- 73 - SECTION 108 -- PROSECUTION AND PROGRESS
108.01 Subletting or Assigning of Contract
1.a. (1) The Contractor will not be allowed to sublet, assign, sell, transfer, or otherwise dispose of any port ion of the contract or any right, title, or interest therein; or to either lega lly or equitably assign any of the money payable under the contract or the claims without the prior written consent of the Engineer.
2.The Contractor shall perform with its own organization contract work amounting to not less than 30% (or a greater percentage if specified elsewhere in the contract) of the total original contract price.
3.Any items designated in th e contract as "specialty items" may be performed by subcontract.
4.The cost of any subcontracted "specialty items" may be deducted from the total contract cost before computing the percentage of work required to be performed by the Contractor.
5.Subcontracts, or transfer of contract, will not release the Contractor of any liability under the contract and bonds.
b.Certain items of work ma y be performed without a subcontract. A list of items not requiring a subcontr act is available from the Engineer.
2.The performance of any work by a Subcontractor before the date of written consent by the Department s hall subject both the Contractor and Subcontractor to the imposition of appr opriate sanctions by the Department.
3.a. The Contractor's request to sublet work shall be made electronically to the NDOT Construction Engineer using project management software identified by the Department. A signed subcontract agreement shall be on file in the Contractor's o ffice when the request is made. The subcontract agreement must provide that the subcontracted work will be completed according to the terms of t he contract. The required and special provisions contained in the proposal shall be included in any subcontract.
b.On Federal-aid projects, a digital copy in an acceptable format (such as *.pdf format) of the signed subcontract agreement, at any tier, shall be included with the subcontracting reques t. For projects with DBE goals, DBE subcontracts, at any tier, must in clude executed subcontracts, written agreements, or lease agreements used to meet DBE goals and show labor cost, material prices, overhead and profit.
4.Second tier subcontracts will be allowed. a. All requests for second tier subcontracting shall be submitted to, and approved by the Contractor before they are forwarded to the NDOT Construction Engineer for approval.
b.Work subcontracted by a DBE firm to a non-DBE subcontractor will not be counted toward the DBE goal.
5.All subcontract documents rela ting to the contract shall be maintained during the course of the wo rk and preserved for a period of three years after final payment. These documents shall be available for inspection by authorized representativ es of State and Federal agencies. Copies of subcontract agreements shall be furnished to the Department upon request.
108.01 Prosecution and Progress
- 74 - 6. On projects requiring subm ittal of certified payrolls, all Subcontractor payrolls shall be checke d by the Contractor before submittal to the Engineer.
7.a. The Contractor, and subcontra ctor(s) when subletting work to lower tier subcontractors, shall includ e language which can be identified as a “Prompt Payment Clause” as a part of every subcontract for work and materials.
b.(1) The language constituting the “Prompt Payment Clause” will require payment to all first tier subcontractors for all labor and materials - -- for work completed to date --- within 20 calendar days of receipt of progress payments from the Department for said work. Similar language in a contract between a subcont ractor and a lower-tier subcontractor will require payment to the lower tier subcontractor for all labor and materials --- for work completed to date --- within 10 calend ar days of receipt of progress payments from the Contractor for said work.
2.The language constituting the “Prompt Payment Clause” will also stipulate the return of retainage within 30 calendar days after the satisfactory completion of the work by the subcontractor as evidenced by inclusion of the work on a progress payment.
3.Additionally, the language constituting the “Prompt Payment Clause” shall stipulate the Subcontractor’s obligation to return to the Contractor or Subcontractor, as the case may be, any overpayments which result from adjustments to meas ured and recorded quantities as part of the preparation of su bsequent progress payments or the final records. Overpayments shall be returned to the Contractor or Subcontractor, as the case may be, within 20 calendar days of receiving notice of the adjusted quantities and the amount of the overpayment.
c.The Contractor or Subcontr actor, as the case may be, may withhold payment only for just caus e and shall not withhold, delay, or postpone payment without first receiving written approval from the Department.
d.(1) The failure by the Contra ctor to comply with the “Prompt Payment Clause” without just cause, incl uding the timely return of retainage, is a breach of this contract which ma y result in the Department withholding the amount of payment from the Contractor that should have been paid to the Subcontractor, termination of this c ontract, or other such remedy as the Department deems necessary. The remedy shall be in the sole discretion of the Department and in no event shall a S ubcontractor have rights, or cause of action, against the Department under this Section.
