104.01 Intent of Contract
Furnish all resources required to complete the work under the contract within the specified time, and for the amount bid.
104.02 Differing Site Conditions, Suspension of Work, and Significant
CHANGES IN THE CHARACTER OF WORK
104.02.1 Differing Site Conditions
During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions must promptly notify the other party in writing of the specific differing conditions before they are disturbed and before the affected work is performed. Upon written notification, the Project Manager will investigate the conditions. If the Project Manager determines that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding loss of anticipated profits will be made and the contract modified in writing accordingly. The Project Manager will notify the Contractor of the determination whether or not an adjustment of the contract is warranted. No contract adjustment, which results in a benefit to the Contractor, will be allowed unless the Contractor has provided the required written notice. No contract adjustment will be allowed under this clause for any effects caused on unchanged work.
104.02.2 Suspensions of Work Ordered by the Project Manager
If the performance of all or any portion of the work is suspended or delayed by the Project Manager in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the Contractor must submit in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. Set forth the reasons and support for such adjustment in the request. Upon receipt, the Project Manager will evaluate the Contractor’s request. If the Project Manager agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the Project Manager will make an adjustment (excluding profit) and modify the contract in writing accordingly. The Contractor will be notified of the Project Manager’s determination as to whether or not an adjustment of the contract is warranted. No contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided for or excluded under any other term or condition of the contract. 104 – SCOPE OF WORK 2020 EDITION V5.1 104-2
104.02.3 Significant Changes in the Character of Work
A.Major Item. The Project Manager reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations do not invalidate the contract nor release the surety, and the Contractor agrees to perform the work as altered. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment must be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the Project Manager may determine to be fair and equitable. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract. The term “significant change” applies only to the following circumstances:
1.When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or,
2.When a major item of work, as defined in Subsection 101.03 , is increased in excess of 125% or decreased below 75% of the original contract quantity. Any allowance for an increase in quantity will apply only to that portion in excess of 125% of the original contract item quantity, or in case of a decrease below 75%, to the actual amount of work performed.
B.Minor Item. The Project Manager reserves the right to make, in writing, at any time during the work, changes in quantities and alterations in the work as are necessary to satisfactorily complete the project. These changes in quantities and alterations do not invalidate the contract nor release the surety, and the Contractor agrees to perform the work as altered. If the alterations or changes in quantities change the character of the work under the contract, whether such alterations or changes are in themselves changes to the character of the work or by affecting other work cause such other work to become different in character, an adjustment, excluding anticipated profit on unperformed work, may be made to the contract. The basis for the adjustment must be agreed upon before the work is performed. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the Project Manager may determine to be fair and equitable. If the alterations or changes in quantities do not change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract. A change in character applies when one or more of the following circumstances is met:
1.When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction.
2.When an item of work, not defined as a major item in Subsection 101.03 , is increased in excess of 150% or decreased below 50% of the original contract quantity. Any allowance for an increase in quantity will apply only to that portion in 2020 EDITION V5.1 SCOPE OF WORK – 104 104-3 excess of 150% of the original contract item quantity, or in case of a decrease below 50%, to the actual amount of work performed.
104.02.4 Change Orders
Change orders will include the following information:
A.A description of the altered, increased, or decreased work or description of other change necessitating the change order.
B.An estimate of the types and quantities of work to be performed and a listing of the agreed prices and contract unit prices at which payment will be made; and
C.Contract time adjustments in accordance with Subsection 108.07.5 . Change orders must be executed by both parties to the contract and become a part of the contract. Payment for the work will be made for the actual quantities of work performed at the prices specified in the change order.
104.03 Extra Work
Perform unanticipated work, not included in the contract, if the work is related to the contract items and is ordered before the final acceptance date. Perform extra work as directed. Payment for extra work is made in accordance with Subsection 109.04.
