75 SECTION 108
108.01 Subletting of Contract
A minimum of 30 percent of the work, as represented by the original contract amount, must be performed by the Contractor’s organization. When calculating the percentage of the work to be performed by the Contractor, the Engineer will deduct from the original contract amount the contract price of contract items identified by the contract as specialty items. The Engineer will include the delivered cost of commercially produced materials and manufactured components purchased by the Contractor in the percentage of the work to be performed by the Contractor. Sublet, sell, transfer, assign, or dispose of any portion of the contract only with the Engineer’s prior written approval. To obtain approval, submit a Prime Contractor’s Request to Sublet (SFN 5682) for each proposed subcontractor with a copy of the subcontract and associated lower -tier subcontracts. For a partially subcontracted contract item, explain in detail and show the subcontract amount associated with the partially subcontracted contract item . If a proposed subcontractor is not currently prequalified, certified as a DBE, or registered as a subcontractor with the Department, submit a Subcontractor Registration Request (SFN 52243) with the Prime Contractor’s Request to Sublet. When the contract specifies a DBE Goal, execute a subcontract with all firms approved through the Department’s Good Faith Effort process. If the Department classifies the firm as an oil hauler, supplier, broker, vendor, regular dealer, or manufacturer, no subcontract is required, but the firm must be used to perform the work. Begin subcontracted work only after the Engineer approves the Prime Contractor’s Request to Sublet. A subcontract, transfer of all or a portion of the contract, the Engineer’s approval of the Prime Contractor’s Request to Sublet, or the Department’s prequalification, DBE certification, or registration of a subcontractor:
A.Does not relieve the Contractor of responsibility to carry out the contract. Although the Contractor may subcontract a portion of the work to other parties, the Contractor is responsible for the successful performance and completion of all the work as required by the contract.
B.Does not relieve the Contractor of any obligations or liability under the contract and the contract bond.
C.Is not an endorsement of the subcontract, the subcontractor, or the subcontractor’s ability to perform the work as required by the contract.
D.Does not create a contractual relationship between the Department and the subcontractor.
E.Does not convey to the subcontractor any rights against the Department. 76 108.02 CONSTRUCTION MEETINGS
A.Preconstruction Conference. Before beginning the work, including pit operations specific to the project, and unless waived by the Engineer, coordinate and hold a preconstruction conference with the Engineer at a mutually agreed time and place. Notify subcontractors, utility companies, and other interested parties of the time and place of the preconstruction conference. Submit the following to the Engineer before or at the preconstruction conference:
1.A company safety plan and the name of the safety officer;
2.An EEO / affirmative action plan and the name of the EEO officer;
3.A list of key project personnel and their phone numbers;
4.The initial or baseline schedule in accordance with Section 108.03, "Progress Schedule";
5.A list of proposed subcontractors requested in accordance with “Subletting of Contract” ;
6.A list of material suppliers;
7.A list of pits to be used (owner and legal description);
8.All COAs in accordance with Section 107.05, “Material Source Approval” ;
9.The applicable storm water permits and the SWPPP in accordance with Section 107.02.C, “Storm Water Permits” ;
10.The names of Quality Control Personnel and a Quality Control Plan in accordance with Section 430.04 A, “Contractor Quality Control (QC).”
B.Weekly Planning and Reporting Meeting. The weekly planning and reporting meeting is only required when specified in the plans. Organize a weekly meeting to coordinate efforts between subcontractors, utilities, local authorities, and others. The Engineer will develop a list of parties to be invited to the meeting and will prov ide the list to the Contractor at the Preconstruction Meeting. The Engineer may provide an updated list with additional attendees at any time. Send a knowledgeable representative to conduct the meeting. Prepare minutes for each meeting and make the appropriate distribution of the minutes. Distribute the minutes within 48 hours of the meeting conclusion. Allow the Engineer to review and approve the minutes before distribution. Include in the meeting agenda a discussion of problems encountered since the las t meeting, and information of interest to those invited to the meeting. Provide a written schedule of the next week’s work and a tentative schedule for the following week. 77 108.03 PROGRESS SCHEDULE
A.General. Prepare and submit to the Engineer a schedule in accordance with Section 108.03 B, “Bar Chart Method,” unless the contract requires a Critical Path Method (CPM) schedule. If the contract requires a CPM schedule, prepare and submit to the Engineer a CPM schedule in accordance with Section 108.03 C, “Critical Path Method (CPM).” Prepare and submit progress schedules in accordance with the AGC’s Construction Planning & Scheduling Manual . In case of a conflict between the Construction Planning & Scheduling Manual and the scheduling requirements in the contract, the contract requirements will take precedence. Use the schedule to plan, coordinate, and manage the work, whether the Contractor’s personnel are performing the work or not. Share copies of the complete baseline schedule, update schedules, and revised schedules with all subcontractors, suppliers, and utility companies affected by the work. Float is a shared commodity and is not for th e exclusive use or benefit of any party. It is available to all parties as needed until it is consumed. The Engineer will accept or reject a schedule based on the schedule meeting the requirements of Section 108.03, “Progress Schedule,” and any other contract requirement. The Engineer’s acceptance of a schedule:
1.Does not modify the contract;
2.Does not constitute endorsement or validation by the Engineer of the Contractor’s activity logic, activity durations, or assumptions in creating the schedule;
3.Does not guarantee that the project can be performed or completed as depicted in the schedule; and
4.Does not relieve the Contractor of its obligation or responsibility to submit complete and accurate information. If the Contractor or Engineer discovers an error after the Engineer has accepted a schedule, the Contractor shall correct the error in the next schedule submission. If the Contractor fails to prepare and submit a progress schedule that is acceptable to the Engineer as required by the contract, the Engineer will withhold progressive estimates until the Contractor submits an acceptable schedule.
