109Changes

Scope of Section This Section contains general provisions related to changes in quantities, scope, time, and payment.

109.1Changes in Quantities

109.1.1 Changes Permitted The Department may increase or decr ease Pay Item quantities from the estimated quantities shown in the Bid Documents, and such increase or decrease shall not be considered Extra Work. Except as expressly provided otherwise in this Contract, the Contractor shall be paid for actual quantities in place and accepted at the Unit Prices contained in the Contractor’s Bid. The Contractor accepts such payment as full and complete compensation. There will be no adjustment to Contract Time due to an increase or decrease in quantities compared to those estimated, except as addressed through Contract Modification(s). 109.1.2 Substantial Changes to Major Items If quantities of M ajor Items vary from the estimated quantities contained in the Bid Documents by more than 25%, then the Department may increase or decrease the Unit Price of such item using the extra work process. For related provisions, see Section 109.3 - Extra Work and Section 109.8 - Contract Modification. If an adjustment to the Unit Price is made, it will apply only to that portion of the actual quantity that is less than 75% of the estimated quantity or more than 125% of the estimated quantity.

109.2Elimination of Items Upon written notification to the C ontractor, the

Department may entirely eliminate item(s) of Work for any reason. Upon notification, the Department is entitled to a credit. For Minor Items, the credit shall be the Contractor’s Bid price for the eliminated item(s). For Major Items, the amount of the credit shall be the Contractor’s Bid price for the eliminated item(s), less (A) direct costs actually incurred by the Contractor after Award, including mobilization, shipping, and restocking expenses that the Contractor cannot recoup on other Projects as reasonably determined by the Department, and (B) 10% for overhead and profit. The Department may withhold said credit from amounts otherwise due the Contractor.

109.3Extra Work The Department reserves the right to revise the Contract by

adding Extra Work. Such revisions neither invalidate the Contract nor release the Surety. The Contractor and/or its Surety agree to perform all such Extra Work. The Department will compensate for Extra Work by written Contract Modification in accordance with Section 109.7.1 - General and Section 109.7.2 - Basis of Payment. Any Delay related to Extra Work will be analyzed in accordance with Section 109.5 - Adjustments for Delay. For a related provision, see Section 109.8 - Contract Modification.

109.4Differing Site Conditions

109.4.1 Definition “Differing Site Conditions” are subsurface or latent physical conditions that, at the time of Bid submittal, were:

generallyrecognized as inherent in Work like that specified by the Contract by Contractors experienced in such Work, and

the case of the Contractor includes its Subcontractors. 109.4.2 Risk of Other Conditions All costs, Work, Delays, or other damages related to or arising from site conditions that are not Differing Site Conditions are the sole risk and responsibility of the Contractor. 109.4.3 Notice and Procedural Requirements If the Contractor discovers what it considers Differing Site Conditions that may cause adjustments to compensation, time, or other Contract requirements, the Contractor shall provide “Notice of Issue for Consideration” within 48 hours of discovery and before doing any Work relating to such conditions as provided in Section 104.4.5 - Early Negotiation. The Contractor shall then comply with all other requirements of Section 104.4.5 - Early Negotiation, and Section 111 - Resolution of Disputes. The Contractor will not be entitled to any change to compensation, time, or Work requirements without proper notice as specified in this Section 109.4. Failure to provide such notice or to otherwise comply with this Section 109.4 will constitute a waiver of all claims related to such conditions. If the Department discovers what it considers Differing Site C onditions that may cause adjustments to compensation, time, or other Contract requirements, then the Department will provide the Contractor with written notice within 48 hours of discovery. If the Contractor disagrees with the Department’s finding of Differing Site Conditions or the related adjustments, then the Contractor shall provide “Notice of Issue for Consideration” within 48 hours of receipt of the Department’s written notice and comply with the requirements of Section 104.4.5 - Early Negotiation and Section 111 - Resolution of Disputes. 109.4.4 Investigation / Adjustment Upon notification by the C ontractor or upon the Department’s own initiative, the Department will investigate the conditions. If the Department determines that Differing Site Conditions exist and that the Differing Site Conditions have caused an increase in the cost or time required for the performance of the Work, then the Contractor is entitled to an Equitable Adjustment for the additional costs in accordance with Section 109.7, Equitable Adjustments to Compensation and Time - Basis of Payment that are caused directly by the Differing Site Conditions. If the Department determines that Differing Site Conditions exist and that the Differing Site Conditions have caused a decrease in the cost or time required for the performance of the Work, then the Department is entitled to a credit in the amount of savings to compensable items in accordance with Section 109.7, Equitable Adjustments to Compensation and Time, that are caused directly by the Differing Site Conditions. Delays caused by Differing Site Conditions will be considered in accordance with Section 109.5 - Adjustments for Delay.

