108Prosecution and Progress

108.01SUBCONTRACTING OR ASSIGNMENT OF CONTRACT

.1 Subcontracting

Do not subcontract, assign, or otherwise dispose of more than 60% of the original contract cost without the written consent of the surety and the Department. Table 108-1 illustrates when an executed subcontract is required. The table is not all- inclusive but shows examples. When required, a final determination will be made by the CES Engineer. TABLE 108-1 SUBCONTRACT REQUIREMENTS Activity Subcontract Required Payroll Required Physical work within the project limits Yes Yes Material application (dust palliative, water, oil products, etc.) Yes Yes Commercially supplied materials No No Owner/Operator of heavy haul trucks only No No Crushing operations at a commercial site dedicated to the project No No Crushing operations at a non-commercial site dedicated to the project Yes Yes Concrete pump truck with operator Yes Yes Concrete truck delivery No No Equipment rental with operator (Example: crane) (Contact CAS for determination for other specialty equipment) Yes Yes Equipment rental without operator No No Work performed by a different Contractor’s employee (reported on the Prime’s payroll) No Yes From Prime Survey work Yes No Engineering/Consultant services within the project limits (Example: Concrete Testers, Blasters) Yes No Engineering/Consultant services not within project limits No No *In order for a Contractor to add another Contractor’s employee to their payroll, they will need the following information: employees legal name, ethnicity, gender, last 4 of their social security number, pay rate, detailed fringe distribution. The same criteria apply to work added by a change order. A subcontract is required for work performed by a Subcontractor at any level (second-tier, third-tier, etc.) of the contract. Ensure all subcontracts are submitted through the Prime Contractor. Include the following language in the subcontract: “In consideration of being awarded this subcontract, and in consideration of having this subcontract approved by the State of Montana, the Subcontractor – PROSECUTION AND PROGRESS 2020 EDITION V5.1 hereby assigns to the State of Montana any and all claims or causes of action for any antitrust law violations, or damages arising there from, as to goods, materials, and services purchased under the terms of this subcontract or any change order that may result from this subcontract.” Do not hire or use in any manner a person or organization that performed any part of the design work for the Department unless first approved by the Department. Geotechnical firms who have performed project design work are approved to perform dynamic and static load testing of piles or thermal integrity testing of drilled shafts on the project.

.2 Contract Performance

Perform at least 40% of the original contract cost with the Contractor’s organization. The price of items designated in the contract as “Specialty Items” will be subtracted from the original contract price before the amount required to be performed by the Contractor is calculated. “Specialty Items” are defined as work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract. Where an entire item is subcontracted, the percentage of the work subcontracted is based on the original contract item unit price. When a portion of an item is subcontracted, the percentage of the work subcontracted will be based on either the subcontract item unit price or on an estimated percentage of the contract item unit price, determined by the CES Engineer. An item will not be considered partially subcontracted unless the prime contractor performs a portion of the work (equipment, materials, or labor). If the same item is subcontracted at multiple levels, the cost is only accounted for at the first level. When an item added by change order is subcontracted, the cost of the item does not count towards the required contract performance in Subsection 108.01.1 . Do not allow a Subcontractor at any contract tier to start work until a subcontract is consented to by the CES Engineer. Submit fully executed subcontracts in electronic DocuSign PDF format. Scanned PDF subcontracts are not acceptable. Include the Consent of Surety language and Subcontractor Checklist as part of the subcontract agreement, referenced on the Subcontracting Resources webpage: https://www.mdt.mt.gov/business/contracting/resources.shtml Inform the Subcontractor of all the contract provisions, and that the Subcontractor is bound by all terms of the prime’s contract with the Department. Provide the Subcontractor a copy of all the contract provisions including the applicable Federal Prevailing Wage rates and required contract provisions FHWA 1273. Include in the subcontract the following language: “The Subcontractor agrees to comply with all of the labor provisions contained in the attached Required Contract Provisions and Federal Prevailing Wage/Davis Bacon Wage Decision.” All subcontractors are agents of the Contractor. The Contractor is responsible for all work, material furnished, project documentation provided by, and indebtedness incurred by its subcontractors. Department approved consent to subcontract, assign or transfer the contract does not release the Contractor from liability under the contract and bond.