B.Bar Chart Method.
1.Submission Requirements. Provide the following items with the initial, baseline, update, and revised schedule submissions:
a.Narrative Reports. Narrative reports shall include:
1.An explanation of the overall plan to complete the project;
2.The number of crews and the following for each crew:
a.The number and types of workers;
b.The number and types of equipment;
c.The working days per week, the number of shifts per day, the number of hours per shift, and the holidays to be observed; and
d.The schedule activities being performed;
3.A desc ription of how the schedule accounts for adverse weather days;
4.The quantity of work and estimated production rates for each critical activity;
5.Activities requiring coordination with the Department, other parties, or both;
6.A description of the critical path;
7.A description of all changes in the schedule and narrative report that differ from the last accepted schedule submission; and
8.For a revised schedule, a description of and the reason for all revisions to the schedule.
b.Graphical Depiction of the Bar Chart Schedule. Submit schedules in color as a paper printout or a .pdf file, with minimum dimensions of 11 inches by 17 inches.
c.Transmittal Letter. Submit a transmittal letter to the Department that identifies the schedule being submitted for review and states that the schedule being submitted has been developed in accordance with the contract.
2.Initial Schedule. At least 5 business days before the preconstruction conference, submit an initial schedule. The Contractor may submit the baseline schedule, as specified in “Baseline Schedule,” as both the initial and baseline schedule. For projects with expected durations of less than 90 calendar days, submit the initial schedule as the baseline schedule. Define and sequence activities to accurately describe the project and to comply with all contract requirements, including those related to the scope of work, phasing or staging, sequencing, ac commodations for traffic, and milestones. The initial bar chart schedule is a schedule prepared for the first 90 calendar days of work and shall include the following minimum information: 79 a. The activities needed to perform and complete the work;
b.The planned start and completion dates for each activity, the duration of each activity (stated in working days, and with activities of more than 30 working days in duration broken into two or more activities distinguished by location or some other feature), and the sequencing of all activities;
c.Applicable project milestones, including notice to proceed, the start date of the work, and the completion date associated with the expiration of the contract time;
d.The location of the work;
e.Dates relate d to the procurement of significant materials, equipment, and articles of special manufacture;
f.Dates related to the submission of work drawings, plans, and other data specified for review by the Department;
g.Dates related to required inspections; and
h.Dates related to work by the Department and other parties. Submit a summary schedule for the balance of the project work after the first 90 calendar days; activity durations on the summary schedule may exceed 30 working days. Within 5 business days after the preconstruction conference, the Department will respond in writing accepting the initial schedule, rejecting the initial schedule and identifying the reasons for rejection, or requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the initial schedule or provide the information requested.
3.Baseline Schedule. Within 30 calendar days after the preconstruction conference, prepare the baseline schedule and submit to the Department for review. For projects with expected duration of less than 90 calendar days, the Department will not require the Contractor to submit a baseline schedule. The baseline schedule shall include the requirements set forth by “Initial Schedule,” items “a” through “h”, but for the entire project and all work. Note any differences between the initial schedule and the baseline schedule in the narrative report submitted with the baseline schedule. Within 10 business days after receipt of the baseline schedule, the Department will respond in writing accepting the baseline schedule, rejecting the baseline schedule and identifying the reasons for rejection, or requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the baseline schedule or provide the information requested. 80 4. Update Schedule. After the Department’s written acceptance of the baseline schedule, prepare and submit an update schedule every month with a data date of the first business day of the succeeding month. Report the progress of work performed up to, but not including, the data date. S ubmit the update schedule within 3 business days after the data date. Schedule and conduct weekly progress meetings with the Engineer to discuss schedule progress. Update the schedule to reflect this actual progress. For activities that have started or fi nished since the data date of the last accepted schedule, include the actual start or finish dates. For activities started and still ongoing, show the remaining durations and planned finish dates. Do not make changes between the last accepted schedule and the update schedule, such as adding or deleting activities, increasing or decreasing activity durations, changing the sequence of work, or renaming activities or changing activity descriptions. Within 5 business days after receipt of the update schedule, the Department will respond in writing by accepting the update schedule, by rejecting the update schedule and identifying the reason for rejection, or by requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the update schedule or provide the information requested.