2.Additionally, the failure of any subcontractor to comply with the “Prompt Payment Clause” without just cause, including the timely return of retainage to lower tier subcontractors, or by failing to return overpayments in a timely manner, may re sult in the Department withholding subcontract approval for other work.
8.a. (1) For Davis Bacon (DBRA)-covered projects and Non-DBRA-covered projects, a Contractor or Subcontractor may wish to use another individual owner-operator or tr ucking company to supplement his or her hauling fleet. (The Department will not recognize multiple individuals claiming to be collectively identified as a single “owner operator”.) Prosecution and Progress 108.01 - 75 - (2) This supplemental individual or company must either become a subcontractor (first tier or lower tier, as the case may be) or be otherwise documented by the utilizi ng Contractor or subcontractor by entering into a lease agreement for th e trucks and showing the driver (or drivers) from the supplemental co mpany on the Contractor’s or subcontractor’s payrolls in the manner described below.
3.Payrolls will only be accepted from the Contractor or approved subcontractors.
b.(1) If the decision is made to subcontract the hauling, the Contractor must first notify the NDOT Construction Office to request subcontract approval. As part of the subcontract approval process --- at any tier --- the proper certific ates of insurance must be provided before approval will be granted.
2.Additionally, on DBRA-c overed projects, the Contractor must submit payrolls for all subcontractors --- at any tier.
c.(1) Owner/Operators of trucks hired by a Contractor or subcontractor to supplement his or her hauling fleet are not subject to Davis Bacon wage requirements. However, they must still be shown on a payroll prepared by the Contractor or subcontra ctor for whom they are working with the notation “owner/operator.”
2.Any other employees of the “owner/operator” must appear on the certified payroll in complete detail and must be compensated according to the wage rates established for the project.
d.In the event a Contractor or subcontractor elects to not subcontract the supplemental driver or drivers but instead chooses to “carry the workers/truckers on their payroll, ” the following requirements must be met:
1.The Contractor’s or subc ontractor’s certif ied payroll must contain the names of all workers/truck drivers, and the payroll should identify their supervisors (including “owner-operators”).
2.Pay checks for the worker s/truckers in question must be drawn against the Contractor’s or subc ontractor’s payroll or other account.
3.Owner/Operators need only be identified as such on the payroll. Additional drivers, if any, fr om the “owner-operator’s” company must appear on a payroll in complete detail and be compensated according to the wage rates established for the project.
4.The Contractor or subcont ractor must enter into a lease agreement for the trucks driven by su ch drivers, and the lease agreement must show that the compensation for the leased equipment is on a time basis and not based on the amount of work accomplished. The lease agreements must be available for inspection by NDOT personnel.
5.Any supplemental truckers employed under this arrangement must still carry the minimum automobile liability coverage specified in the contract. It shall be the du ty of the Contractor to ensure that the supplemental truckers have such coverage in effect. Evidence of proper insurance must be presented for verification on demand.
108.02 Prosecution and Progress
- 76 - 108.02 -- Contract Time Allowance
1.a. The proposal will show a "ten tative starting date" on which the Contractor is expected to begin op erations and a specified number of working days or calendar days to complete the work.
b.After the award and executio n of the contract, the Department will issue a written Notice to Proceed, ordinarily, but not necessarily coinciding with the tentative starting date. The Contractor shall not begin work prior to the Notice to Proceed date except as permitted in paragraph 3 or 4 of Subsection 108.02. The work and the determination, count, and reporting of working days or calendar days shall commence on the Notice to Proceed date. The Contractor may, however, make a written request to the NDOT Construction Engineer to begin work on a different date.