104.04 Miscellaneous Work
This is any minor work or material that is necessary to the work. Miscellaneous work, as provided for in the contract, is measured by the respective unit for either the material or work performed, as directed in writing by the Project Manager. Payment for miscellaneous minor work is at agreed prices or on a force account basis.
104.05 Maintenance of Work
104.05.1 General
Perform maintenance work on completed and uncompleted parts of the project until approval in accordance with Subsection 105.17.2. Maintenance includes, but is not limited to the following:
1.Controlling dust 24 hours a day, 7 days a week in accordance with Subsection 618.03.16
2.Patching chuck holes with asphalt mix.
3.Reshaping the subgrade, side slopes, ditch sections, or aggregate courses, as necessary.
4.Cleaning debris from drainage courses, culverts, and inlets.
5.Removing rocks or earth from the roadway and ditch sections.
6.Removing debris resulting from construction activities.
7.Providing access to residences, businesses, and roads and keeping the present accesses open.
8.Repair or replace minor damaged parts of the work.
9.Repair or replace extensive damage, not by Contractor negligence, in accordance with Subsection 104.02.4 ;
10.Maintenance of the constructed roadway in accordance with Subsection 203.03.5.
11.Disposing of removed matter.
12.Maintenance of irrigation water in accordance with Subsection 104.05.6; and 104 – SCOPE OF WORK 2020 EDITION V5.1 104-4
13.Other maintenance-type work not specifically described but necessary for the maintenance and protection of traffic or of completed and uncompleted portions of the project. Maintenance work performed before approval in accordance with Subsection 105.17.2 is incidental to other contract items.
104.05.2 Failure to Properly Maintain Roadway or Structure
The Project Manager will immediately notify the Contractor if it fails to maintain the project. Failure to begin to remedy unsatisfactory maintenance within 4 hours of notification may result in: • The Department performing the required repair. The cost of the repair will be deducted from monies due or to become due to the Contractor, or otherwise be billed to the Contractor. • Contract time being charged. Contract time will be charged starting on the day of the Department’s initial notification and will continue until the repairs are made and the Project Manager approves the repairs. A $500 per day road user fee may be charged for each day maintenance is not complete.
104.05.3 Maintenance for Traffic and Detours
A.Maintenance for Traffic. Keep the road open to traffic during the work or provide detour roads as specified or directed. Maintain the work under construction to accommodate traffic. Construct and maintain all accesses to parking lots, garages, businesses, residences, farms, etc. The cost of this work is incidental to other items of the contract. Provide traffic control meeting the approved traffic control plan, Section 618 , and the MUTCD.
B.Special Detours. When the contract has the bid item Detour - Construct, Maintain, and Remove, it includes constructing and maintaining the detour, including constructing and removing temporary bridges, pipes and associated work and obliterating the detour road. Do not use all or any portion of an existing structure, as defined in Subsection 101.03, without the Engineer’s approval. Do not modify existing structures or construct temporary structures without Department approval before starting work. This work is incidental to the contract item. The Department will provide the R/W for temporary detours or bridges specified in the contract.
104.05.4 Maintenance for Traffic During Work Suspensions
A.Temporary Suspension. Make passable and open to traffic all portions of the project, connections, and temporary roadways before temporary work suspensions. Maintain parts of the project, connections, temporary roadways, and detours under traffic at Contractor expense during work suspensions.