5.Revised Schedule. Prepare and submit a revised schedule if a revision to the schedule is necessary. The Department may request the submission of a revised schedule if any of the following circumstances occur:
a.There is a delay (actual or projected) to the scheduled milestone or project completion dates;
b.There is a difference between the actual sequence or durations of the work and the sequence or durations depicted in the last accepted schedule; or
c.The Department executes a contract revision that adds or deletes work, modifies the planned sequence of work, or modifies the means and methods of its performance. The requirement to prepare a revised schedule is not a directive by the Department to accelerate the work. Prepare and submit the revised sch edule as soon as the need for a revised schedule is necessary, but no more than 5 business days after the Department’s request. Within 5 business days of receipt of the revised schedule, the Department will respond in writing accepting the revised schedul e, rejecting the revised schedule and identifying the reasons for rejection, or requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the revised schedule or provide the information requested. 81 C. Critical Path Method (CPM).
1.General. Use CPM scheduling software that is compatible with Microsoft Project.
2.Submission Requirements. Submit an electronic copy of the CPM schedule in its native format containing the entire schedule. Submit schedules in a format compatible with Microsoft Project. Calculate the CPM schedule using retained logic. Calculate total float based on finish dates. Calculate schedule durations as contiguous. Calculate start-to-st art lags from early dates. Provide the following items with the initial, baseline, update, and revised schedule submissions:
a.Narrative Report. Narrative reports shall include:
1.An explanation of the overall plan to complete the project;
2.The number of crews and the following for each crew:
a.The number and types of workers;
b.The number and types of equipment;
c.The working days per week, the number of shifts per day, the number of hours per shift, and the holidays to be observed; and
d.The schedule activities being performed;
3.A description of how the schedule accounts for adverse weather days;
4.The quantity and estimated production rates for each critical activity;
5.Activities requiring coordination with the Department, other parties, or both;
6.A description of the critical path;
7.A Claim Digger or equivalent report showing all changes in the schedule and a description of all changes in the narrative report that differ from the last accepted schedul e submission; and
8.For a revised schedule, a description of and the reason for all revisions to the schedule.
b.Logic Diagram. Logic diagrams shall be in color and on standard D size sheets (24 inches by 36 inches). 82 c. Tabular Sorts. Tables shall include sorts of activities listed by the following:
1.Early start;
2.Predecessor and successor;
3.Phase or stage by early start;
4.Longest path; and
5.Total float.
d.Graphical Depiction of CPM Schedule. The graphical depiction shall be a bar chart view of all activities grouped by phase and stage, and sorted by early start date.
e.Look-Ahead Schedule. The look -ahead schedule shall be a bar chart view of the 60-calendar -day period starting with the data date, and sorted by early start.
f.Transmittal Letter. Submit a transmittal letter to the Department that identifies the schedule being submitted for review and states that the schedule being submitted has been developed in accordance with the contract.
3.Initial Schedule. At least 5 business days before the preconstruction conference, submit an initial schedule as specified by Section 108.03 B.2, “Initial Schedule”, except that if submitting a baseline schedule as the initial schedule submit the baseline schedule as specified in Section
108.03 C.4, “Baseline Schedule”.
4.Baseline Schedule. Within 30 calendar days after the preconstruction conference, prepare and submit a baseline schedule to the Department for review. Note any differences made between the initial schedule and the baseline schedule in the narrative report submitted with the baseline schedule. Provide a baseline schedule that meets the following requirements:
a.Do not use or allow the following:
1.Negative lags.
2.Start -to-finish relationships.
3.Open ends; only the first activity will have no predecessor and only the last activity will have no successor. 83 (4) Constraints; only constraints associated with phasing, staging, milestones, or project completion dates specified in the contract are allowed, unless the Contractor requests in writing and the Department authorizes in writing.
5.Manually modified dates; only manually modify dates with written authorization from the Department.
b.Includes the following work activities, as applicable:
1.Work to be performed by the Contractor, subcontractors, and suppliers.
2.Work to be performed by the Department and third parties.
3.The project start date, scheduled completion dates, and other milestones required by the contract, start or finish dates for phases, or site access or availability dates.
4.Submittal review and approval activities when applicable, including time for the Department’s approval as specified in the contract.
5.Fabrication, delivery, installation, testing, and similar activities for materials, plants, and equipment.
6.Sampling and testing periods.
7.Settlement or surcharge periods.
8.Cure periods.
9.Utility notification and relocation.
10.Installation, erection and removal, and similar activities related to temporary systems or structures.
11.Punch list, final cleanup, and similar activiti es.
12.Required acceptance testing, inspections, or similar activities.
13.Activities representing acquisition of permits or acquisition of right of way.
c.Provide the following attributes for each activity in the baseline schedule:
1.A unique alphanumeric Activity ID.