.3 Subcontractor Payments

Submit payment information for all subcontractors and suppliers within the timeframes shown. 2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108 • Prime contractors with first tier subcontractors or suppliers within 7 calendar days of payment from the Department. • Subcontractors with lower tier subcontractors or suppliers within 7 calendar days of payment from their parent contractor. Notify the Department if payments will be withheld from subcontractors or suppliers. The Department will withhold that amount from payment to the Prime until the dispute has been resolved. In accordance with MCA 28-2-2110 , retainage may not be withheld from subcontractors. Submit payment information at the following link: https://app.mdt.mt.gov/spr/

108.02NOTICE TO PROCEED

Work is to begin, and time charges start on the date stipulated in the Notice to Proceed. Do not begin actual work nor permit subcontractors to begin work until all Subsection 103.07 requirements are met. If work cannot begin on the date in the Notice to Proceed due to reasons beyond the Contractor’s control, these conditions, dates, and reasons will be recorded in the weekly Assessment of Contract Time report and no time will be charged. Begin work when the Project Manager determines and issues a notice to resume work and that assessment of contract time will start.

108.03PROSECUTION OF WORK

.1 General

Begin obtaining all air quality, water quality and storm water runoff permits, approval of reclamation plans, and archaeological and historical clearances immediately upon receipt of the notice of contract award letter from the Department. Furnish the completed applications to secure permits, approvals, or clearances as they are submitted to the respective agency. Furnish approved permits, reclamation plans and clearances necessary to complete the work in conformance with all federal, state and contract requirements. The Department will reimburse all reasonable costs incurred in securing the permits, approvals, and clearances if the Department does not execute the contract for reasons outside its control. A pre-construction conference will be held on a mutually agreed date between the Contractor, Department and other parties interested in the work before work within the project limits begins. For projects with Notice to Proceed dates from March 1 through October 31 hold the pre-construction conference no later than 20 calendar days after the Notice to Proceed date. For projects with Notice to Proceed dates from November 1 through February 28 hold the pre-construction conference no later than March 20. The Contractor’s superintendent in charge of the project must attend the conference. Encourage subcontractors to attend. Obtain written approval a minimum of 5 calendar days before starting night work. Provide work area non-glare lighting for night work meeting the requirements of Subsection 210.03.8 . Night work approval may be rescinded at any time. Suspending and resuming work on all or a part of the contract will be by Subsection 105.01. Work may be suspended on working day contracts for unsuitable weather or for other conditions that are detrimental to the work accuracy and quality. Prevent damage and repair damaged work that was not protected during the suspension at Contractor expense. No time extensions will be approved for work to correct non-protected work. – PROSECUTION AND PROGRESS 2020 EDITION V5.1 Store materials to protect against damage and without obstructing, endangering, or impeding traffic. Do not allow water to pond on the roadway or within the construction limits, excluding environmental protective devices. Open ditches and shoulder drains and take other actions to protect the public and the work. The Department does not authorize project suspension by the Contractor and time will be charged during unauthorized project suspensions. If the Contractor suspends the project, provide written notification of the suspension 7 calendar days before the suspension. The Contractor is responsible for all maintenance required during unauthorized suspensions and for all work and materials required due to the suspension.

.2 Project Schedules

requirements, submit a schedule in accordance with the Table of Contractor Submittals. No other work, except obtaining permits, may begin until the schedule requirements have been met. No payments will be made on the contract until the submitted schedule is reviewed. Submit a Written Narrative (WN) that details the work and time (working days, calendar days or completion date) to complete the contract. The initial schedule must show that the work will be completed within the time frame specified in the contract. The Contractor may use a CPM schedule as the ASC if it meets the requirements described in Subsection 108.03.2 herein and results in no additional cost to the Department.

1) All work activities with a completion duration of 5 or more working days. (For this requirement, working days do not exclude the period from November 16th through April 15th.) 2) Any work activity that has an impact on completion of the project.

other work activities, permits, plans, submittals, and approvals required to complete the project.

non-working periods exceeding 3 days on each activity bar.

activities listed in Subsection 108.03.2(A)(1) required to complete the contract, including shop drawing submittals, permits (including estimated maximum waiting periods for all required permits), fabrication and delivery activities.

Subsection 108.03.2(A)(1) measured by working day or calendar day, as appropriate.

week, number of shifts per day, hours per shift, size of work crews and resources used.