1.Requests for a revised st arting date must be received by the NDOT Construction Engineer seven calendar days prior to either the proposed revised starting date or the te ntative starting date, whichever is earlier. The NDOT Construction Engineer will review the request, make an approval determinatio n, and written Notice to Proceed will be issued accordingly.
2.If an earlier starting date is approved by the NDOT Construction Engineer, the work and the determination, count, and reporting of working days or calendar days s hall start on the revised starting date unless the Contractor gives a subseq uent written notice at least seven calendar days in advance of the revis ed starting date. Such notice shall indicate the date to which the start has been changed and the reason for the change. However, unless authorized by the NDOT Construction Engineer, the work and the determination, coun t, and reporting of working days or calendar days shall not be delayed bey ond the "tentative starting date" shown in the contract.
i.If the Contractor elects to begin work before the "tentative starting date", no consideration will be given for a suspension of the working day or calendar day count or for an adjustment of the contract time allowance because of:
a.delays in obtaining the necessary right-of-way; (b) delays in obtaining the necessary environmental or other permits;
c.delays in delivery of materials, except for critical defense materials; or
d.delays due to any other conditions or restrictions stipulated in the contract. (ii) In the event that kn own or visible utility lines or conduits, fences, or any other conf licting appurtenances are encountered during the performance of the work bef ore the "tentative starting date," no consideration will be given for a suspens ion of the working day or calendar day count or for an adjustment or extens ion of the contract time allowance, nor will any additional compensation be allowed for any delays, inconvenience, or damages sustained by the Contractor due to interference from the conflicting appurtenances. Prosecution and Progress 108.02 - 77 - (iii) In the event that unknown or unforeseen utility lines, conduits, or any other conflicting ap purtenances are encountered during the performance of the work before the “tent ative starting date”, the Engineer may, at his or her discretion, give consideration for:
a.a suspension of the working day or calendar day count;
b.an adjustment or ex tension of the contract time allowance; or
c.additional compensation for any delays, inconvenience, or damages sustained by the Contractor due to interference from the conflicting appurtenances (iv) If a later starting date is approved by the NDOT Construction Engineer, the work and the determination, count, and reporting of working days or calendar days sha ll start on the revised starting date or on the actual starting date, whichever is earlier. The Contractor shall give the Engineer three NDOT work day’s notice of t he intent to start work prior to the revised starting date.
v.The Contractor assumes responsibility for all additional costs resulting from his/her requested change in the start date. This includes those cases when the cont ract is "tied" or related to another contract.
2.a. The determination of the day s which constitute "working days" or "calendar days" to be charged against the time allowance for completion of the work shall be made by the Engineer in accordance with the definitions shown in Subsections 101.0314 and 101.0404.
b.The determination, count, and reporting of working days or calendar days shall begin on the actual beginning date of any work or on the date established in the written Notice to Proceed, whichever is earlier. The determination and count shall continue unt il all work is completed unless the Engineer authorizes a temporary su spension of the operations in accordance with Subsection 108.06.
c.If the time allowance for t he contract has been established on a calendar day basis, the Contractor is expected to schedule the work and assign whatever resources are necessary to complete the work in the time allowance provided regardless of the weather. Accordingly, regardless of anything to the contrary contained in these Specifications, the Department will not consider delays caused by inclement or unseasonable weather as justification for an extension of t he contract time allowance unless:
1.weather phenomena alleged to have contributed to or caused the delay is of such magnitude t hat it results in the Governor issuing a Disaster Declaration, and
2.weather phenomena alleged to have contributed to or caused the delay can clearly be shown to have directly impacted the work on the critical path identified on the contractor’s schedule.
108.02 Prosecution and Progress
- 78 - d. Working days or calendar days will be charged during temporary work suspensions when the work suspension resulted from the Contractor failing to:
1.Correct conditions unsafe for State employees or the general public.
2.Meet environmental quality regulations. (3) Carry out provisions of the contract. (4) Carry out orders given by the Engineer.
e.When a Contractor is the apparent low bidder for work included in two or more time allowances, the individual time allowances shown in the proposal shall apply. The use of a combined time allowance for work included in two or more time allowances will not be allowed.