2.A unique activity description that includes a verb, object, and location.
3.A duration stated in workdays of no more than 15 workdays, unless the Contractor requests a longer duration and the Department approves in writing.
4.Codes for responsibility, and phasing or staging. 84 Within 10 business days of receipt of the baseline schedule, the Department will respond in writing accepting the baseline schedule, rejecting the baseline schedule and identifying the reason for rejection, or requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the baseline schedule or provide the information requested.
5.Update Schedule. After the Department’s written acceptance of the baseline schedule, prepare and submit an update schedule every 30 calendar days with a data date of the first business day of the succeeding 30 calendar days. Report the progress of work performed up to, but not including, the data date. Submit the update schedule within 3 business days after the data date. Schedule and conduct weekly progress meetings with the Engineer to discuss schedule progress. Update the schedule to reflect this progress. For activities that have started or finished since the data date of the last accepted schedule, include the actual start or finish dates. For activities started and still ongoing, show the remaining duration and planned finish dates. Do not make changes betw een the last accepted schedule and the update schedule, such as adding or deleting activities, increasing or decreasing original durations, adding or deleting relationships, renaming activities, or changing activity descriptions. Within 5 business days after receipt of the update schedule, the Department will respond in writing by accepting the update schedule, by rejecting the update schedule and identifying the reason for rejection, or by requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the schedule update or provide the information requested.
6.Revised Schedule. Prepare and submit a revised schedule if a revision to the schedule is necessary. The Department may request the submission of a revised schedule if any of the following circumstances occur:
a.There is a delay (actual or projected) to the scheduled milestone or contract completion dates;
b.There is a difference between the actual sequence or durations of the work and the sequence or durations depicted in the last accepted schedule; or
c.The Department executes a contract revision that adds or deletes work, modifies the planned sequence of work, or the means and methods of its per formance. The requirement to prepare a revised schedule is not a directive by the Department to accelerate the work. Prepare and submit the revised schedule as soon as the need for a revised schedule is necessary, but no more than 5 business days after the Department’s request. Within 5 business days of receipt of the revised schedule, the Department will respond in writing accepting the revised schedule, rejecting the revised schedule and identifying the 85 reasons for rejection, or requesting more information. Within 5 business days after the date of the Department’s written response, address the reasons for rejection and resubmit the revised schedule or provide the information requested.
D.Measurement and Payment. The Department will not pay the Contractor directly for bar chart schedules; the cost of bar chart schedules is included in the contract unit prices of the contract items. The Department will measure the CPM schedule as a complete unit, and the Department will pay as follows: Pay Item Pay Unit Critical Path Method Schedule Lump Sum The Department will pay the Contractor for the CPM schedule as follows:
1.The Department will include 20 percent of the lump sum price in the progressive estimate following the Department’s acceptance of the baseline schedule.
2.The Department will pay the remaining 80 percent of the lump sum contract unit price in prorated amounts based on the following formula: Amount paid per update schedule submitted = 80% ×Lump Sum contract unit price number of update schedules anticipated during the life of the contract
3.If the Contractor fails to submit an update schedule on time, the Engineer will reduce the prorated amount for that update schedule as shown in Table 108-01. Even if the Engineer reduces the prorated amount by 100 percent, the Contractor must submit the update schedule. Table 108 -01 CPM Schedule Price Reductions Days Late Submitting Update Schedule Percentage Price Reduction to the Prorated Amount1 1 20 2 40 3 60 4 80 5 100 1 The “prorated amount” is equivalent to the amount calculated for each update schedule submission in Payment will be full compensation for the initial, baseline, update, and revised schedules; all required schedule submittals; and all associated progress meetings as necessary to complete the work. 86 108.04 NOTICE TO PROCEED The Department’s mailing or delivery of a copy of the executed contract to the Contractor or authorized agent constitutes the notice to proceed.
108.05 Limitation of Operations
Standard Special Provision (SSP) 5 “Limitation of Operations” has replaced this section.
108.06 Determination of and Extensions To The Contract Time
A.Determination of the Contract Time.
1.General. The contract specifies the contract time. Perform the work within the contract time. The contract time may include phased or interim start or finish dates, or minimum or maximum durations for portions of the work.