2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108 Submit an updated ASC and WN every month in which work is performed, one week before the end of the project’s monthly estimate cycle. The ASC and WN should show current progress and all revisions or modifications that reflect changes in the method or manner of the work, specification changes, extra work, changes in duration, changes in shifts, work crews or resources. Any delay in beginning or prosecuting work that is caused by the Contractor’s failure to provide an ASC or WN when and as required is solely the responsibility of the Contractor and is not an excusable delay. Prosecute the work with the resources required to complete the contract within the time shown in the Contractor’s updated ASC and WN. The Department may withhold 10% of each monthly progress estimate for failure to submit an initial or updated ASC or WN on time and in the manner required. Payment withheld for violation of the schedule requirements will be included in the next progress estimate following the Contractor’s submission of the required ASC and WN . The Project Manager’s review does not attest to the validity of the ASC or WN.

Use Primavera P6 to develop, maintain, and provide a detailed time-scaled computer- generated CPM schedule. Submit all schedules as both an .xer file and usable .PDF format. Submit a schedule in accordance with the Table of Contractor Submittals. No other work, except obtaining permits, may begin until the schedule requirements have been met. No payments will be made on the contract until the submitted schedule is reviewed. Schedule all contract work including that of subcontractors, vendors, and suppliers. The baseline schedule must show the contractor’s schedule as proposed at the time of award. All work must be completed within the time frame specified in the contract. The Project Manager may withhold 10% of each monthly progress estimate for failure to submit an original or updated CPM schedule on time and in the manner required. Payment withheld for violation of the schedule requirements will be included in the next progress estimate following the Contractor’s submission of the required CPM schedule. The Project Manager’s acceptance of the CPM schedule does not attest to the validity of the Contractor’s assumptions, logic constraints, dependency relationships, resource allocations, labor and equipment or other schedule aspects.

Subsection 108.03.2(B) . Attend a meeting scheduled by the Project Manager within 10 calendar days of the Project Manager’s receipt of the baseline schedule to discuss, review, correct, or adjust the schedule if required. Make all schedule adjustments and corrections discussed at the meeting and resubmit a revised schedule within 15 calendar days after the meeting.

(3). Include a baseline WN which describes the following:

– PROSECUTION AND PROGRESS 2020 EDITION V5.1

and production rates. Narratives that are a listing of the work will not be accepted.

than or equal to 5 days.

perform each activity. Include and describe all subcontractors/suppliers and the area/location of each activity.

schedule logic.

review/approval of submittals in the schedule logic.

Include weekends, holidays, or other Contractor non-work periods. Use project specific calendars. All activities must contain an appropriate calendar.

needed. Float is defined as the amount of time between when an activity “can start” and when it “must start”. Total float is float shared with all other activities and is defined as the amount of time an activity can be delayed without affecting the overall time of project completion. Float is a shared commodity, not for the exclusive use or financial benefit of either party. Either party has the full use of float until it is depleted. Schedules with negative float will not be accepted unless otherwise approved by the Project Manager. The critical path is defined as the longest continuous sequence of activities through the network schedule that establishes the minimum overall project duration. The submitted activity sequence and durations must generate a CPM schedule having a critical path, using the longest path method. Keep multiple critical paths and near-critical paths to a minimum. Describe multiple critical paths and near-critical paths with thorough and reasonable justification in the written narrative. The Department reserves the right to limit the number of activities on the schedule to between 50 and 1000 activities. All project activity must be identifiable and the progress on each activity must be measurable by the Project Manager at all times.

before the end of the project’s monthly estimate cycle, submit an electronic .xer file using Primavera P6 and a .PDF file containing:

file data date must be within 7 calendar days of the Project Manager’s receipt of the schedule.

schedules. 2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108

• All changes to the critical path. Discuss why the changes occurred and the overall impact to the project. • All critical logic revisions/modifications to the schedule. Include changes in the method or manner of the work, changes in specifications, extra work, changes in duration, etc. • Anticipated problems and/or risk that may impact the schedule. • Changes to anticipated completion dates, milestones, or phases. • Changes to anticipated contractor/subcontractor activity manpower, equipment, unit quantities and production rates. Ensure monthly schedule and WN updates accurately reflect the actual work progress. Correct errors listed by the Project Manager within 3 business days of notification. The contract time will be adjusted only as specified in the contract. Submit documentation to support requests for time extensions for milestone dates or the contract completion date in accordance with Section 108.07 . If the project work is not proceeding consistently with the Contractor’s most recently reviewed project schedule or WN, the Project Manager may suspend work under Subsection

105.01(A)

if the WN or schedule does not accurately reflect the actual progress of the work; the suspension may continue until an accurate WN and schedule is submitted. Attend monthly project progress meetings to compare the schedule to the actual finish dates of completed activities, the remaining duration of uncompleted activities and the proposed logic and/or time estimate revisions. Provide the status of activities at these meetings, and the schedule updates based on this information once it has been verified.