109.5Adjustments for Delay

109.5.1 Definitions - Types of Delays Delays are defined as f ollows and may be divided into more than one type depending upon cause.

“Excusable Delay” is a Delay to the Critical Path that is directly and solely caused by

Emergency Disaster is declared. The Contractor will be entitled to an adjustment of time under this Section only if the Project falls within the geographic boundaries prescribed under the disaster declaration. or (2) a flooding event at the affected location of the Project that results in a Q25 headwater elevation, or greater, but less than a Q50 headwater elevation. Theoretical headwater elevations will be determined by the Department; actual headwater elevations will be determined by the Contractor and verified by the Department or (3) An Uncontrollable Event

directly and solely caused by: (1) a weather-related Uncontrollable Event of such an unusually severe nature that a Federal Emergency Disaster is declared. The Contractor will be entitled to an Equitable Adjustment under this Section only if the Project falls within the geographic boundaries prescribed under the disaster declaration and receives project-specific emergency funds, and the Contractor can show proof that the Work was delayed by this weather event, (2) an Uncontrollable Event caused by a Utility Company for which the Utility Company reimburses the Department, (3) an Uncontrollable Event caused by other third party (not Subcontractors) Working on Project-related Work within the Project Limits if, and only if, the such other third party offers the Department reimbursement for such Delay, or (4) acts by the Department that are in violation of applicable laws or the Contract, or (5) a flooding event at the affected location of the Project that results in a Q50 headwater elevation, or greater. Theoretical Q50 headwater elevations will be determined by the Department; actual headwater elevations will be determined by the Contractor and verified by the Department.

Delays or Compensable Delays. For a related provision, see Section 101.2 - Definition of Unc ontrollable Event. 109.5.2 Entitlement to Adjustments

109.5.2(B) below and complies with the notification, documentation, and procedural requirements set forth in the Contract, the Contractor is entitled to certain adjustments to the Contract depending upon the type of Delay.

no additional compensation.

and an Equitable Adjustment as set forth in Section 109.7 - Equitable Adjustments to Compensation and Time.

time nor additional compensation. For related provisions, see Sections 104.2.7 - Damage to Proje ct Caused By Uncontrollable Events and 104.3.10 - Responsibility for the Damage to Work.

Delay or a Compensable Delay, the Contractor must demonstrate all of the following:

coordinate, and manage the Work, as evidenced by documentation created as the Work progressed, including Progress Meeting minutes;