2.Working Day Contracts. Working day contracts specify the contract time as the number of working days. The Department will charge working days from the starting date specified in the contract, or from the date the Contractor starts work at the project site, whichever is earlier. If the notice to proceed is delayed for reasons beyond the Contractor’s control and not the Contractor’s fault or responsibility, the Engineer will extend the starting date for working- day time charges to no earlier than the seventh calendar day after the notice to proceed or the date the Contractor starts work at the project site, whichever is earlier. The Engineer will charge a full working day (at least 7 hours) or half working day (more than 3 hours but less than 7 hours) for each calendar day the Contractor can effectively perform work on the critical path as follows:
a.Any day the Contractor could have performed work on critical activities, except Saturday and holidays;
b.Any day the Contractor performs work on critical activities, including Saturdays and holidays; or
c.Any holiday the Contractor receives approval from the Engineer to work, even if the Contractor does not perform work. The Engineer will not charge a working day under the following conditions:
a.During the period from November 15 to April 15, even if the Contractor performs work on the critical activities during this period;
b.Any day the Contractor is only able to perform work on critical activities for 3 hours or less; or
c.Any day the Contractor performs work on non-critical activities but is unable to perform work on critical activities due to conditions beyond the Contractor’s control. 87 The Engineer will provide a weekly statement showing the number of working days charged for the preceding week and the number of working days remaining in the contract time. Review the weekly statement and, within 5 business days after the last day of the week covered by the statement, notify the Engineer that the weekly statement is correct or protest the weekly statement. To protest, submit to the Engineer a written request to revise the working day charges. Failure to submit a request within 5 business days constitutes the Contractor’s agreement with the working day charges in the weekly statement. Once agreed to by the Contractor, whether explicitly or because of the Contractor’s failure to submit a timely protest, the working day charges documented by the weekly statement are final and the Contractor waives entitlement to a time extension or compensation for delays not explicitly identified by the weekly statement.
3.Calendar Day Contracts. Calendar day contracts specify the contract time as the number of calendar days. The completion date is determined by adding the number of calendar days specified in the contract to the starting date specified in the contract or from the date the Contractor starts work at the project site, whichever is earlier. If the notice to proceed is delayed for reasons beyond the Contractor’s control and not the Contractor’s fault or responsibility, the Engineer will extend the starting date for calendar day contracts to no earlier than the seventh calendar day after the notice to proceed or the date the Contractor star ts work at the project site, whichever is earlier.
4.Completion Date Contracts. Completion date contracts specify the contract time as a calendar date, or a calendar date with a guaranteed minimum number of working days. If the completion date contract guarantees a minimum number of working days, the Engineer will charge working days in accordance with Contracts.” If the number of working days charged through the specified completion dat e is less than the guaranteed number, the Engineer will extend the specified completion date to allow for the guaranteed number of working days.
B.Extensions to the Contract Time.
1.General. The Contractor shall immediately notify the Engineer of a del ay in accordance with Section 104.03, “Contractor Requested Contract Revisions,” once the Contractor becomes aware of the delay, not at the conclusion of the delay. The Contractor waives entitlement to a time extension or compensation for delay or costs incurred before the Contractor notified the Engineer of the delay. After notifying the Engineer of the delay, keep daily records of the labor, material, and equipment affected by the delay as specified in Section 109.03 E, “Force Account.” Maintain a daily record of each operation affected by the delay and the station locations of the operations affected. The Department will also maintain daily records of the operations and station locations. Each Monday, compare the previous week’s daily records with the records kept by the Department. 88 Provide written notice to the Engineer within 10 business days of the results of the comparison of the detailed records performed each Monday, and list and describe any disagreements between the records. The Contractor’s failure to meet with the Engineer and review the Department’s records or to list and describe disagreements between the Contractor’s and Department’s records shall establish that the Department’s records are accurate, that the Contractor accepts the records as prepared, and that the Contractor agrees that the Department’s records will be the basis for determining the delay and any compensation that may be due because of the delay. In addition to the daily records, prepare and submit written reports to the Engineer containing the following information each Monday:
a.Number of days behind schedule.
b.A summary of all operations that have been delayed, or will be delayed.
c.In the case of a compensable delay, explain how the D epartment’s act or omission delayed each operation.
d.Itemize and document all added costs being incurred due to the delay. Show all calculations related to the determination of costs. The Contractor’s plea that the contract time was insufficient is not a valid reason for an extension of time. For calendar day and completion date contracts, the Department will not extend the contract time for delays encountered on holidays and during the period from November 15 to April 15. When the ti me as extended by the Department falls on a date that is a holiday, the Engineer will extend the contract time to the next business day. The Department will evaluate the Contractor’s documentation and analysis and determine the time extension due, if any. The Department will not evaluate a request for an extension of the contract time or revise the contract time unless the Contractor notifies the Department as specified in Section 104.03, “Contractor Requested Contract Revisions.” The Engineer will evaluate delays and requests for extensions or revisions to phased or interim start or finish dates, or durations for portions of the project in the same manner as requests for an extension of the contract time for the project as a whole. Comply with the requirements of Section 108.06 B, “Extensions to Contract Time,” when seeking a time extension for phased or interim start or finish dates or durations. In the event that the Department extends the contract time into a period of the year during which the working conditions are less favorable, the Department will consider a further extension of time based on the nature of the work the Contractor scheduled to perform during the les s favorable period. Conversely, if the Department extends the contract time into a period of the year during which the working conditions are more favorable, the Department will consider reducing the contract time extension. If the Department reduces the w ork required to complete the project or relaxes phase or stage requirements, the Department may reduce the contract time. 89 2. Evaluation of Delays and Calculation of Time Extensions. The Engineer will evaluate the Contractor’s request for a time extension based on the Contractor’s compliance with the following requirements:
a.Base all evaluations of delay and all calculations of the appropriate time extensions due on the schedules submitted to and accepted by the Department and current at the time the delay occurred, not schedules created after the delay occurred.
