37 SECTION 105
105.01 General
The Contractor is responsible for the successful performance of the work as required by the contract, whether the Contractor’s personnel are performing the work or not. The Engineer’s decisions will be final on all questions regarding the quality and acceptability of materials furnished, work performed, rate of work progress, interpretation of the contract, and the acceptable fulfillment of the contract.
105.02 Contractor Requirements
Keep one complete copy of the contract at the project during the performance of the work. Give the work the constant attention necessary to facili tate progress. Cooperate fully with the Engineer. Submit all project submittals and correspondence to the Engineer. If the contract allows the Contractor to correspond directly with other Department representatives, the Contractor shall submit a copy of a ll such submittals and correspondence to the Engineer at the same time the correspondence is submitted to the other Department representative. Before starting the work, designate a qualified superintendent and notify the Engineer of the superintendent’s c ontact information in writing. If replacing the superintendent, immediately notify the Engineer in writing. To be considered qualified the superintendent must be:
A.A responsible employee of the Contractor;
B.Capable of reading and understanding the contract;
C.Present at the project site while work is underway, including work by subcontractors, unless otherwise approved by the Engineer;
D.Authorized to:
1.Represent and act for the Contractor;
2.Attend project meetings, when required by the contract;
3.Execute orders and directions of the Engineer; and
4.Ensure subcontractors are performing work in accordance with the contract requirements.
105.03 Cooperation With Utility Owners
A.General. The vertical and horizontal utility locations shown in the plans are approximate. Plan locations should not be interpreted as exact for bidding or construction purposes . 38 Utility facilities shown on the plans, if any, are for reference purposes only and may not constitute an exhaustive representation of all utility facilities within the project. Notify the North Dakota One Call System (811) before starting the work, so they may locate and mark all utility facilities within the project. Receive utility locates for Department-owned, publicly -owned, and privately -owned utility facilities, whether on or off the One Call System. Comply with Chapter 49-23 of the NDCC in determining the location of underground utilities.
B.Utilities Identified in Plans. Notify all uti lity owners of the anticipated project schedule within two weeks of receiving notice to proceed. Coordinate adjustments and relocations with affected utility owners. The Contractor, the Engineer, and the utility owners shall agree to a schedule of the work and the adjustments and relocations before beginning the work. Cooperate with utility owners in relocating and adjusting utility facilities to minimize interruption to service and duplication of work by utility owners. The Department will provide utilit y conflict plans, if available. Utility conflict plans are not part of the contract and are for information purposes only.
C.Utilities Encountered During Work.
1.General. Neither of the cases discussed in this subsection relieve the Contractor of liability that may arise under provisions of the NDCC.
2.Unidentified Encountered Utilities. The Department will bear costs associated with revisions to the work as specified in Section 104.02 B, “Differing Site Conditions” only if the Engineer determines that both of the following conditions exist: - the utility’s effect on the work was not identified in the contract; and - the utility is in a location that affects the prosecution of the work to construct the project as designed.
3.Utility Conflicts Created Due to Actions Performed by the Contractor . If utility coordination is required due to actions performed by the Contractor for the Contractor’s convenience; the Contractor must account for and protect the affected facilities. Before performing these actions, the Contractor must coordinate with the utility owner. The Department will not make additional payments to the Contractor nor the utility owner for utility relocation work created in this manner and will not provide additional time to the Contractor for completing the work. If utility companies incur costs, the Department will not participate in those costs and will not make payment to the Contractor for those costs.
D.Scheduling.
1.General. In order to minimize interference with traffic operations, the Contractor, Engineer, and utility owner shall agree to a detailed schedule before starting work. 39 2. Utility Coordination Meeting. If the contract requires a utility coordination meeti ng, arrange the meeting with the utility owners and the Engineer to occur no later than two weeks after the notice to proceed. At the meeting, provide an agenda and a tentative construction schedule for planning utility relocations and adjustments; after t he meeting, publish minutes and distribute a copy to all meeting attendees.