CPM schedule is measured by the lump sum. Other scheduling requirements are not measured for payment.

Payment for all costs associated with CPM scheduling is included in the lump sum contract unit price for CPM scheduling. Payment for all costs associated with other scheduling requirements is included in the payment for other items of work. Failure to submit a revised CPM schedule as specified may also result in withholding 10% of each monthly progress estimate. Payment withheld for violation of the schedule requirements will be included in the next progress estimate following the Contractor’s submission of the required schedule. Partial payments for CPM scheduling will be made based on the lump sum contract unit price as follows:

Failure to submit either an ASC or CPM schedule within 2 calendar days of its due date will result in a monthly deduction in accordance with Table 108-2. – PROSECUTION AND PROGRESS 2020 EDITION V5.1 TABLE 108-2 PROJECT SCHEDULE DEDUCTIONS Original Contract Amount Monthly Deduction From More Than To and Including $ 0 $ 1,000,000 $ 300 $ 1,000,000 $ 3,000,000 $ 700 $ 3,000,000 ― $ 1,000

108.04LIMITATION OF OPERATIONS

Conduct the work to minimize interfering with traffic and work already started. Finish a section of roadway before starting work on any additional sections if it is essential to public convenience.

108.05CHARACTER OF WORKERS

Provide workers with the skill and experience to perform the work. Remove any person employed who does not perform work in a proper and skillful manner or who is intemperate, disorderly, unsafe, or verbally abusive. Employees may not return to the project or communicate with Department personnel without the written approval of the Project Manager. Failure to remove the employee(s) or failure to furnish suitable and sufficient personnel to perform the work may result in a written notice to suspend the work.

108.06METHODS AND EQUIPMENT

Use equipment of the size and mechanical condition to perform and produce the specified quality of work. Do not use equipment that damages the roadway, adjacent property, or other highways. Operate all equipment with adequate lighting at night. Do not use methods or equipment other than as specified unless requested in writing and authorized by the Project Manager. Include in the request a full description of the proposed methods and equipment to be used and the reasons for the change. Produce work meeting the contract requirements. Discontinue use of alternate methods or equipment if the Project Manager determines that the work does not meet contract requirements. Remove and replace or repair deficient work with work of specified quality at Contractor expense. No change will be made regarding payment for authorizing a change in methods or equipment.

108.07CONTRACT TIME AND DETERMINATION OF COMPENSATION AND EXTENSION

OF CONTRACT TIME FOR EXCUSABLE, NONCOMPENSABLE, AND COMPENSABLE DELAYS The contract provisions state the contract completion date, or the allowable number of Calendar or Working Days allotted for completion of the contract work. Do not resume work during an authorized suspension of work without approval from the Project Manager. Do not work on Sundays and Holidays without written approval from the Engineer. Travelway maintenance in accordance with Subsection 104.05.2 , stormwater BMP maintenance, and providing protection for the public are exempt work items and may be performed on No-Work Days without assessment of contract time. 2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108 Meet the requirements in Table 108-3 TABLE 108-3 HOLIDAY CONTRACT TIME ASSESSMENT Holiday: Stop Work by: Return to Work: Memorial Day 3:00pm on the Preceding Friday1 Tuesday Labor Day 3:00pm on the Preceding Friday1 Tuesday When July 4 Occurs On: Stop Work by: Return to Work2: Monday 3:00pm on the Preceding Friday1 Tuesday Tuesday The end of day on the Preceding Friday Wednesday Wednesday 3:00pm on the Preceding Tuesday1 Thursday Thursday 3:00pm on the Preceding Wednesday1 Monday Friday 3:00pm on the Preceding Thursday1 Monday Saturday 3:00pm on the Preceding Thursday1 Monday Sunday 3:00pm on the Preceding Friday1 Tuesday Note 1: If all work operations are stopped before 12:00pm (noon), contract time will not be assessed on this day for working day contracts. Note 2: Contract time will not be assessed between the stop work by and return to work for working day contracts.

.1 Completion Date Contracts

Begin work on the effective date stated in the Notice to Proceed. Complete all work by the completion date specified in the contract. The completion date will be extended for the following:

or

The new completion date is determined by adding Calendar Days granted in accordance with Subsection 108.07.5; the number of Calendar Days during authorized suspensions (other than the winter period); or the number of Calendar Days the Award was delayed past the posted award date to the specified completion date, with equitable time adjustment for No Work Days. The actual completion date is the date the Project Manager approves the Final Acceptance form in accordance with Subsection 105.17.2. Contract time overruns for assessment of liquidated damages will be computed as the number of Calendar Days elapsing between the contract Completion Date and the actual completion date.