b.The delay is on the critical path when the delay occurred.
c.The delay results in a scheduled milestone, phase or stage, or project completion date that is later than the date required by the contract.
d.If the contract requires a CPM schedule, determine the duration of delays as follows:
1.Use time impact analysis (TIA) to identify and measure critical delays that have not yet occurred. Do not use this method to evaluate delays that have already occurred. In general terms, perform a TIA as follows:
a.Develop a “mini” schedule for the changed work. This schedule is known as a fragnet.
b.Identify the current accepted schedule. and record the scheduled completion date on that schedule.
c.Insert the fragnet into the current schedule by properly linking the fragnet with the existing activities in the current accepted schedule.
d.Recalculate the current schedule with the fragnet inserted and record this scheduled completion date.
e.The difference in the calculated scheduled completion dates between the current schedule and the schedule calculated with a properly inserted and properly composed fragnet is the delay attributable to the changed work. The time extens ion due, if any, will be based on this delay.
2.Use a contemporaneous analysis when evaluating delays that have already occurred. In general terms, perform a contemporaneous analysis as follows:
a.Identify the most recent accepted schedule with a data date before the start of the delay being evaluated.
b.Identify each accepted schedule in effect during the delay and the schedule with a data date that immediately follows the conclusion of the delay.
c.Identify the critical path each day from immediately before the start of the delay to the schedule immediately following the delay.
d.Determine whether the delay falls on the critical path. 90 (e) If the delay does not fall on the critical path, then no project delay occurred and no time extension i s due.
f.If the delay falls on the critical path, then determine the number of days the critical path is delayed. The time extension due, if any, will be based on this delay.
3.Administration of Time Extensions. The Department will administer excusable delays on working day, calendar day, and completion date contracts as follows:
a.For working day contracts, the Department will not charge working days for excusable delays, except for delays caused by added work or extra work. For delays caused by added or extra work, the Department will provide a time extension by adding working days to the contract time.
b.For calendar day and completion date contracts, the Department will provide a time extension by adding calendar days to the c ontract time.
4.Excusable, Non-Compensable Delays. Excusable, non-compensable delays are unforeseeable and unavoidable delays that are not the Contractor’s or the Department’s fault or responsibility. The Contractor is entitled to a contract time extensi on but not entitled to compensation for delay costs associated with an excusable, non-compensable delay. The following are excusable, non- compensable delays:
a.Delays due to floods, tornadoes, earthquakes, or other natural disasters.
b.Extraordinary delays in material deliveries. When the Contractor requests an extension of the contract time for delays due to the late delivery of materials, at the time the delay occurs the Contractor shall provide sufficient documentation to the Department to establish that the delay results from the materials being unavailable because of an unusual market condition. An unusual market condition may be an embargo, government act, nation- wide shortage, industry -wide strike, or natural disaster that arises after the opening of proposals. The Contractor is not entitled to a time extension for delays due to slow delivery when the required material is available from another source.
c.Delays due to civil disturbances or acts of war or terror.
d.Delays due to epidemics or quarantines.
e.Delays due to labor strikes that are beyond the control of the Contractor, subcontractors, or suppliers and are not caused by the improper acts or failures of the Contractor, subcontractor, or supplier.
f.Delays due to utili ty or railroad work when the Contractor has complied with the requirements of Section 105.03 D, “Scheduling,” but the utility or railroad company failed to perform their work within the time agreed to in the utility coord ination meeting. 91 g. Delays due to additional quantities that represent a significant change as defined in Section 104.02 C, “Significant Changes in the Character of Work.”
h.All other delays not the Contractor’ s or Department’s fault or responsibility and not reasonably foreseeable or avoidable by the Contractor.
5.Excusable, Compensable Delays. Excusable, compensable delays are delays that are not the Contractor’s fault or responsibility but are the Department’s fault or responsibility. The Contractor is entitled to a contract time extension and to compensation for delay costs associated with an excusable, compensable delay. The Department will determine compensation for an excusable, compensable delay in acco rdance with Section 109.03 F, “Delay Costs.” The following are excusable, compensable delays:
a.Delays due to an Engineer -ordered suspension as specified in Section 104.02 D, “Suspensions of Work Ordered by the Engineer.”
b.Delays due to differing site conditions as specified in Section 104.02 B, “Differing Site Conditions,” extra work as specified in Section 104.02 E, “Extra Work,” and significant changes in the character of the work as specified in Section 104.02 C, “Significant Changes in the Character of Work,” except significant changes due to increases in quantities.
c.Delays due to the Department’s neglect.
d.Delays due to the unavailability of right-of-way.
e.Delays due to utility or railroad work when the Contractor is required to alter operations due to conflicts with utility facilities not shown in the plans or railroads not shown in the plans.