3.Working Day Time Allowance. Although the work is to be documented on the weekly report of work ing days, the Contractor will not be charged working days on a project wher e the contract time allowance is based on working days when performing the following types of work:
a.After receipt of t he Notice to Proceed, and prior to the date established in the Notice to Proceed, and after notifying the Department, the following items of work may be perfo rmed without the charge of working days, provided that the work is not otherwise restricted in the contract (including but not limited to environmental provisions), the Contractor is not engaged in any other items of contract work included in the contract time allowance and provided that the perfo rmance of such work does not interfere with the normal use of the road by traffic,:
1.Driving test piling (2) Channel excavation work that facilitates bridge and culvert work.
3.Clearing and grubbing or other environmentally-related tasks to satisfy environmental commitm ents or avoid environmental impacts.
4.Clearing and grubbing work and the furnishing and placement of right-of-way markers in order to facilitate relocation or rehabilitation of utilities, relocation of other facilities, or other non-project construction work.
5.Pre-watering of excavation or borrow areas. (6) Ground preparation for landscape planting.
7.Installation of traffic c ontrol provided the signs are properly covered until work begins.
8.Contractor-provided cons truction surveying and staking.
9.Environmental commitments that are required to be performed prior to the start of construction. This includes activities such as bird netting of bridges, tree-topping, and mowing for the burying beetle.
10.The production a nd stockpiling of aggregates.
11.Potholing existing undergr ound utilities to determine their exact locations prior to construction of new underground construction within the limits of construction. Prosecution and Progress 108.02 - 79 - (12) Abatement of hazardous materials such as asbestos and lead.
13.Any work which does not require an inspector and performed entirely outside t he limits of the project.
b.Clearing and grubbing performed subsequent to the date established for the start of work on the project, provided that weather and soil conditions, as determined by the En gineer, are such t hat other items of work included in the same contract time allowance cannot be performed, except channel excavation work described in Paragraph 4.a. of this Subsection.
c.Backfilling of bridge abutm ents after the grading operations have been suspended for a period of time awaiting completion of structures, provided that all other items included in the grading group of the contract have been completed.
d.Maintenance operations performed during described maintenance periods for bituminous bas e, provided that all other items included in those contract groups have been completed.
e.Landscape maintenance work during the establishment period for landscape plantings, and for the work of any subsequent replanting.
f.(1) Minor miscellaneous or finishing work, provided that:
i.the Contractor does not delay in prosecuting the minor miscellaneous or finishing work; (ii) the Contractor, subjec t to weather and soil conditions being suitable, begins and prosecutes the remaining work without interruption; (iii) all significant pay items (and work subsidiary to them, e.g. bridge painting) are complete; and (iv) all other work has been completed to the extent that the work could be opened to traffic.
2.The Engineer shall be the sole judge of which work is deemed to qualify as minor miscellaneous or finishing work and whether or not the Contractor has begun and pr osecuted the remaining work without interruption.
3.At such time that the En gineer advises the Contractor that only minor miscellaneous or finishing work remains, the determination and count of working days will be suspend ed and the Contractor shall have three working days to commence that work. If the Contractor allows more than three working days to elapse before commencing the minor miscellaneous or finishing work or fails to prosecute the remaining work without interruption, then the contractor will have failed to satisfactorily prosecute the remaining work; and the minor miscellaneous or finishing work will become the current controlling operation. The determinati on and count of working days will resume and continue until final completion of all work.
108.02 Prosecution and Progress
- 80 - 4. Calendar Day Time Allowance. Although the work is to be documented on the weekly report of work ing days, the Contractor will not be charged calendar days on a project wh ere the contract time allowance is based on calendar days when performing the following types of work:
a.After receipt of the Notice to Proceed, and prior to the date established in the Notice to Proceed, and after notifying the Department, the following items of work may be perf ormed without the charge of calendar days, provided that the work is not otherwise restricted in the contract (including but not limited to environmental provisions), the Contractor is not engaged in any other items of contract work included in the contract time allowance and provided that the perfo rmance of such work does not interfere with the normal use of the road by traffic:
1.Driving test piling
2.Channel excavation work that facilitates bridge and culvert work.