.2 Calendar Day Contracts

Begin work on the effective date stated in the Notice to Proceed. Complete all work within the number of calendar days specified in the contract. Except during authorized suspensions, every day on the calendar is assessed against contract time, including No Work Days. Contract time assessment will cease when the Project Manager approves the Final Acceptance form under Subsection 105.17.2. – PROSECUTION AND PROGRESS 2020 EDITION V5.1 Contract time overruns for assessment of liquidated damages will be computed as the number of calendar days the contract is not complete beyond the contract time specified.

.3 Working Day Contracts

Begin work on the effective date stated in the Notice to Proceed. Complete all work within the number of working days specified in the contract provisions. Contract time assessment will cease when the Project Manager approves the Final Acceptance form in accordance with Subsection 105.17.2. All days except No Work Days are assessed against the contract time, except as follows: contract time will not be assessed on: • Winter Period days that the Contractor does not work. • Winter Period days when the work has no impact to the traveling public, or • O n any Saturdays that the Contractor does not work. Traffic flowing unimpeded on approved detours is considered to have no impact on the traveling public. Contract time will not be assessed for days having inclement weather or the aftermath of inclement weather that prevent the Contractor from working at least six hours in the day. Inclement weather will not be considered when assessing time if the contractor is not actively performing work or is not scheduled to work. Suspension of work is authorized for the Winter Period. Chargeable and non-chargeable working days will be determined daily by the Project Manager. For any week that the Contractor has chargeable days the Project Manager will furnish a weekly report on the following Monday showing the number of working days:

Submit a written protest within the timeframe shown on the weekly report for any alleged discrepancies in the time assessed. Failure to file a protest is conclusive evidence that the time assessed is accepted as correct. Contract time overruns for assessment of liquidated damages will be computed as the number of working days assessed beyond the contract time specified.

.4 Delays

The following delays will be considered for extensions of contract time:

the work may be extended for delays caused by acts of God, acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, or delays not caused by the Contractor’s fault or negligence. Provide project and site-specific documentation to support the delay cause.

Department under Subsection 108.07.6 .

.5 Extensions

Provide a written request detailing the reasons for requesting a time extension. A plea that insufficient contract time was specified is not a valid reason for a time extension. If the Department finds that the work was delayed because of conditions beyond the control of and not the fault of the Contractor, the contract time will be extended in the amount justified. The 2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108 extended time for completion is in full force and effect as though it were the original time for completion. Time extension requests must be made when the next schedule update is required in accordance with Subsection 108.03 or within 10 business days of the alleged delay, whichever is greater. The time extension request must be accompanied with a written narrative. The contract time as awarded is based on the estimated quantities as defined in Subsection

102.05. No decrease in contract time will be made for an underrun in a contract item quantity

The contract time will be modified based on the quantity and difficulty of added work or deleted work and how it impacts the critical activities of the Contractor’s operation as shown on the most current work schedule as required under Subsection

or as justified to the Project

Manager. The time extension will be to the nearest whole day. No additional contract time will be allowed for:

foreseeable and preventable causes within the Contractor’s control. Delays in material deliveries for unusual market condition caused by an industry-wide strike, national disaster, or an area-wide shortage beyond the Contractor’s control will be considered as a basis for granting additional time. Submit written documentation substantiating the reasons for the late delivery or non- availability of materials. The documentation must be from the original supplier and document the dates the material was ordered by the Contractor and the reason for late delivery or non- availability of the material. Include a statement elaborating on the efforts to obtain materials from alternate suppliers.

.6 Delay Compensation

Notify the Project Manager of the request for delay consideration. Keep daily records of all non-salaried labor, material costs, and equipment expenses for all operations affected by the delay. Maintain a daily record of each operation affected by the delay. Identify the location, by stations, of the affected operations. Each Monday, prepare and submit written reports containing the following information:

delayed each operation.

measured.