E.Fire Hydrants. Before starting work that affects a fire hydrant, coordinate with the local fire authority to determine if provisions need to be in place before starting the wor k. If provisions are necessary, obtain the approval of the local fire authority before beginning the work affecting the fire hydrant.
F.Damage and Interruptions. If the Contractor causes damage to utility facilities, the Contractor is responsible for the costs of restoring or repairing the damaged utility facility to a condition equal to or better than the condition existing before the damage occurred. Immediately notify the utility owner of the damage or, if the owner is unknown, the O ne Call System. Do not conceal, attempt to conceal, or make repairs to the utility facilities until approved by the utility owner. If this damage causes interruption to utility service, continuously coordinate with the utility owner until the service is fully restored. The Department will not pay the Contractor for the costs to restore or repair damaged utility facilities and will consider any delays resulting from this damage to be non-excusable in accordance with Section 108.06, “Determination of and Extensions to the Contract Time.”
105.04 Cooperation Between Contractors
The Department reserves the right to contract for and perform other work on or near the site of work. Coordinate the work and cooperate with the contractor for the other work. The Contractor is responsible for all liability, financial or otherwise, in connection with the contract, and shall save the Department harmless from damages or claims resulting from inconvenience, delay, or loss due to the Contractor’s failure to coordinate the work or cooperate with the contractor for the other work. If a conflict occurs between the Contractor and the contractor for the other work, the Engineer will provide direction.
105.05 Coordination of The Contract Documents
Each contract document is an essential part of the contract; a requirement occurring in one is as binding as though occurring in all. The Department intends the contract documents to be complementary and to describe and provide for a com plete work. In case of discrepancy between the contract documents, use the following order of precedence (each contract document is in descending order of precedence, for example, addenda take precedence over all the other contract documents):
A.Addenda,
B.Special provisions (for the purpose of this list, any other provisions in the request for proposals that are not part of the other contract documents in this list are considered special provisions),
C.Project plans,
D.Supplemental specifications,
E.Standard drawings,
F.Standard specifications. For dimensions shown on the standard drawings and project plans, calculated dimensions take precedence over scaled dimensions. If a discrepancy, conflict, error, omission, or ambiguity exists in the contract documents, immediately notify the Engineer. Do not take advantage of a discrepancy, conflict, error, omission, or ambiguity. The Engineer will make corrections and interpretations necessary to fulfill the intent of the contract.
105.06 Character of Workers, Methods, and Equipment
A.Resources. Provide sufficient resources to complete the work as required by the contract and within the contract time.
B.Removal of Personnel. If any person employed on the project, whether a Contractor employee or not, is intemperate, prejudiced, abusive, or disorderly, the Engineer may direct the Contractor in writing to discharge the person from the work. Re-employ this person on the project only with the Engineer’s approval. If the Contractor fails to remove a person as directed by the Engineer or to provide sufficient personnel for the proper prosecution of the work, the Engineer may suspend the work by written notice until the Contractor complies.
C.Alternative Methods and Equipment. If the contract specifies the methods and equipment to perform the work, alternative methods and equipment may only be used with the approval of the Engineer. Submit a written request with a full description of the alternative methods and equipment being proposed and an explanation of reasons for making the change. If the Engineer approves of the alternative method or equipment, produce work in conformity with the contract requirements. The Engineer’s approval does not change the basis of payment for the contract items involved or the contract time. If the Engineer determines the work produced does not meet the contract requirements, discontinue alternative method or equipment and complete the remaining work with the specified methods and equipment. Repair or remove and replace the deficient work to the specified quality.
D.Welders.
1.General. Before performing the work, all welders must obtain the applicable AWS qualification and the certification from the Department. 41 2. Qualifications. Welders performing work as specified in Section 616, “Structural Steel,” and Section 622, “Piling,” must meet the qualification requirements of AASHTO/AWS D1.5, “Bridge Welding Code.” All other welders performing work on steel must meet the qualification requirements of AWS D1.1, “Structural Welding Code – Steel.” Welders performing work on aluminum m ust meet the qualification requirements of AWS D1.2, “Structural Welding Code – Aluminum.”