period of time when Excusable and Inexcusable Delays are concurrent. The Contractor also is not entitled to either a time extension or an Equitable Adjustment for the period of time when Compensable and Inexcusable Delays are concurrent. In the event Compensable and Excusable Delays are concurrent, the Contractor is entitled only to a time extension, not an Equitable Adjustment, for the period of time such Delays are concurrent. 109.5.3 Early Completion Date Delay Claims For the purposes o f this Section 109.5.3, a “Contractor’s Early Completion Date” means a Project Completion date shown on the Contractor’s initial Schedule of Work submitted in accordance with Section 107.4.2 - Schedule of Work Required that is earlier than the Contract’s specified Completion date. The Department will not be liable for any claims or expenses related to the period of time between the Contractor’s Early Completion Date and the Contract’s specified Completion date, unless the Contractor demonstrates, by clear and convincing evidence that: (A) all requirements of Section 109.5.2(B) - Requirements for Entitlement are met, and (B) that the Contractor’s Early Completion Date was reasonable at the time of Bid in light of the surrounding facts and circumstances, including the Contractor's available resources, and the requirements of the Work. 109.5.4 Notice and Procedural Requirements If the Contractor becomes aware of facts or circumstances that may cause a Delay for which the Contractor may seek adjustments to compensation, time, or other Contract requirements, the Contractor must notify the Resident of such “Issue” within 48 hours and before doing any Work relating to such facts or circumstances as provided in Section 104.4.5 - Early Negotiation. Except as otherwise provided in this Section 109.5, the Contractor shall then comply with all other requirements of Section 111 – “Resolution of Disputes.” The Contractor will not be entitled to any change to compensation, time, or Work requirements without proper and timely notice. Failure to provide such notice constitutes a waiver of all claims related to such conditions. 109.5.5 Documenting the Delay and Request for Adjustments

Contractor must keep records as provided in Section 111.1.6 – Contractor’s Obligation to Keep Records. Further, the Contractor must submit weekly written reports containing the following information.

impact of the Contractor's Critical Path.

Delay” or “Compensable Delay” contained in Section 109.5.1(A) or (B).

to the Delay, (B) the identification of all non-salaried Project employees for whom costs are being compiled, and (c) a summary of time charges for Equipment, identified by the manufacturer’s number for which costs are being compiled.

phase of Work that the Contractor claims has been Delayed, the Contractor shall submit a written report to the Department that contains the following information:

narrative of how the cause for the Delay meets the definition of “Excusable Delay” or “Compensable Delay” contained in Sections 109.5.1(A) or (B), including all reports prepared for the Contractor by consultants, if used;

Critical Path; and

under Section 109.7.5 – Force Account Work, including measurement and explanation. The Department may require that all costs shown in the report be certified by an accountant, and that the Contractor provide all other information described in Section 111.2.2 - Detailed Notice of Dispute. 109.5.6 Decision by Program Manager Within 30 Days of receivi ng all information described in Section 109.5.5(B) - Request and Report After Completion, the Program Manager will Deliver a written decision on the request made to the Contractor. Failure to provide a decision within said 30-day period shall be considered a denial of the Contractor’s request, unless the parties mutually agree to an extension of time for such decision. 109.5.7 Additional Consideration By Department If the Contrac tor wants additional consideration, the Contractor shall Deliver a “Notice of Unresolved Dispute” to the Department’s appropriate Bureau Director within 14 Days of Receipt of the Program Manager’s decision. Such Notice shall comply with Section 111.3.1 - Notice of Unresolved Dispute. The parties must then comply with all other Dispute resolution provisions of this Contract, beginning with Section 111.3 - Negotiation By Management.

109.6Value Engineering

109.6.1 Overview - General Requirements A Value Engineering C hange Proposal

produce cost savings without impairing essential characteristics of the Project, including function, serviceability, safety, durability, maintainability, and aesthetics, all as determined by the Department. A VECP shall contain proven features that have been used under similar conditions. A proposal is not a VECP if equivalent options are already provided in the Contract. A VECP must be approved by the Department. Unless otherwise a greed in writing, the Contractor and the Department will equally share the Net Savings generated by the VECP as provided in Section 109.6.4(C) - Contract Modification - Amount of Payment. Unless mutually agreed otherwis e, the VECP approval process will occur in three steps: (A) Conceptual VECP submission and review, (B) Detailed VECP submission and evaluation, and if approved, (C) Contract Modification, including the amount of payment due to the Contractor and credit due to the Department. When the nature and scope of a VECP warrants, the parties may agree to truncate the VECP approval process. 109.6.2 Conceptual VECP

VECP” to the Resident. The Conceptual VECP is not a formal and complete submittal based upon detailed technical analysis, but instead relays a conceptual idea based upon the Contractor’s knowledge and experience. The Conceptual VECP should include the following information:

includes the basic differences between the existing Contract and the proposed change.

advantages and disadvantages of the VECP, including effects on function, serviceability, safety, durability, maintainability, aesthetics, and any other factors significantly altered by the VECP.

