dispute does not apply to all items of work in the report, complete the items not in dispute as specified herein. The Department will assess liquidated damages according to Subsection 108.09 for failure to complete the required work items within the specified time period. After 30 days 105-8 of liquidated damages, the Department may proceed according to Subsections 102.04 and 108.10. When all uncompleted work and required corrective work is finished, the Department will make Formal Acceptance of the project and take responsibility for the project, subject to Section 107.14. Formal Acceptance is effective as of the date all corrective work was completed. If there are no uncompleted work items or required corrective work listed on any of the final inspection reports, the Department will make Formal Acceptance as of the date of the latest final inspection.
105.13 Claims
105.13.01 Claims Resolution Process. The Engineer and Contractor should attempt to
resolve project disputes as they arise. When project issues remain unresolved, contract parties may take the following course of action. The Kentucky Administrative Regulations (KAR 603 2:015 Sections 8 & 9) and Kentucky Revised Statutes (KRS 13B.140) mandate the process for resolving project claims. The Contractor must notify the Engineer of the intent to file a claim by submitting form TC 63-77, “Notice of Potential Claim” to initiate the claims process. Form TC 63-77 must be submitted to the Engineer within 10 days of the date that the Contractor knew of or should have known of the events causing the claim. If the claim is for extra work as defined by subsection 104.03, submit TC 63-77 prior to beginning the disputed work. If the TC 63-77 is not received as required or if it is received after the 10-day deadline, the Cabinet will not consider a claim. The Engineer will respond to the Contractor notifying them of the receipt of notice of the claim by submitting form TC63-78, “Acknowledgement of Notice of Potential Claim,” to the Contractor. The Engineer will send this form within 7 days of receiving form TC 63- 77. Beginning no more than 14 calendar days after filing the “Notice of Potential Claim,” and on a weekly basis thereafter, the Cont ractor shall submit the following to the Engineer:
A.For extra work claims, the Contractor shall submit a summary of all force account forms and identify each operation affected and the specific locations where work is affected. If the Contractor’s records indicate costs greater than on record with the Department, then the Engineer will notify the Contractor in writing. The Contractor shall respond to the Engineer in writing within 3 days work days of any disagreements with the Engineer. The Engineer will revi ew the records and correct any inaccuracies. If the Contractor does not respond within 3 days then the Department’s records will control. For purposes of computing damages, the Department’s records will control.
B.For delay claims, the Contractor shall pr epare and submit to the Engineer written reports providing the following:
1.Potential effect to the schedule caused by the delay
2.Identification of all operations that ha ve been delayed, or are to be delayed
3.Possible mitigation actions and any additional costs or time required to implement
4.Explanation of how the Department’s act or omission delayed each operation, if applicable, and estimation of how much time is required to complete the project
5.Itemization of all extra costs being incurred, including:
a.An explanation as to how those extra costs relate to the delay and how they are being calculated and measured
b.Identification of all project employees for whom costs are being compiled
c.Identification of all manufacturer’s numbers of all items of equipment for which costs are being compiled. 105-9 The Contractor may request additional time or a different submittal schedule (i.e. Bi-weekly, monthly, etc.) by submitting a written request to the Engineer. The Engineer will respond with approval or denial to the request in writing within seven calendar days. Absent written approval from the Engineer, adhere to the timeframes previously stated, failure to provide the required documentation may be grounds for denial of the claim. Once the proper forms are submitted for the particular work and/or a delay involved in the claim, the Contractor must complete the work as the contract documents and Engineer direct. Track this work and associated costs according to Subsection 109.04.02. The Contractor’s compliance with this provision an d the Engineer’s accounting of the costs does not validate the claim. It is the Contractor’s responsibility to mitigate any delays. Any additional costs associated with mitigating delays shall be addressed as Extra Work as provided in Subsection 104.03. When the Engin eer determines a claim is justified, the Department will pay for it as Extra Work as provided in Subsection 104.03. This provision does not establish a claim contrary to the terms of Subsection 104.02.
105.13.02 Claims for Extra Work
A.Recoverable Costs . The Contractor is not entitled to recover any costs in a claim other than those allowed by this Section. Numbers 1 through 5 identify all recoverable direct and indirect costs and shall constitute the sole cost(s) and expense(s) to which the Contractor is entitled on any Claim submitted for additional compensation or settlement of any Claim made under these Specifications, except as further provided in Section 105.13.03
1.Labor, include only the labor force required to complete the extra work. Idle labor will not be considered recoverable unless due to a collective bargaining agreement or other reasons approved by the Engineer. Payment will be as per Section 109.04.02.A. 2) Materials will be paid as per Section 109.04.02.B 3) Equipment and Tools will be paid as per Section 109.04.02.C 4) Bond and Insurance, will be paid as per Section 109.04.02.D 5) Percentage markups, when the extra work is performed by a subcontractor an additional 5 percent will be added to numbers 1 through 4 above to account for overhead associated with administering the work performed by the subcontractor. No additional markup will be allowed for work performed by the Prime Contractor.