3.Certifications. To obtain Department certification, submit the applicable qualifications and test results to the Materials and Research Engineer at least 2 weeks before the welder starts work on the project. The test results must meet all of the following conditions:
a.Witnessed and signed by an AWS Certified Welder Inspector (CWI);
b.Conform to the example form for Welder, Welding Operator, or Tack Welder Qualification Test Record provided in AWS D1.1; and
c.Include the welder’s name, welder’s employee ID number from payroll, date tested, CWI name, testing firm name, and the test results. If the qualifications and test results are acceptable, the Materials and Research Engineer will certify the welder. The Department certification is active for 1 year and is eligible for up to three 1-year extensions. To obtain an extension, submit a written request to the Materials and Research Engineer with a si gned statement that the welder has been actively engaged in performing the required welds within the previous six months. The Department may require a requalification test at any time.
105.07 Conformance With The Contract Requirements
A.Performance of Work. Perform the work in conformance with the contract requirements. Perform the work to produce a product that is uniform in character and to conform to the required target value or tolerance range. This tolerance range is to accommodate occasional, unavoidable, and minor variations from the median zone. When the contract contains the word or phrase “uniform,” “uniformly,” “in a uniform manner,” or an equivalent to describe a required result or procedure and no test is specified, the degr ee of uniformity will be that which is obtained for quality work meeting industry standards. If a portion of the work fails to meet the contract requirements but is adequate to serve the design purpose, the Engineer may accept work in place and process a contract price adjustment for that portion of the work. If the Engineer accepts the work: - the Engineer will apply the contract price adjustments included in the contract; or - if no contract price adjustments are included in the contract, the Engineer will determine a contract price adjustment factor and issue a contract revision documenting the basis of acceptance and the revision to the payment. If the Engineer determines that a portion of the work does not conform with the contract and does not produce work that serves the design purpose, remove and replace or repair the work at no expense to the Department.
B.Removing Unacceptable or Unauthorized Work. Remove and replace unacceptable work before final acceptance. The Contractor will not receive compensation for work performed contrary to the Engineer’s instructions, work beyond the construction limits, and work performed without the Engineer’s permission. The Engineer may order this work removed, restored, or replaced at no additional cost to the Department. If the Contractor fails to remove, restore, or replace this work as ordered by the Engineer, the Engineer may have these actions performed by others and deduct the cost from monies due or to become due to the Contractor.
105.08 Wo Rk Drawings
A.General.
1.Coordination of Plans and Work Drawings. The plans show the location and details of structures, lines, grades, and typical cross sections of the roadway. The contract may require the Contractor to supplement the plans with work drawings to reflect how the Contractor will perform the work. If the contract requires work drawings, submit the work drawings to the Engineer for review and comments. The Contractor shall only start the work represented on the work drawing once the Engineer’s review is complete and the Contractor has addressed any comments. Submission of work drawings by the Contractor and review of work drawings by the Engineer do not constitute the Department’s approval of or acceptance of the work represented on the work drawings and does not relieve the Contractor of any of the following:
a.Successful completion of the work;
b.Errors, omissions, or deviations from the contract requirements;
c.Accuracy of dimensions and details;
d.Agreement and conformity with the contract;
e.Proper and safe design done by the Contractor;
f.Proper and safe construction of the work; and
g.Any other contract requirements. 43 Do not change any requirements as shown in the contract documents without the Engineer’ s written authorization. Provide work drawings on a maximum size of 11 inch × 17 inch sheets that clearly and legibly displays all details.