109.6.4(C) - Contract Modification - Amount of Payment.

submit a Detailed VECP. Such estimate must specify the date by which the Department must approve the VECP to obtain the maximum cost reduction, and the latest date by which the Department must approve the VECP for the Contractor to avoid significant impacts on the estimated Net Savings or the Contractor's Schedule of Work. If the Department determines that the time for response is insufficient for review, the Contractor will be so notified.

review a Conforming Conceptual VECP and respond to the Contractor within 14 Days of Receipt. The Department may, at its sole discretion, (1) invite the Contractor to submit a Detailed VECP, (2) reject the Conceptual VECP for reasons that will be described briefly, or (3) request additional information. The Department may also, in its sole discretion, agree to partially reimburse the Contractor for the costs to develop and submit a Detailed VECP. 109.6.3 Detailed VECP

shall contain the following information that is sufficient in detail to clearly define and explain the proposed change(s):

VECP, including the general description of the VECP, advantages and disadvantages, use, or testing performed, elsewhere, a detailed computation of the estimated Net Savings generated in accordance with Section 109.6.4(C) - Contract Modification - Amount of Payment, actual VECP development costs to date, and estimated savings and schedule impacts, including approval date(s) required. If the Department determines that the time for response is insufficient for review, the Contractor will be notified promptly.

to the original Contract features and requirements. All VECPs that require engineering design, computations, or analysis shall be prepared under the responsible charge of, and sealed by, a Professional Engineer licensed in the State of Maine.

it determines is necessary to properly evaluate the VECP. Where design changes are proposed, such additional information may include results of field investigations and surveys, design computations, specifications, and field change sheets. The Contractor will promptly provide any such requested information.

information to verify the Contractor’s cost analyses.

provide the Contractor with a written response within 14 Days of Receipt of all of the information it has determined is necessary to properly evaluate the VECP. Such response will include a brief description of the Department’s reason(s) for its decision. The Department, at its sole discretion, will either approve the Detailed VECP, approve it with conditions, or reject it. The Department may base its decision on any reason that is in the best interest of the Department, including: (1) unacceptable impact on the function, serviceability, safety, durability, maintainability, or aesthetics of the Project, (2) insufficient testing or use of the VECP concepts elsewhere, (3) insufficient justification of cost savings,

judgment. The Contractor may request that the Department reconsider certain portions of the decision. If requested, the Department will reconsider its decision and then issue a final decision, which is not subject to review or appeal.