3.Clearing and grubbing or other environmentally- related tasks to satisfy environmental commitments or avoid environmental impacts.
4.Clearing and grubbing work and the furnishing and placement of right-of-way markers in order to facilitate relocation or rehabilitation of utilities, relocation of other facilities, or other non-project construction work.
5.Pre-watering of excavation or borrow areas. (6) Ground preparation for landscape planting. (7) Installation of traffic control provided the signs are properly covered until work begins.
8.Contractor-provided construction surveying and staking.
9.Environmental commitments that are required to be performed prior to the start of construction. This includes activities such as bird netting of bridges, tree-topping, and mowing for the burying beetle.
10.The production a nd stockpiling of aggregates.
11.Potholing existing underground utilities to determine their exact locations prior to construction of new underground construction within the limits of construction.
12.Abatement of hazardous materials such as asbestos and lead.
13.Any work which does not require an inspector and performed entirely outside t he limits of the project.
b.(1) Minor miscellaneous or finishing work, provided that: (i) the Contractor does not delay in prosecuting the minor miscellaneous or finishing work; (ii) the Contractor, subjec t to weather and soil conditions being suitable, begins and prosecutes the remaining work without interruption; Prosecution and Progress 108.02 - 81 - (iii) all significant pay items (and work subsidiary to them, e.g. bridge painting) are complete; (iv) all other work has been completed to the extent that the work could be opened to traffic; and
2.The Engineer shall be the sole judge of which work is deemed to qualify as minor miscellaneous or finishing work and whether or not the Contractor has begun and pr osecuted the remaining work without interruption.
3.At such time that the En gineer advises the Contractor that only minor miscellaneous or finishing wo rk remains, the count of calendar days will be suspended. Subject to weather and soil conditions being suitable, the Contractor shall have three calendar days to begin and prosecute the work without interruption. If the Contractor fails to do so, the count of calendar days will resume and continue until final completion of all work.
5.The Engineer will make avail able on the Department’s website the Department’s charge of working days or calendar days. If the Contractor does not concur with the charge of days, the Contractor shall provide a written explanation of the basis of non occurrence within 14 days from the date the information was made available. If the Contractor fails to do so, the charge of days shall be deemed to hav e been accepted by the Contractor.
6.a. If the Contractor finds that they will be unable to complete the work within the number of days allowe d by the contract, the Contractor may make a written request to the Engineer promptly for a time extension. Such a request shall:
1.Describe the nature of the delay involved.
2.Describe the conditions beyond the Contractor's control which are responsible for the delay.
3.State the length of time that operations have been delayed or it is anticipated that they will be delayed and submit sufficient evidence to substantiate the fact that the delay resulted from conditions beyond the Contractor’s control.
b.If the Engineer finds that the delay was caused by conditions beyond the Contractor's contro l, the Engineer will either:
1.Authorize a temporary suspension of operations.
2.Adjust the number of working days or calendar days previously charged.
3.Grant, in writing, an extension of the working day or calendar day time allowance consistent with the facts presented.
c.The action taken will depend upon the nature and extent of the delay involved. The Engineer's decision shall be final and conclusive.
7.If the time allowance for the contract has been established on a calendar day basis, the Contractor is expected to schedule the work and assign whatever resources are necessary to complete the work in the time allowance provided regardless of the weather. Accordingly, regardless of anything to the contrary contained in these Specifications, the Department will not consider any delay resulting from natural phenomena, including the
108.02 Prosecution and Progress
- 82 - weather, as justificatio n for an extension of the contract time allowance unless:
a.the phenomenon alleged to have caused the delay is of such magnitude that the Governor iss ues a Disaster Declaration, and
b.the phenomenon alleged to have caused the delay can clearly be shown to have directly impacted the work on the critical path identified on the Contractor’s schedule.
