1806Determination and Extension of Contract Time

1806.1GENERAL

The Proposal Package will specify the Contract Time. The Contractor shall prosecute the Work continuously and effectively, with the least possible delay, to the end that all Work is completed within the Contract Time. If the Department issues a Notice to Proceed, the Contract Starting Date established in the Notice to Proceed takes precedence over the Contract Starting Date specified in the Proposal Package. The Department will not consider a plea by the Contractor that the Contract Time was not sufficient as a valid reason for an extension of the Contract Time. If the Department grants an extension of the Contract Time, the extended time for completion will be in full force and effect as though it was originally specified. The Department will only extend the Contract Time if an excusable delay, as specified in 1806.2, “Excusable, Non-Compensable Delays,” or 1806.2B, “Excusable, Compensable Delays,” delays Work on the Critical Path as described in items 1, 2, 3, and 4, below. Mitigation of delay, whether caused by the Department, Contractor, a third- party, or an event, is a shared Contract and legal requirement. Mitigation efforts include, but are not limited to, resequencing W ork Activities, acceleration, and continuation of Work through an otherwise planned shutdown period. The Contractor and Engineer will explore and discuss potential mitigation efforts promptly and agree upon costs or cost-sharing responsibilities prior to the implementation of mitigation efforts. The Department will not evaluate a request for extension of the Contract Time unless the Contractor notifies the Engineer as specified in 1403, “Notification for Contract Revisions,” and provides the required analysis as follows. The Contractor shall evaluate delays and calculate the appropriate time extension due based on the following:

time extensions due on the schedules submitted to and accepted by the Department . The Contractor shall not use schedules that did not exist on the P roject or create schedules after the delay has occurred to demonstrate entitlement to a time extension.

extensions of time on the Critical Path as established by the schedules submitted to and accepted by the Department. The Contractor is not entitled to a time extension for delays that do not delay the Critical Path.

will vary depending on the nature and timing of the delay and whether the Contract Time is measured in Working Days, Calendar Days, or based on a fixed Completion Date. It will also vary depending on whether the Contract requires a B ar Chart or CPM Schedule.

most current schedules submitted to and accepted by the Department. For example, if the Department determines that Extra Work is required and the Change Order adding this Work will be dated June 2, then the determination of the time extension due the Contractor will be based on the last schedule submitted and accepted by the Department prior to June 2 of the same year.

Recommended Practices published by the Association for the Advancement of Cost Engineering:

Applied in Construction. The Contractor shall use this Recommended Practice for delays that are in the future (prospective). The Contractor shall not use this recommended practice to evaluate delays that have already occurred (retrospective).

Observational/ Dynamic/Contemporaneous Split approach. The Contractor shall use MIP 3.4 when evaluating delays that have already occurred. The Engineer will review the Contractor’s evaluations and calculations and determine the time extension due, if any. The Engineer will measure extensions to the Contract Time in Working Days for Working Day Contracts and in Calendar Days for Completion Date and Calendar Day Contracts. The Department will relieve the Contractor from associated liquidated damages, as specified in 1807, “Failure to Complete the Work on Time,” if the Department extends the Contract Time under this section.

1806.2TYPES OF DELAYS

A Excusable, Non-Compensable Delays Excusable, non-compensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility, and that could not have been foreseen by the Contractor . The Department will not compensate the Contractor for excusable, non-compensable delays. Excusable, non-compensable delays include, but are not limited to:

cataclysmic phenomena of nature

quarantine

specified in 1806.3, “Determination of Charges on Working Day Contracts,” and 1806.4, “Extension of Contract Time Due to Weather on Calendar Day and Completion Date Contracts”

or avoid resulting from freight embargoes, government acts, or regional Material shortages

supplier’s power to settle and are not caused by improper acts or omissions of the Contractor, Subcontractor, or supplier

Department

could not have been foreseen by the Contractor B Excusable, Compensable Delays Excusable, compensable delays are delays that are not the Contractor’s fault or responsibility, and are the Department’s fault or responsibility, or are determined by judicial proceeding to be the Department’s sole responsibility. Excusable, compensable delays include, but are not limited to:

“Significant Changes to the Character of Work,” and 1402.5, “Extra Work”

as a concurrent move or Activity by the Contract

Work Ordered by the Engineer”