and – PROSECUTION AND PROGRESS 2020 EDITION V5.1

which costs are compiled. The Project Manager will maintain daily records of the operations by stations. At the end of each week, request a copy of the Project Manager’s daily records, in writing. Compare the two records and provide a written summation of the comparison of the detailed reports within 10 calendar days of receipt of the Project Manager’s daily records. Identify all disagreements between specific records. Failure to review the Project Manager’s records or to report disagreements between the records is considered the Contractor’s acceptance of the Project Manager’s records as accurate. Submit a written report within 30 calendar days of completion of work allegedly delayed. All costs shown in the report submitted must be certified by a certified public accountant (CPA) and include the following:

reason for the delay, including all reports prepared for the Contractor by consultants, if used; and

reimbursement due to the delay. The Project Manager will provide a written decision to the Contractor within 14 calendar days of receiving the submittal. In the case of compensable delays, if it is determined that the Department is responsible for delays to the Contractor’s operations, the Project Manager’s written decision will reflect the nature and extent of any equitable adjustment to the contract as specified in Subsection

109.04.3

.

108.08FAILURE TO COMPLETE ON TIME

If the contract time is exceeded, including approved adjustments, a daily charge will be made against the contract until final acceptance under Subsection 105.17.2. This daily charge, determined from Table 108-4, will be deducted from any money due the Contractor. This deduction is for liquidated damages for failure to complete the work on time. 2020 EDITION V5.1 PROSECUTION AND PROGRESS – 108 TABLE 108-4 SCHEDULE OF LIQUIDATED DAMAGES ORIGINAL CONTRACT AMOUNT DAILY CHARGE From More Than To and Including Working Day or Calendar Day $ 0 $ 150,000 $ 1,244 $ 150,000 $ 500,000 $ 1,599 $ 500,000 $ 1,000,000 $ 1,992 $ 1,000,000 $ 1,500,000 $ 2,198 $ 1,500,000 $ 3,000,000 $ 2,828 $ 3,000,000 $ 4,500,000 $ 3,037 $ 4,500,000 $ 7,000,000 $ 3,303 $ 7,000,000 $ 11,500,000 $ 4,031 $ 11,500,000 — $ 4,273 Permitting the Contractor to continue and complete the work after the specified contract completion time or approved extensions granted does not waive the Department’s rights under the contract. Any disputes regarding the assessment of liquidated damages are part of the normal claims process.

108.09DEFAULT OF CONTRACTOR

The Contractor will be in default if it:

Proceed.

remove and replace rejected materials or unacceptable work.

resume has been given.

insolvency.

requirements, or any state or federally mandated affirmative action requirements.

The Engineer will give written notice to the Contractor and surety of such delay, neglect, or default. Failure to correct the delay, neglect, or default within 10 calendar days after the Engineer’s written notice gives the Department full authority without violating the contract to take over prosecution of the work from the Contractor. The Department may appropriate or use any or – PROSECUTION AND PROGRESS 2020 EDITION V5.1 all materials and equipment at the project site that is suitable and acceptable and enter into an agreement for completing the contract. The Department may use any methods determined necessary to complete the contract. All costs and charges incurred by the Department, including the cost of completing the work under the contract, will be deducted from any monies due or that may become due the Contractor. If the expense exceeds the sum that would have been payable under the contract, then the Contractor and the surety are liable and must pay to the Department the amount of such excess.

108.10TERMINATION FOR PUBLIC CONVENIENCE

.1 General

The Department may terminate the contract in whole or part, whenever:

prosecution of war or in the interest of national defense; or an Executive Order of the President or Governor of the State with respect to the preservation of energy resources.

a court of competent jurisdiction where the issuance of such restraining order is primarily caused by acts or omissions of persons or agencies other than the Contractor.

.2 Payment

Payment will be made for the actual work performed at the contract unit prices for completed items of work when the contract is terminated under Subsection 108.10.1 . Payment will be made for materials delivered or stockpiled, or work performed, that comply with the contract’s specifications or that have been inspected, tested, and accepted for use. Payment will only be made for materials that have been properly stored and maintained until they are delivered to the Department. An equitable adjustment will be made under Subsection 109.05 for partially completed items of work and disposal of materials. Submit the termination costs within 60 calendar days of the date of the notice of Termination for Public Convenience, under Subsection 108.10.1. Provide sufficient detail and make all project records available so the Engineer can determine the basis and amount of the termination costs. If a basis cannot be agreed upon, then an adjustment will be made in such amount as the Engineer may determine to be fair and equitable. Follow the requirements of Subsection 105.16 if the Engineer’s equitable adjustment is disputed.

.3 Responsibility of the Contractor and Surety

Termination of a contract does not relieve the Contractor of any contractual responsibilities for the work nor the Surety or Sureties of the obligations under the contract bond for the work performed.