8.When the Contract requires work to be performed in cold weather, loss of efficiency due to prosecution of the work during cold weather will not be considered in determining whether work days will be adjusted.
9.a. The Department will not co nsider delayed material delivery and/or fabrication justif ication for a contract time extension unless:
1.The Contractor provides written documentation that the delay was caused by an industry-wide strike, natural disaster, area-wide shortage, or other unusual market condition occurring after contract award, or
2.The Contractor demonstrat es that the delay was due to demand for critical defense materials such as steel, copper, or aluminum.
b.A request for a time extension due to delays in material deliveries or fabrication should include the following items:
1.A letter from the Contra ctor explaining the situation, including how the delay will affect the remainder of the project.
2.A letter from the supplier, (raw material or finished product as appropriate) or fabricator confirmi ng the pertinent material order dates and causes for the delay.
3.Information about the Cont ractor's efforts to obtain the material from other suppliers.
c.After reviewing the request, the Engineer may: (1) Authorize a temporary suspension of operations. (2) Adjust the number of working days or calendar days previously charged.
3.Grant, in writing, an extension of the working day or calendar day time allowance consistent with the facts presented.
4.Deny the request. 10. A shortage of labor available to work on the project will not be considered justification for a contract time extension.
11.a. The Engineer will evaluate all contract modifications, extra work not in the original contract, or additional work resulting from additional quantities of contract item s and may then grant additional working days or calendar days to the contract time allowance as follows:
1.When the Engineer determine s that the contract time was not impacted, no additional working days or calendar days will be added to the contract time allowance. Prosecution and Progress 108.04 - 83 - (2) When the extra work or additional work is clearly shown to be the current controlling operation, additional working days or calendar days may be granted on the basis of the actual working days or calendar days charged for performing the work.
3.Additional working days or calendar days may be added to the contract time allowance administrat ively or as part of other settlements or agreements when the Engineer deter mines the additional days are equitable.
4.When the time required to perform the extra or additional work is difficult to measure and is not addressed under Paragraphs 12.a. (i), (ii), or (iii) above, time extensions may be granted in proportion to the value of the extra and additional work compar ed to the total amount of the original contract. Further consideration may be given when the Contractor can show that the extra or additional work required more time than its proportional value. Similarly, the Engineer will no t be restricted to this method when the value of the extra work is grossly disproportionate to the time required to complete it.
b.Increases in the quantities of work associated with traffic control items measured by the day will not be considered for extending the contract time allowance. Overruns of traffic control items that are measured by methods other than time will be considered for extending the contract time allowance.
108.03 Prosecution of Work
1.The Contractor shall start work and the determination and count of working days or calendar days will begin on the date specified in the written "Notice to Proceed".
a.If, after the Notice to Proc eed has been issued, circumstances prevent the Contractor from beginnin g work on the date specified in the written Notice to Proceed, the Contract or may request from the Department a new starting date, in writing, thr ee NDOT work days before the original date specified in the written Notice to Proceed.
1.This request must include the reason for the change. (2) The start date may be post poned if in the discretion of the Engineer, the postponement is not detrime ntal to the Department, or if the contract is amended to addres s the issue of the delay.
108.04 Limitation of Operations
1.The Engineer reserves the right to designate where the work shall start.
2.The Contractor shall work to minimize interference with traffic. The Contractor shall have due regard to the location of detours and to the provisions for handling traffic. The Contractor shall not open up work to the prejudice of work already started.
3.The Engineer may require the C ontractor to finish a section on which work is in progress before work is started on any additional section.
4.Placing right-of-way markers sha ll be one of the first orders of work.
108.05 Prosecution and Progress
- 84 - 108.05 -- Contractor Emplo yees, Methods, and Equipment
1.The Contractor shall employ sufficient labor and equipment for completing all work requ ired by the contract.
2.All Contractor employees must have sufficient skill and experience to perform their assigned work. All employees engaged in special or skilled work shall have sufficient experience in such work and in the operation of the equipment so as to perform all work in accordance with the contract, and industry standards.