C Non-Excusable Delays Non-excusable delays are delays that are the Contractor’s fault or responsibility. All non- excusable delays are non-compensable. Non-excusable delays include, but are not limited to:

mismanagement

Material was available in warehouse stock, or when delivery was delayed for reasons of priority, late ordering, financial considerations, or other causes

maintain satisfactory progress in completing the Controlling Activities

to provide and maintain the Equipment in good mechanical condition or to provide for immediate emergency repairs

foreseen or anticipated before the date of bid opening Weather delays are addressed in 1806.3, “Determination of Charges on Working Day Contracts,” and 1806.4, “Extension of Contract Time Due to Weather on Calendar Day and Completion Date Contracts.” D Concurrent Delays Concurrent delays are independent sources of delay that occur at the same time. When a non- excusable delay is concurrent with an excusable delay, the Contractor is not entitled to an extension of

Contract Time for the period the non-excusable delay is concurrent with the excusable delay. When a non-compensable delay is concurrent with a compensable delay, the Contractor is entitled to an extension of Contract Time, but not entitled to compensation for the period the non- compensable delay is concurrent with the compensable delay.

1806.3DETERMINATION OF CHARGES ON WORKING DAY CONTRACTS

A Working Day Determination The Department will determine Working Day charges as follows:

made progress during a Working Day on one or more Critical Activities for at least 6 continuous hours

fault or negligence

Delays”

have made progress during a Working Day on one or more Critical Activities for at least 2 continuous hours B Working Day Charges The Department will not charge a Working Day:

2 continuous hours during a Working Day due to:

Non-Compensable Delays”

Compensable Delays”

result in traffic restrictions

1402.4, ”Suspensions of Work Ordered by the Engineer,” except for Work suspensions ordered by the Engineer for reasons of Contractor’s fault or negligence C Working Day Addition or Subtraction The Department will add or subtract Working Days via Change Order to the Contract. The number of Working Days to be added or subtracted will be determined as specified in Error! Reference source not found., “Determination and Extension of Contract Time, General”:

Changes to the Character of Work”

The Engineer will furnish the Contractor a weekly statement showing the W orking Days charged to the Project, except during periods when the Engineer determines that Working Day charges will not be made. The statement will include an accounting of all delays affecting the Critical Path . The Engineer will classify each of these delays as excusable, non-compensable; excusable, compensable; or non-excusable, in

accordance with 1806.2, “Types of Delays,” or weather-related in accordance with 1806.3, “Determination of Charges on Working Day Contracts,” and 1806.4, “Extension of Contract Time Due to Weather on Calendar Day and Completion Date Contracts.” The Engineer will commence assessing Working Day charges on the Contract Starting Date and cease when the Contractor has completed all Work, including maintenance and final cleanup operations . However, assessments will be made for Work conducted before the Contract Starting Date when the operations in progress result in traffic restriction. In that case, the Work causing the traffic restriction will be considered Critical Path Work and Working Days will be assessed. Objections by the Contractor as to an improper or excessive assessment of W orking Day charges shall be in the form of a written protest to the Engineer, within 10 Calendar Days of receipt of statement, setting forth the specific dates and justifications for reduced charges . If the Engineer finds the Contractor’s protest to be valid or if the Department detects an error, the Engineer will issue corrected weekly statements . Once accepted by the Contractor, whether explicitly or as a result of the Contractor’s failure to file a timely protest, the weekly statement is final and the Contractor waives entitlement to an extension of Contract Time or compensation for any delays not explicitly identified by the weekly statement . In case of disagreement, the Contractor may request an administrative review of contested charges by the State Construction Engineer.

1806.4EXTENSION OF CONTRACT TIME DUE TO WEATHER ON CALENDAR DAY AND COMPLETION

DATE CONTRACTS The Department will not consider weekends or Holidays as eligible for extensions of Contract Time due to weather unless the Engineer directs the Contractor to W ork those days, or the Contractor’s accepted Progress Schedule in place at the time the delay occurred indicated that the Contractor intended to perform Critical Path Work on those days. Unless modified in the Special Provisions, the Department will not consider any days between November 15 and April 15, inclusive, as eligible for extensions of Contr act Time due to weather unless the Engineer directs the Contractor to Work those days. The Contractor may propose to Work between November 15 and April 15 with the Engineer’s written approval, but any delays to Work due to weather in this time frame will be considered non-excusable in accordance with 1806.2C, “Non-Excusable Delays.”