Contractor does not desire to proceed with the VECP as approved by the Department, the VECP process will terminate and the Department will reimburse the Contractor for 100 percent of all VECP development costs incurred by the Contractor to date. 109.6.4 Contract Modification - Am ount of Payment If the VECP is approved, or if it is approved with conditions, and the Contractor wants to proceed, a Contract Modification will be executed by the parties. In addition to the requirements of Section 109.8 - Contract Modifications, the VECP will set forth the net savings generated by the VECP, which shall be split equally between the Contractor and the Department, per the following formula: NS = EGS - CDC - DVEC W h e r e : NS = Net Savings generated by the VECP, as determined by the Department. EGS = Estimated Gross Savings, which is the difference between the cost of performing the Work as originally specified in the Contract and the cost of performing the Work as revised by the VECP, at agreed upon or lump sum prices. CDC = Contractor’s Development Costs related to the preparation of the Detailed VECP, including costs of the Contractor’s design subconsultants and Subcontractors. The Department shall reimburse the Contractor for these costs. DVEC = Department’s VE Costs related to review, approval, and implementation of the VECP, including design costs, field inspection, and the value of any Department provided property. Once the Contract Modification is executed, the Contractor may be paid for its actual Development Costs. The Contractor’s share of the Net Savings shall not be disbursed until the Work is complete and the actual Net Savings is known. The Contract Modification shall also set forth any adjustments to Contract Time related to the Work as revised by the VECP, if any. 109.6.5 Subsequent Payment Adjustments Upon Completion of the portion of the Work revised by the VECP, the Department, on its own initiative or upon request by the Contractor, may review the actual net savings realized by the VECP. The Contractor will be afforded an opportunity to review and comment on such a review. If the actual net savings was greater than set forth in the Contract Modification, the increased savings will be shared equally by the parties. If the net savings was less than set forth in the Contract Modification, the reduction in savings will be borne equally by the parties. 109.6.6 General Conditions Regarding VECPs

have the unrestricted right to use any approved VECP, or any VECP in which the Department has reimbursed the Contractor for any portion of the development costs, on other Department Projects without notice, cost, or liability to the Contractor.

for, and submit all proposals initiated by the Contractor’s Subcontractors.

or otherwise before approval of a Detailed VECP. The Contractor is responsible for all Delays caused by the VECP that were not negotiated in the Contract Modification.

Contract.

claim against the Department for additional compensation or time resulting from the Delayed review or rejection of a VECP, including, but not limited to, development costs, loss of anticipated profits, and increased Material or labor costs.

Contract, all VECP decisions by the Department are final and are not subject to the Dispute resolution provisions provided in this Contract or otherwise available at law.

109.7Equitable Adjustments to Compensation and Time

109.7.1 General Equitable Adjustment means an adjustment to c ompensation due to a change in the nature or scope of Work as defined in this Section 109. This Section 109.7 applies to all changes to the nature or sco pe of the Work excepting (A) changes in quantities, which are governed by Section 109.1, (B) elimination of items of Work which is governed by Section 109.2, and (C) payment for Value Engineering Change Proposals, which is governed by Section 109.6. 109.7.2 Basis of Payment Adjustments will be established by m utual Agreement based upon Unit or Lump Sum Prices that include labor, materials, equipment, mark-up, overhead, profit, and time. These agreed upon Unit or Lump Sum prices will be full compensation and no additional overhead, profit, mark-ups, or fees are allowed. If Agreement on Equitable Adjustments cannot be reached, the Contractor shall accept payment on a Force Account basis as provided in Section 109.7.5 - Force Account Work, as full and complete compensation for all Work relating to the Equitable Adjustment. 109.7.3 Reserved 109.7.4 Non-Compensable Items The Contractor is not entitled to compensation or reimbursement for any of the following items:

Bidding opportunities, and insolvency,

fees, expert witness fees, claims preparation expenses, and costs related to DRB proceedings, mediation, arbitration, or litigation, and

109.7.5 Force Account Work Compensation for Force Account Wor k will be computed according to this Section.

actually engaged in the changed Work and the foreperson in direct charge of the changed Work as determined from certified payrolls, plus 90 percent of the sum thereof for all fringe benefits, payroll taxes, overhead, and profit.

will receive the Actual Cost of Materials, including freight and Delivery charges (but excluding any sale or use tax) plus a single 15 percent markup. For all Materials not incorporated in the permanent Work, the Contractor will receive the difference of actual value of such Material at the time of its use less the fair salvage value of Material when released, plus 15 percent of said difference. There shall be no markup on markups.