3.Any Contractor employee or S ubcontractor employee who, in the judgment of the Engineer, does not perfo rm the work in a proper and skillful manner or acts unprofessionally or disorderly shall, at the written request of the Engineer, be removed from the worksite and not allowed on site again without the approval of the Engineer.
4.Should the Contractor fail to remove such person or persons as required above or fail to furnish suitable and sufficient personnel for the proper prosecution of the work, the Engineer may withhold payments which become due and suspend the work unt il such orders are implemented.
5.a. All equipment shall be of su fficient size and proper mechanical condition to meet the requirements of the contract, and industry standards. The Engineer may require replacement of any unsatisfactory equipment.
b.Specified equipment and methods shall be used and followed unless changes are authorized by the Engineer.
c.The Contractor may reques t a change of method or equipment from the Engineer. The written request shall include a complete description of the methods and equipment and an explanation of the reasons for the change. If approval is given, the Contra ctor will be responsible for producing work that conforms with original contract requirements.
d.If, after trial use of the su bstituted methods or equipment, the Engineer determines that the work produced does not meet contract requirements, the Engineer will direct the Contractor to discontinue the use of the substitute methods or equipment and complete the remaining construction with the originally specified methods and equipment. The Contractor shall remove the deficient work and replace it with work of specified quality or take other action as the Engineer may direct.
6.When the Engineer grants permission to use any particular methods, equipment, or appliances, this action does not:
a.Relieve the Contractor fr om furnishing other equipment or appliances or adopting other methods when it appears necessary to prosecute the work as specified.
b.Bind the Department to ac cept work which does not meet contract specifications.
c.Preclude the Engineer from requiring other methods, equipment, or appliances at any time when in his/her judgment the methods, equipment, or appliances which he/she has allowed the Contractor to use prove to be inadequate, insufficient, or unsatisfactory. Prosecution and Progress 108.07 - 85 - 108.06 -- Temporary Suspension of Work
1.a. The Engineer has the authori ty to suspend the work, wholly or in part, for such periods as may be deemed necessary due to conditions considered unfavorable for prosecution of the work.
b.The Engineer has the authority to suspend work for the Contractor's failure to carry out orders given by the Engineer or for failure to comply with any provision of the contract.
c.While the Engineer may initially notify the Contractor verbally, the Engineer will notify t he Contractor in writing of all suspensions.
d.The Contractor shall not suspend work without the Engineer's written authorization.
2.Suspensions of Work Ordered by the Engineer: a. If the performance of all or any portion of the work is suspended or delayed by the Engineer for an unreasonable period of time (not originally anticipated, customar y, or inherent to the construction industry) and the Contractor believe s that additional compensation or contract time is due as a result of su ch suspension or delay, the Contractor shall submit to the Engineer a written request for adjustment within seven calendar days of receipt of the notic e to resume work. The request shall describe the reasons and support for such adjustment.
b.Upon receipt, the Engineer will evaluate the Contractor's request. If the Engineer agrees that t he cost and/or time required for the performance of the contract has increas ed as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, suppliers, or Subcontractors at any approved tier and not caused by the weather, the Engineer will make an adjustment (excluding profit) and modify the contract accordingly. The Engineer will notify the Contractor of the determinati on of whether or not an adjustment of contract is warranted.
c.No contract adjustment will be allowed unless the Contractor submits the request for adjustment as des cribed in Paragraph 2.a. of this Subsection.
d.No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided for or excluded under any other term or condition of this contact.
108.07 Contractor's Work Schedule
1.The Contractor shall employ sufficient labor, materials, and equipment to complete the contract requirements on or before the expiration of the contract time allowance.
2.a. The Contractor shall develop a progress schedule. The schedule shall be submitted and reviewed with the Engineer at the Preconstruction Conference. This schedule shall show:
1.Completion of all work within the specified contract time. (2) The proposed order of work.
108.07 Prosecution and Progress
- 86 - (3) Projected starting and completion times for major phases of the work and for the total project.