2.Cover Sheet Requirements. With each submittal of work drawings, provide a cover letter that includes the following:
a.The Department’s project number;
b.The Project Control Number (PCN);
c.The structure number from the plans, if the work drawing represents work related to a structure;
d.The Contractor’s name;
e.The subcontractor name, if applicable;
f.Verification that the work drawings have been reviewed and approved by the Contractor performing the work;
g.A reference to the “Spec No.,” “Code No.,” and “Description” of the contract item or items represented on the work drawing;
h.An itemized list of any approved deviations from the contract documents; and
i.Any other information as required by the Engineer.
3.Additional Section 600 Work Drawing Submittal Requirements. Provide work drawings on 11 inch × 17 inch sheets generated by a CADD system for the following: • Section 600; • Expansion joints; and • Bridge bearings . Use the minimum text sizes shown in Table 105 -01. Table 105 -01 Dimensions and Notes 0.08 Inches Detail Subtitles 0.09 Inches Detail Titles 0.10 Inches Number each sheet consecutively and include the following on the lower right hand corner of each sheet:
a.The Department’s project number;
b.The structure number, if applicable; 44 c. The title of sheet;
d.The fabricator’s name;
e.A brief description of the detail shown on sheet; and
f.An approval stamp that includes:
1.The signature of the person approving the work drawing;
2.The title of the person approving the work drawing; and
3.The date of the approval. Excluding the approval stamp requirements, no handwritten information will be allowed on the work drawings.
B.Work Drawing Submittal Requirements. Submit work drawings by either of the following methods:
1.Paper Submittal. Submit a cover letter and two copies of the work drawings to the Engineer.
2.Electronic Submittal. To submit the work drawings electronically to the Engineer, post a cover letter and one electronic copy of the work drawing to the Department’s managed file transfer (MFT) website. Follow the requirements of NDAC Title 28 for all submittals. Contact the Engineer to receive instructions describing how to upload files to the MFT website.
C.Engineer’s Response to Work Drawing. Allow 21 days for the Engineer to review the work drawing. The Engineer will respond in one of the following ways : - No Exceptions Noted; - Returned for Correction; - Not Required for Review; or - Not Acceptable. If the work drawing is returned stating “Returned for Correction” or “Not Acceptable”, make necessary revisions and resubmit the work drawing as specified in Drawings” . After the Department has reviewed the work drawings, the Department will return the reviewed work drawing submittal to the Contractor as follows: - If a paper submittal, the Engineer will return the reviewed drawings to the Contractor. - If an electronic submittal, the Department will post reviewed work drawings on the MFT site and will send an email notification to the Contractor that the reviewed work drawings are available on the MFT site. Retrieve the reviewed work drawings from the MFT site within 30 calendar days. The Department will delete files from the MFT site after 30 calendar days. Include the cost of drafting and submitting work drawings in the contract unit price for the relevant contract items. 45 105.09 AUTHORITY OF THE ENGINEER The Engineer is the authority on the engineering details of the project and the administrative responsibilities for the satisfactory completion of the project. The Engineer has authority to reject defective materi al or work that does not meet the contract requirements. The Engineer has the authority to suspend the work for the following reasons:
A.The Contractor fails to carry out contract requirements;
B.The Contractor fails to carry out orders from the Engineer;
C.During periods of unsuitable weather;
D.For conditions considered unsuitable for performance of the work;
E.For other conditions or reasons in the public interest; or
F.For other reasons the Department and Contractor mutually agree on.
105.10 Construction Staking
The Engineer will provide and set construction stakes and marks that establish lines, slopes, grades, and other engineering details, and provide the Contractor with all necessary information relating to them. The Department is responsible for the accuracy of construction stakes and marks established by the Engineer. Notify the Engineer at least 14 calendar days before starting the work and provide a description of the staking necessary to start the work. After the work has begun, notify the Engineer at least 48 hours of the need for staking, excluding Saturdays and holidays, and provide a description of the needed staking. The Department is not responsible for delays in setting stakes if the Engineer does not receive the required notice. Before starting the work, examine all stakes, measurements, and marks to determine their intent. Protect and preserve all stakes and marks. If the Contractor destroys or disturbs stakes or marks, the Department will repair or replace the stakes and marks and will deduct the cost of repair or replacement from monies due or to become due the Contractor.