other Equipment, the Contractor will receive the rental rates for the actual time to the nearest ¼ hour that such Equipment is in operation on the Work. Time spent moving Equipment within the Project Limits and any approved idle time may be measured for payment when authorized. Time spent servicing, maintaining, and changing attachments will not be paid for. The rental rates shall include the cost of all fuel oil, lubrication, supplies, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, small tools, and all other Incidentals. The maximum Hourly Equipment rental rates (R) will be determined using the most current Blue Book rates and the following formula: R = A x B x E + C + D W h e r e : A = Blue Book monthly rate divided by 176 B = Blue Book regional adjustment factor for Maine C = Blue Book estimated operating costs per hour D = Operator’s hourly payroll rate plus 90 percent E = Factor from the Rate Adjustment Table for the year the mac hine was made When the Contractor’s Equipment is ordered to be available for Force Account Work, but is idle for reasons not the fault of the Contractor, standby time will be paid at 70% of the hourly Equipment rental rate excluding all operating costs. For each piece of Equipment, the Contractor shall provide the following information: the manufacturer’s name, Equipment type, year of manufacture, model number, type of fuel used, horsepower rating, attachments required, together with its size or capacity and any further information necessary to ascertain the proper rate. The Contractor shall also provide a photocopy of the appropriate pages from the Blue Book that were used to arrive at the rates and prepare a chart that fully shows all the details of the Equipment costs. Unless otherwise specified, manufacturer’s ratings and manufac turer-approved modifications will be used to classify Equipment for the determination of applicable rental rates. A unit of at least the minimum rating recommended by the manufacturer shall power equipment that has no direct power unit. If the Department specifies Equipment not listed in the above publication, the Department will establish a reasonable rate for such Equipment. If requested by the Department, the Contractor will produce cost data to assist the Department in the establishment of such rental rate, including all records that are relevant to the Actual Costs including rental Receipts, acquisition costs, financing documents, lease Agreements, and maintenance and operational cost records. Equipment leased by the Contractor for Force Account Work and actually used on the Project will be paid for at the actual invoice amount plus 10% markup for administrative costs.

the Contractor above the grade of foreman or having general supervision of the Work will be included in the labor items as specified above, except when the Contractor’s entire on- site Workforce is occupied with Force Account Work, in which case, the salaries of the Superintendent may be included in the labor item specified above when the nature of the Work is such that their services are required, as determined by the Department.

supported by Receipted Invoices for all Materials used and transportation charges. If Materials used on the Force Account Work are not specifically purchased for such Work but are taken from the Contractor’s stock, then instead of Invoices, the Statements shall contain or be accompanied by an affidavit of the Contractor certifying that such Materials were taken from stock, that the quantity claimed was actually used, and that the price and transportation claimed represent the Actual Cost to the Contractor, excluding storage costs. No payment will be made for Work performed on a Force Account basis until the Contractor has furnished duplicate itemized Statements of the cost of such Force Account Work detailed to the following: 1) Name, classification, date, daily hours, total hours, rate, and amount for each foreman and laborer. 2) Designation, dates, daily hours, total hours, rental rate, and amount for each unit of Equipment. 3) Quantities of Materials, prices, and amounts. 4) Transportation charges on Materials.

utilizes Subcontractors, the Contractor will be allowed a maximum markup of 5% for profit and overhead on the Subcontractor’s portion of the Force Account Work. If the Department does not accept the Subcontractor quote, then the Subcontractor work will be subject to the Force Account provisions with a 5% markup for profit & overhead.

109.8Contract Modification Excepting changes to quantities a s provided in Section

109.1.1 - Changes Permitted, all changes to the Contract that affect compensation, time, or quality must be made by written Contract Modification. The Contract Modification will describe the underlying issue that resulted in the Contract Modification and will specify adjustments to compensation, time, or other Work requirements, as applicable. If adjustments to compensation or time are not shown on the face of the Contract Modification, then there are no such adjustments. All Contract Modifications must be signed by the Project Manager or Resident. By signing a Contract Modification, the Contractor agrees to all the terms thereof and waives any and all claims for additional compensation, time, or other Work requirement adjustments relating to the issue that is the subject of the Contract Modification. All Contract Modifications are to be noted in Progress Meeting minutes.