6.Non-Excusable Delays. Non-excusable delays are delays that are the Contractor’s fault or responsibility or delays that the Contractor could have foreseen or avoided, and weather delays not covered by the events listed in Section 108.06 B.4, “Excusable, Non-Compensable Delays.” Delays due to the Contractor’s, subcontractors’, or suppliers’ insol vency or performance are neither excusable, nor compensable. The Contractor is not entitled to a time extension or compensation for a non -excusable delay.
7.Concurrent Delays. Concurrent delays are separate delays to critical activities occurring at the same time. When a non -excusable delay is concurrent with an excusable delay, the Contractor is not entitled to a time extension 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 a contract time extension but not entitled to compensation for the period the non-compensable delay is concurrent with the compensable delay. 92 108.07 UNSATISFACTORY PROGRESS AND FAILURE TO COMPLETE WITHIN THE CONTRACT TIME
A.Unsatisfactory Progress. If the Contractor fails to satisfactorily progress the work as reflected in the current accepted progress schedule, the Engineer may arrange a meeting between the Contractor, the surety, and other Depar tment representatives to discuss the unsatisfactory progress. The parties will mutually develop a plan for the Contractor to regain satisfactory progress.
B.Failure to Complete within the Contract Time.
1.General. For each calendar day that the work remains incomplete after the expiration of the contract time, the Department will deduct the sum specified in Table 108-02, “Daily Charges for Liquidated Damages” from any money due the Contractor. If the amount of the deduction exceeds the money due, then the Contractor shall immediately pay the Department the difference. The sum specified in Table 108-02 is not a penalty but a liquidated damage due the Department because of inconvenience to the public, added cost of engineering and supervision, and other additional expenditures of the public’s funds due to the Contractor’s failure to complete the work within the contract time. Permission for the Contractor or surety to continue and finish work after the contract time and approved time extensions have elapsed shall not waive the Department’s rights under the contract. The Department will not assess liquidated damages during a period when the project is in an authorized state of suspension. The Department will assess l iquidated damages in accordance with Table 108-02. Table 108 -02 Daily Charges for Liquidated Damages Original Contract Amount ($) Daily Charge ($) From more than To and including Calendar Day Working Day 0 100,000 350 400 100,000 250,000 700 1,000 250,000 500,000 900 1,400 500,000 1,000,000 1,300 1,800 1,000,000 3,000,000 1,600 2,300 3,000,000 5,000,000 2,300 3,000 5,000,000 8,000,000 2,800 3,600 8,000,000 12,000,000 3,300 4,100 12,000,000 18,000,000 4,000 4,600 18,000,000 Up 5,000 5,600 For calendar day and completion date contracts, the Department will use the daily charge for calendar days; for working day contracts, the daily charge for working days.
2.Substantially Complete. If the Department determines the work is substantially complete and is in a condition for safe and convenient use by the traveling public, the Department may terminate the assessment of all or a portion of the liquidated damages that accrue. The Department will consider the work substantially complete when the Contractor has installed all necessary signing, striping, guardrail, and other safety appurtenances, and, if the contract requires, when the project is opened to the traveling public. If the contract does not require the project opened to the traveling public, the Department will consider the work substantially complete when it is ready for the subsequent project. The Engineer’s suspension of time charges is not a contractual right and its application will be contingent upon the Contractor’s diligence in completing the remaining items of work.
3.Interim Completion. If the project has an iterim completeion date and the included work items are not completed by the interim completion date, the Department will asses liquidated damages in accordance with Table 108-02.
108.08 Termination of The Contract for Default
If the Department finds that the Contractor is responsible for any of the following, the Engineer may issue a written notice of default to the Contractor and surety:
A.Failing to begin the work under the contract within the time specified;
B.Failing to perform the work with sufficient resources to ensure the prompt completion of the work;
C.Failing to perform the work satisfactorily;
D.Neglecting or refusing to rem ove or replace rejected materials or unacceptable work;
E.Discontinuing the prosecution of the work;
F.Failing to resume work, which has been discontinued, within a reasonable time after the Engineer gives the Contractor written notice to do so;
G.Becoming insolvent, being declared bankrupt, or committing any act of bankruptcy or insolvency;
H.Allowing any final judgment to be unsatisfied for 10 business days;
I.Making an assignment for the benefit of creditors without the Engineer’s approval;
J.Failing to maintain active insurance policies in accordance with Section 107.14, “Public Liability and Property Damage Insurance”; or 94 K. Failing to perform the work in an acceptable manner due to any other c ause. If the Contractor or surety does not address the notice of default within 10 calendar days of such notice, the Engineer will provide a written notice of termination for default to the Contractor and surety, and the Department will have the full power and authority, without violating the contract, to terminate the contract and take the prosecution of the work away from the Contractor. The Department may appropriate or use any or all materials and equipment at the project site and may enter an agreemen t with another party to complete the contract according to its terms and provisions. The Department may use other methods required to perform the remainder of the work or complete the project. If the Department solicits bids for the remainder of the work o r completion of the project, the Contractor is not eligible to submit a proposal. The Department will deduct all costs incurred by the Department, together with the cost of completing the work under contract, from any monies due or that may become due the Contractor. If the Department’s costs, including the cost of completing the work under the contract, exceed the amount that would have been payable under the contract, the Contractor and the surety shall be liable and shall pay the Department the amount of such excess. If the Department issues a notice of termination for default and later determines the Contractor was not in default, the termination for default will become a termination for convenience in accordance with Section 108.09, “Termination of the Contract for Convenience.”