B.Winter Suspension. Be responsible for all traffic control and maintenance during winter weather shutdowns, including the time between November 16 th and April 15th. Be responsible for all snow removal, sanding, and de-icing for all roadways not completed through the first lift of plant mix surfacing. Furnish all necessary supervision, personnel, and equipment to maintain the road in a safe condition and at the highest level of service to traffic. 2020 EDITION V5.1 SCOPE OF WORK – 104 104-5 The Department is not responsible for any repairs or maintenance to the project that results from snow plowing, sanding, and de-icing on any roadway not completed through top lift of plant mix surfacing. The Contractor may request on form MDT-CON-104-05-4A that the Department furnish all resources to perform snowplowing, sanding, and de-icing during winter suspension. If this request is accepted, this work will be detailed in a written agreement. Be responsible for all maintenance, traffic control, and other work not detailed in the agreement. Reimburse the Department, under an accounts receivable, for all Department plowing, sanding, and de-icing expenses according to the terms of the signed agreement. Attend a meeting scheduled by the Department to review the project to develop the agreement details prior to the winter suspension. Inspect the project at least once every 14 calendar days. Submit form MDT-CON-104-05-4 within 3 calendar days of the inspection. Failure to maintain the project under these requirements will invoke Subsection 104.05.2. Repair or replace all work and materials lost or damaged due to temporary use of the project. Maintenance work for acts of God or acts of the public enemy, or that are outside the Contractor’s control during work suspensions is paid for at contract unit prices or as extra work.
104.05.5 Reserved
104.05.6 Maintenance of Irrigation Water
Construct or move irrigation structures, boxes, channel changes, and culverts to maintain irrigation water flow at Contractor expense. Do not shut off irrigation water in an irrigation ditch without the water-master or ditch owners written permission.
104.06 Material and Property Rights
104.06.1 Rights in and Use of Materials Found on the Project
Submit a request for and obtain written approval from the Project Manager prior to using excavation for other contract items. If an agreement is reached, the Department will pay the as bid unit price for excavation or the as bid unit price for materials produced, whichever is greater. Include in the request the soil classification of replacement material and any other relevant details. If the excavated material is used, other than as intended, but was needed for embankments, backfills, approaches, or other purposes, provide an acceptable replacement material at no additional cost to the department. Do not excavate or take material outside the slope stake limits without the Project Manager’s written approval. The right to use and process material found within the project limits excludes the use and processing for noncontract work. If the Contractor produces or processes more material from the project than is required for the contract, without additional compensation to the contractor, the department may:
1.Take possession of the excess material and direct its use; or,
2.Require removal of the material and restoration of the land to a satisfactory condition.
104.06.2 Use of Department Property
Do not use Department property outside the project limits for contractor operations, such as staging, without Department approval. Submit an encroachment permit to the Department’s Maintenance Division for approval. The encroachment permit request form is available from the Department’s website or the Project Manager. Be responsible for all requirements within the 104 – SCOPE OF WORK 2020 EDITION V5.1 104-6 encroachment permit and obtain associated environmental permits prior to the use of the property. Restore the property in accordance with the contract and encroachment permit requirements no later than the encroachment permit end date. Obtain seed blend mix designs and allowed seeding time frames from the Project Manager for any re-vegetation required to the area. Repair damaged areas in a timely manner. The Department will revoke the use of Department property if the requirements of the contract or the encroachment permit are not being met. The use of Department property outside the project limits, including any required restoration or repair work, is not measured for payment. Contractor failure to fulfill the encroachment requirements is cause for the Department to perform or have corrective actions performed and deduct those costs from monies due or that may become due the Contractor.
104.07 Final Cleaning Up
Clean the highway, borrow pits, and all ground used in performance of the work of all rubbish, debris, excess materials, temporary structures, and equipment before final acceptance. Meet the requirements of Subsection 106.02.5 for final cleanup of borrow and aggregate sources. The final cleanup work of the project area and the pits, borrow areas, or quarries is not paid for directly but is incidental to other contract items. Specify the conditions for final cleanup in all landowner agreements. Complete all cleanup conditions before final project acceptance.
104.08 Value Engineering Proposals
Cost savings generated on the contract from cost reduction proposals offered by the Contractor and approved by the Department will be shared. The Contractor is encouraged to submit proposals for modifying the contract that reduces the total cost of construction. The cost reduction proposal must not impair the essential functions or characteristics of the project including but not limited to service life, economy of operation, ease of maintenance, reliability, desired appearance, and safety. Schedule a meeting with the Engineer to present the proposed changes to the work. Topics discussed should include the following:
1.Cost of performing the work as bid.