105.11 Inspection of Work
All material, the production of material, and each part or detail of the work is subject to inspection. Provide the Engineer access to all parts of the work and provide information and assistance as required by the contract to allow the Engineer to perform a complete and detailed inspection. Remove or uncover portions of the work as requested by the Engineer. After examination, restore the work to the standard required by the contract. If the work is acceptable, the Department will pay for the costs of uncovering, removing, and restoring the work in accordance with Section 104.02, “Contract Revisions.” If the work is unacceptable, uncover, remove, and restore the unacceptable work. The Department will not pay the Contractor for the costs to uncover, remove, and restore unacceptable work. Any work performed or materials used without inspection by the Engineer may be ordered removed or uncovered and replaced at the Contractor’s expense, unless the Engineer failed to inspect after having been given notice that the work was to be performed. When any unit of government, political subdivision, utility owner, or railroad company is to pay a portion of the cost of the work covered by this contract, its respective representatives also have the right to inspect the work. This act of inspecting does not make the unit of government or political subdivision, the utility owner, or the railroad company a party to the contract, and shall not interfere with the rights of either party to the contract.
105.12 Maintenance During Construction
Maintain the project site in a satisfactory condition until the project is accepted. If the contract requires the placement of material on or the use of an existing feature, such as subgrade, base course, pavement, or structure, maintain the existing feature. If the Contractor fails to maintain the project site properly, the Engineer will notify the Contractor and the Contractor shall remedy the improper maintenance within 24 hours of receipt of the notice. If the Contractor fails to remedy the improper maintenance within 24 hours, the Department may proceed to maintain the project site, and will deduct the costs of the maintenance work from monies due or to become due the Contractor. The cost of maintaining the work and project site during construction until acceptance is included in the contract unit price s of the contract items.
105.13 Protection of The Work
Protect project work from damage until the Engineer gives partial acceptance or project acceptance to the work as defined in Section 105.15, “Acceptance.” Until acceptance, rebuild, repair, or restore damage to the work at no cost to the Department, except as noted in this section. If the damage is to items that will be permanently incorporated in to the work and are not substantially complete and is a result of acts of the public enemy, acts of government entities, or acts of God, the Contractor shall rebuild, repair or restore the work and the Department will pay the Contractor for the work in accordance with Section 109.03, “Compensation for Contract Revisions.” If the damage is to work that is substantially complete and is caused by public traffic, identify the party that is responsible for the damage, pursue all reasonable means to recover the costs of the damage, and repair the damage to the work. When the Contractor cannot recover the costs by reasonable means, the Department will pay the Contractor for the unrecovered costs as specified in Section 109.03, “Compensation for Contract Revisions.” If damage occurs after acceptance and before the Contractor signs the final payment statement, the Engineer may direct the Contractor to rebuild, repair, or restore the damaged work and the Department will pay the Contrac tor for the costs to rebuild, repair, or restore the damaged work in accordance with Section 104.02, “Contract Revisions.” 47 105.14 OPENING TO TRAFFIC If the contract provides for detours or road closures and the Contractor closed the road to traffic, the Engineer may order the Contractor to open certain sections of the road to traffic. Opening these sections does not constitute acceptance of the work or a waiver of any contract provisions. On those sections opened to traffic, the Department will pay the Contractor for the costs of maintaining the roadway for traffic in accordance with Section 104.02, “Contract Revisions.” If the Contractor is late in completing porti ons of the work according to the contract or progress schedule, the Engineer will notify the Contractor of the time period for completing these features. The Engineer may order all or a portion of the project opened to traffic if the Contractor fails to complete or make a reasonable effort to complete the late work. The Contractor remains liable or responsible for maintaining the work and shall conduct the remaining construction operations with minimal interference to traffic at no cost to the Department.