B.Non-Recoverable Costs . The parties agree that the Department will have no liability for the following items of damage or expense:
1.Profit or markups in excess of that provided in Section 109.04 and 105.13 2) Loss of profit
3.Costs of lost productivity for labor and equipment either on this Contract or any other. 4) Field office overhead and home office overhead in excess of that provided in Section 109.04 and 105.13. 5) Consequential damages, including but not limited to loss of bonding capacity, loss of bidding opportunities and insolvency. 6) Indirect costs or expenses of any nature except those allowed in Section 105.13.02.A.
7.Attorney’s fee, claim preparation expenses or costs of litigation. 8) Interest on any claimed amounts. C) Additional Time. Any extension to contract time will be as per Section 108.07. 105-10
105.13.03 Claims for Delays. In order to receive an extension of Contract Time or to
receive monetary compensation for delays to the Contract Schedule, the Contractor must request an extension of Contract Time in accordance with Section 108.07. Base all requests for extensions of Contract Time on the Contr actor’s progress schedule. Failure to properly submit, update, and maintain the progress schedule in accordance with the contract shall constitute a waiver of the Contractor’s right to claim for a time extension and/or monetary damages due to a delay.
A.Excusable Delays. Excusable delays are delays affecting the Contractor’s progress schedule that the Contractor cannot reasonably foresee or avoid and are not the contractor’s fault or responsibility. These include but are not limited to:
1.Floods, tornadoes, earthquakes, fires, epidemics or similar natural phenomena. 2) Extraordinary, unforeseen, and unavoidable delays in material deliveries. 3) Delays due to the acts of government entities other than the Department. 4) Delays from industry-wide strikes aff ecting the contractor’s (or subcontractors’ or suppliers’) workforce that are bey ond the contractor’s power to settle.
5.If time allowances are specified and exceeded, delays caused by the non- completion of work by utilities or other third parties
6.Delays caused by the Department
B.Non-excusable Delays. Non-excusable delays are delays caused by the Contractor, or that the Contractor could have reasonably foreseen or avoided. The Engineer will not make an extension to contract time for non-excusable delays. All non-excusable delays are non-compensable.
C.Concurrent Delays. Concurrent delays are multiple delays occurring at the same time to separate and/or same critical activities. When concurrent delays occur, the Department will give precedence to non-excusable over excusable delays in determining extensions to the contract completion date.
D.Compensable Delays. Compensable delays are excusable delays caused by actions or inactions of the Department, to which the Co ntractor is allowed to receive cost recovery.
E.Non-Compensable Delays. Non-compensable delays are delays to which the Contractor is not allowed to receive cost re covery. This is delay not caused by the Department. These include but are not limited to:
1.Contractor caused delays 2) Floods, tornadoes, earthquakes, fires, epidemics or similar natural phenomena. 3) Extraordinary, unforeseen, and unavoidable delays in material deliveries. 4) Delays due to the acts of government entities other than the Department. 5) Delays from industry-wide strikes aff ecting the contractor’s (or subcontractors’ or suppliers’) workforce that are bey ond the contractor’s power to settle.
6.If time allowances are specified and exceeded, delays caused by the non- completion of work by utilities or other third parties
F.Recoverable Direct and Indirect Expenses. Only the additional costs associated with the following items will be recoverable by the Contractor for a compensable delay. It will be the Contractor’s responsibility to pr ovide appropriate documentation to validate the claim. 105-11
1.Extended Field Overhead . Field overhead costs necessary for the prosecution of the work during the delay period, as follows:
a.General Field Overhead. Such costs include but are not limited to general field supervision, assistants, wa tchman, clerical, and other field support staff that are physically located on the jobsite. Compute these labor costs in accordance with Section 109.04.02.A. .
b.Field Office Facilities and Supplies. Such costs include but are not limited to field office trailers, tool trailers, office equipment rental, temporary toilets, and other incidental facilities and supplies that are physically located on the jobsite. Compute these costs on the basis of the actual added costs incurred by the Contractor to provide these services as a result of the delay.
c.Maintenance of Field Operations. Such costs include but are not limited to expenses for telephone, electric, water and other similar services that are provided at the jobsite. Compute these costs on the basis of the actual added costs incurred to maintain these services as a result of the delay.
2.Labor. Idle labor will not be considered recoverable unless due to a collective bargaining agreement or other reasons approved by the Engineer. Payment will be as per Section 109.04.02.A.
3.Material. Costs for material escalation due to the delay or the cost of storage of materials due to the delay are recoverable. Obtain the Engineer’s approval prior to storing any material due to a delay.
4.Equipment. The Contractor will provide costs for demobilization/remobilization of equipment, a nd the Department will decide whether to pay for either demobilization/remobilization or idle equipment costs. For any idle equipment, the Engineer states to remain on the project s ite during delays, the Contractor is to receive compensation at the rate calculated in Section 109.04.02.C for equipment required to be on standby.
5.Bond and Insurance. The Department will pay for documented additional or escalated premiums on bonds and insurance incurred during the delay.