108.09 Termination of The Contract for Convenience
After determining that, for reasons beyond either the Department’s or the Contractor’s control, the Contractor is prevented from proceeding with or completing the work as originally contracted for, and that contract termination would be in the public interest, the Department may terminate the contract or any portion of the contract by written order of the Engineer. Reasons for termi nation include the following:
A.Executive Orders of the President relating to war or national defense;
B.A national emergency that creates a serious shortage of materials, labor, equipment, or funds that will continue for an unreasonable length of time;
C.Orders from duly -constituted authorities relating to energy conservation;
D.Restraining orders or injunctions obtained by third-party citizen action, or where the issuance of such order or injunction is caused by acts or omissions of persons or agencies other than the Contractor;
E.Changes in funding availability at either the State or federal level;
F.Changes in Department priorities from any cause;
G.An act of God; or
H.Any other reason deemed to be in the best interest of the public. The rights accorded the Department and the Contractor by this section shall not supersede or include other specific rights and responsibilities of each contained in the contract. 95 After receiving the notice of termination for convenience, submit to the Engineer a request for compensation in accordance with Section 104.02, “Contract Revisions,” except, submit the request within 60 calendar days of the effective date of termination for convenience. The D epartment will pay the Contractor for costs that the Contractor has incurred before or as a result of the termination for convenience in accordance with Section 109.03, “Compensation for Contract Revisions.” In addition, the Department will pay the Contractor for mobilization efforts, guaranteed payments for private land usage as part of the original contract, and any other costs resulting from the termination for convenience, subject to the limitations of Section 109.03 G, “Non -Allowable Charges.” The Department may purchase materials the Contractor has not incorporated into the project at the actual delivered cost to a prescribed location; otherwise, the Contractor s hall dispose of the materials in a manner approved by the Engineer. The Department will only purchase material that the Engineer has inspected, tested, and accepted and that the Contactor has properly stored and maintained. The Department’s termination of the contract or a portion thereof shall not relieve the Contractor of any contractual responsibilities for the work completed, or relieve the surety of its obligation for and concerning any just claim arising out of the work performed in accordance with Section 104.06, “Department-Initiated Claims.” Section 109 96 SECTION 109 MEASUREMENT AND PAYMENT
109.01 Measurement of Quantities
A.General. The bid item list specifies the unit of measure for each contract item. The Engineer will measure accepted quantities of work for each contract item in accordance with the “Method of Measurement” subsection in the relevant specifications and Section 109.01, “Measurement of Quantities.” In the case of a conflict, the method of measurement in the relevant specifications supersedes the method of measurement in Section 109.01, “Measurement of Quantities.” Unless the contract spec ifies payment by plan quantity, the Engineer will measure the actual quantity of accepted work for each contract item.
B.Area. For area calculations of contract items, the Engineer will measure the longitudinal length horizontally and use the transverse dimension shown on the plans. The Engineer will not make deductions for individual fixtures occupying an area equal to or less than 9 SF.
C.Structures. For structures, the Engineer will measure structures using the plan quantity based on the dimensions s hown on the plans.
D.Linear Units. For contract items specified for measurement by linear unit, the Engineer will take measurements parallel to the base or foundation.
E.Volume. For volume calculations of contract items, the Engineer will use the avera ge end-area method, the prismoidal method, truck/vehicle method, or other acceptable methods.
F.Truck/Vehicle Volume. For materials specified for measurement by volume, the Engineer will measure in vehicles at the point of delivery. Use vehicles that all ow easy and accurate measurement of the contents. Load all vehicles to their water level capacity if possible. The Engineer may direct the Contractor to level the loads at the point of delivery to determine the actual volume of the load. Do not exceed the legal load limits for gross weight.
G.Timber. The Engineer will measure timber by the thousand board feet measure, based on nominal widths and thicknesses and the longest dimension of each piece.
H.Lump Sum. When a contract item has a “lump sum” unit, the contract unit price is full compensation to the Contractor for that contract item.
I.Standard Manufactured Materials. The Engineer will accept nominal dimensions for standard manufactured materials unless the contract requires otherwise. The Engineer will accept industry established manufacturing tolerances, unless the contract requires otherwise.
Source: North Dakota Standard Specifications for Road and Bridge Construction, 2022 Edition. Pages 110–130 of 550.