2.An estimate of the cost of the proposed change; and
3.An estimated time frame for the Department to review. The Department will determine if the proposed change will be further reviewed. Upon agreement that the proposal will be reviewed, submit a complete proposal in writing and include the following information:
1.A description of both the existing work and proposed changes for performing the work with a discussion of the comparative advantages and disadvantages.
2.An itemization of the necessary changes to the contract if the proposal is accepted.
3.A detailed cost estimate for performing the work under the existing contract and under the proposed change detailing quantities and dollar amounts for each work item.
4.An estimate of the effect the proposed changes would have on other costs to the Department. 2020 EDITION V5.1 SCOPE OF WORK – 104 104-7
5.A time frame within which the Department must decide.
6.The dates, project numbers and the action of the Department if the proposal was previously submitted; and
7.A statement of the effect implementation of the proposal would have on the contract completion time. The Department is not required to consider a proposal or be liable to the Contractor for failure to accept or act on a proposal submitted under this specification including delays to the work attributable to the proposal. Proposals that are similar to a change in the contract that are under consideration or have been adopted by the Department before the submittal will not be accepted. The Department reserves the right to make these changes without compensation to the Contractor. Continue to perform the work according to the contract requirements until the Department has taken final action on the proposal. Consider the proposal rejected if the Department’s final decision is not received within the time frame specified in the Contractor’s submittal. The Department will determine the acceptability and the estimated net savings in construction costs from the adoption of all or part of a proposal. The Department will disregard the contract unit prices if these prices do not represent a fair measure of the value of work to be performed or to be deleted. The Department’s costs for reviewing and implementing proposals, including any increased costs to the Department resulting from its application will be deducted from the total estimated cost saving to arrive at the net savings. Costs incurred by the Department during a preliminary review will not be charged to the Contractor. If the proposal is advanced to the detailed review stage, costs incurred by the Department during the detailed review stage will be shared equally by the Department and the Contractor. The submittal of a formal proposal constitutes the Department’s authority to deduct these costs from any monies due or that may become due to the Contractor under the contract. The Department costs for researching and defending claims related to an accepted VE Proposal will not be shared equally. These costs will be deducted from progress payments. Proposals accepted by the Department in whole or in part will be by a change order. The change order will incorporate the changes in the contract necessary to implement the proposal and will include any conditions placed on the approval by the Department. The change order will establish the estimated net savings in the cost of performing the work attributable to the proposal and provide for payment of 50% of the estimated net savings to the Contractor. Acceptance of proposals does not extend the contract time unless specifically provided for in the change order. The payment amount specified in the change order constitutes full compensation to the Contractor for the proposal and the performance of the work. The Department reserves the right to apply a proposal for general use on other contracts administered by the Department. When an accepted proposal is applied for general use, only the Contractor who submitted the initial proposal is eligible for compensation and this compensation applies only to those contracts awarded to the Contractor before submission of the accepted proposal. Proposals that are identical or similar to previously submitted proposals are eligible for consideration and compensation under this specification if the proposals were not previously adopted for use in other contracts administered by the Department. Subject to these provisions, the Department reserves the right to use all or any part of any submitted proposal without obligation or compensation to the Contractor. This specification applies only to the Contractor awarded the contract. 104 – SCOPE OF WORK 2020 EDITION V5.1 104-8 No consideration will be given to, and no payment made for any claims for additional compensation for changed conditions that are attributable to the approved proposal.
104.09 Construction Change Directive
If the Department determines that the Contractor is due additional compensation, time, or both, but the Department and the Contractor cannot reach an agreement, the Department may issue a Construction Change Directive. The Contractor reserves the right to pursue a claim for any disputed construction change directive in accordance with Subsection 105.16 .
Referenced in this section
Scope of Work in other states
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Source: Standard Specifications for Road and Bridge Construction, 2020 (v5.1) Edition. Pages 61–68 of 611. View official source ↗