6.Percentage markups. An additional 10 percent markup of the total of 1-5 above will provide full compensation for home office overhead and any other costs attributed to the delay. This is the only markup that is recoverable for a compensable delay.
G.Non-Recoverable Damages and Expenses. The expenses listed in 105.13.03.F above shall constitute the sole cost(s) and expense(s) to which the Contractor shall be entitled on any delay claim submitted for additional compensation or settlement of any claim made under these Specifications. The parties agree that the Department will have no liability for the items listed in Section 105.13.02.B .
105.13.04 Claim Submittal.
A.Entitlement. The Department requires that the Contractor establish entitlement for all claims before the Department will consider impact and cost. The Contractor shall submit the following to the Engineer as a minimum to determine entitlement.
1.A detailed factual statement of the claim providing a description of the claim issues and all relevant facts, including the events, dates, locations, and a description of what work was affected and how this work was affected by the claim. 105-12
2.A narrative that identifies all of the specific Contract provisions that support the claim, why they support the claim, and how the details of the factual statement in item (1) above establish entitlement based on the referenced Contract provisions.
3.A copy of the “Notice of Potential Claim” filed for the specific claim by the Contractor.
B.Impact and Cost. The Contractor shall submit the following to the Department as a minimum to determine impact and cost.
1.If a delay is alleged, submit an as-built schedule compared with the as-bid schedule indicating the delay or delays, a description detailing the responsible party and actions causing the delay, specific days/dates for which time is sought and the basis for such a request and any supporting documentation
2.If additional costs are alleged, submit a narrative and all documentation that substantiates the claimed costs. Provide a breakdown of all costs, in a format that can easily be referenced with the submitted documentation. All costs shall be calculated as detailed in
C.Certification of Claim. Before the Department will review any claim the Contractor must certify the claim attesting to the following:
1.The claim is made in good faith, based on documented fact and the value is not knowingly overstated, and
2.Supportive data is true, accurate, and complete to the Contractor’s best knowledge and belief. In complying with this requirement, the Contractor’s claim submittal shall include the following fully executed certification: Under the penalty of law for perjury or falsification, the undersigned, Name Title of Company Hereby certifies that the claim for compensation and time, if any, made herein for work on this Contract is, to the best of the Contractor’s knowledge and belief, a true statement of the costs incurred and time sought, and is fully documented and supported under the Contract between parties. This certification must be signed by the Contractor and notarized.
D.Submission Timelines. Before the Department w ill review any claim the Contractor must submit the claim inclusive of a ll items: A,B, and C listed above. The claim must be submitted in the timelines that follow. If additional time is warranted, a request shall be submitted to the Engineer within the given timelines explaining why and how much additional time is needed. The Engineer will respond with approval or denial to the request for additional time within seven calendar days. Failure by the Contractor to meet the following timelines, plus any approved extensions, will result in automatic denial of the claim.
1.When the claim involves extra work, submit no later than 30 days after the work has been completed.
2.When the claim involves a delay, submit no later than 30 days after the project has been called complete. If the Contractor did not submit an as-bid schedule at the Pre-Construction Meeting or a written narrative in accordance with Subsection 108.02, the Cabinet will not consider the claim for delay.
3.When the claim involves final quantities and payments, submit no later than 60 days after receipt of form, “Final Release,” as sent by the Department. 105-13
105.13.05 Claim Review. Upon the submission of the Claim Submittal by the
Contractor, the Engineer and District T.E.B.M. will have 60 days to attempt to settle the claim with the Contractor. If the claim is not settled, the District will submit it to the Director of the Division of Construction who will have 90 days to make a final determination. Prior to making the final determination, the Director may hold an informal conference with the Contractor for the purpose of reaching a resolution to the claim or identifying issues needing resolution. The Director will notify the Contractor of the Cabinet’s decision (the final determination) and the Contractor’s right to a hearing according to the KAR 603 2.015 Section 10. Should the Engineer or Director fail to meet the previously mentioned deadlines, their inaction indicates a denial of the claim. Should the Director fail to submit a final decision within the deadline stipulated previously, the Cabinet will bear the costs associated with the hearing officer, should such an event occur. Upon a written agreement of both parties, the claim could be mediated through a formal nonbinding mediation with a mutually agreed upon mediator. The parties will equally share the costs associated with this action. If either party terminates the mediation, the Contractor may still request a hearing according to KRS Chapter 13B and has 30 days from the notice of termination of the mediation to make such a request. If the Contractor wishes to request a hearing, they must do so within 30 days of the notification of the Cabinet’s final decision and should be in accordance with KRS Chapter 13B. The previous Administrative Claims Process must be exhausted prior the Contractor requesting an Administrative Hearing. The Contractor may choose to forego the KRS Chapter 13B Administrative Hearing and may at any time file a lawsuit with the Franklin County Circuit Court in Frankfort, Kentucky. 105-14
Source: Kentucky Standard Specifications for Road and Bridge Construction, 2019 Edition. Pages 31–44 of 718.