105.15 Acceptance
A.General. After completion of the work or a segment of the work, notify the Engineer in writing to request final inspection for partial or project acceptance. Before requesting final inspection, remove all garbage, excess materials, temporary work, and equipment from the project or segment. The Engineer will respond to the Contractor’s request within 5 business days to coordinate the final inspection of the work. The Engineer will inspect the work to determine if the Contr actor has completed the work as required by the contract. If the inspection discloses any unsatisfactory work, the Engineer will provide the Contractor with written instructions for correcting the work. Upon correction of the work, request another inspection by the Engineer.
B.Partial Acceptance. Partial acceptance occurs when a segment of the work such as a structure, an interchange, or a section of road is complete and accepted by the Engineer. The Engineer may require the completion of additional item s of work related to the segment before issuing partial acceptance on a segment of the work.
C.Project Acceptance. Project acceptance occurs when the project is complete and accepted by the Engineer. If the Engineer determines the work is complete, the inspection will constitute the final inspection and the Engineer will notify the Contractor of project acceptance. Acceptance does not void or alter any contract terms. Issuance of an acceptance letter constitutes the Engineer’s satisfaction with the phys ical construction work associated with the contract. Upon project acceptance, the Department will begin a process to reconcile the project records. This process may require the Contractor to provide additional documentation or to assist with reconciling the project records. Final payment, as specified on Section 109.06, “Final Progressive Estimate and Payment” will not be made until the resolution of the records reconciliation process. 48 105.16 NO WAIVER OF LEGAL RIGHTS Project acceptance does not prevent the Department from correcting any measurement, estimate, or certificate made before or after completion of the work. The Department may recover overpayments from the Contractor, surety, or both. A waiver on the part of the Department of any breach of any part of the contract is not a waiver of any other breach. Without prejudice to the contract terms, maintain liability for latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards the Department’s rights under any warranty or guaranty.
105.17 Right of Way
The Department will furnish right of way before the work starts, except as indicated in the contract. Before damaging or disturbing land monuments or property markers, allow the Engineer to witness or otherwise reference their location. Section 106 49 SECTION 106 CONTROL OF MATERIAL
106.01 General Methods of Materials Acceptance
A.General. Only use materials that meet the contract requirements. Unless otherwise specified, use new material for the work. Before delivery of the materials, notify the Engineer of the proposed source of material. The contract may require either or both of the following as the basis for approval and acceptance of material:
1.Sampling, testing, and inspection.
2.A Certificate of Compliance. If the value of the material is less than $5,000 and the material is not directly involved with the safety of a structure or roadway, the Engineer may waive the certificate requirement, or accept the material without sampling, testing, and inspecting.
B.Samples, Tests, and Inspection. The Engineer will sample, test, and inspect materials in accordance with relevant contract requirements and will provide copies of all test results to the Contractor upon request. The Department will not pay for materials found to be unacceptable. Remove unacceptable materials at no cost to the Department. The Engineer may sample, test, and inspect materials at any time before project acceptance, and wi ll accept or reject materials based on inspections or test results. If the contract requires the Contractor to perform sampling and testing, the Contractor shall provide the Engineer with copies of all sampling and testing results.
C.Certificate of Compliance.
1.General. A Certificate of Compliance (CoC) states that the materials represented by the CoC comply with the contract requirements. All materials manufactured off-site require either a Manufacturer or C ontractor CoC . Materials listed in Table 106-01 require a Manufacturer CoC. All other materials require a Contractor CoC. Submit a CoC electronically before incorporating the material into the work. Some materials require the submission of additional information as par t of the CoC. When this is required, the contract documents will state the additional requirements. The Department will not include quantities of material represented by a CoC on a progressive estimate until the Contractor has fully met the CoC requirements.
Source: North Dakota Standard Specifications for Road and Bridge Construction, 2022 Edition. Pages 72–83 of 550.