4.Whether portions of the work are to be accomplished by the Contractor or a Subcontractor.
5.The schedule shall be developed using a method that will clearly and unmistakably identify the cr itical path of interrelated tasks or items of work required to complete th e project. (The critical path is defined as the sequential path of activities through a network diagram from beginning to end of the project whic h provides for the completion of the project in the least amount of time.) The Contractor shall provide sufficient material, equipment, and labor to meet the completion times in this schedule.
b.The Contractor shall furn ish the necessary copies of the schedule to the Engineer.
c.Progress estimates, except for certain authorized materials which may be paid for as provided in Subsection 109.07, will not be made until the Contractor has submitted a schedule that meets contract requirements.
d.The Department will accept a progress schedule indicating an early completion but cannot guarantee the Department's resources will be available to meet the accelerated schedule. No additional compensation will be allowed if the Contractor is not abl e to meet his/her accelerated schedule due to the unavailability of t he Department's resources.
3.a. If the Contractor's progr ess falls behind their schedule, the Engineer may request that the Cont ractor submit a revised progress schedule that demonstrates how and when the Contractor intends to complete the work. The revised project schedule shall be submitted within seven days.
b.The Engineer may suspend progress payments until the revised schedule is submitted if the Co ntractor fails to submit a revised progress schedule within seven days.
c.If the Contractor's progres s falls behind their schedule, the Contractor shall take whatever action is necessary to expedite completion of the work.
4.When the Contractor's operat ions are materially affected by changes to the contract, the Engineer may request a revised progress schedule.
a.The Contractor shall subm it the progress schedule within seven days after receipt of the Engineer's request.
b.This revised progress schedul e shall show how the Contractor proposes to prosecute the balance of the work.
c.The Contractor's progress schedule shall include any contract requirements regarding the order of performance of the remaining work.
5.If the Contractor fails to make satisfactory arrangements to adjust their performance and schedule within seven days, their qualification for submitting bids at future lettings may be suspended until the Contractor's performance and schedule demonstrate th at the contract will be completed Prosecution and Progress 108.08 - 87 - by a time satisfactory to the Department. The Engineer will also issue a written decision as to whether to allow the Contractor to proceed or to stop work and terminate the contract.
6.When the Contractor desires to change the current schedule, they must submit the revised schedule to t he Engineer at least seven days before any significant deviation from the current schedule.
7.The Engineer’s review of t he Contractor’s schedule shall not constitute agreement by the Department that the Contractor can complete the work by the date shown in that schedule.
108.08 Liquidated Damages
1.Liquidated damages are intended to compensate for damages incurred by the Department due to the Co ntractor's failure to complete the work within the time period allowed by the contract. Such amounts are not to be considered as penalties.
2.The Department utilizes the fo llowing formula to calculate liquidated damages when a contract is not comp leted on time. The value of liquidated damages determined by this formula represents a portion of the Department's costs incurred because of delays in completing the contract. LIQUIDATED DAMAGES FORMULA L D = R x C T where: LD = Liquidated damages per working day or calendar day (rounded to the nearest dollar). C = Original contract amount (includes all work completed and unfinished). T = Original number of calendar days or working days, whichever is specified in the contract. R = 0.06 for working day contracts. R = 0.12 for calendar day contracts.
3.a. The Contractor agrees: (1) To pay, according to the formula in Paragraph 2. of this Subsection, liquidated damages for each working day/calendar day beyond the number of working days/calendar days authorized for completion of the contract, and
2.To authorize the Engine er to deduct liquidated damages from any money due or coming due the Contractor.
b.If no monies are due the Contractor, the Department shall have the right to recover liquidated damages from the Contractor, from the surety, or from both the Contra ctor and the surety.
4.Liquidated damages will not be assessed for any days covered by an approved time extension. Deducti ons or payment of liquidated damages will not release the Contractor from further obligations and liabilities to complete the entire contract.
108.09 Prosecution and Progress
- 88 - 108.09 -- Completion of Contracts in Default
1.The Engineer shall give the Cont ractor and the Contractor's surety written notice of default, delay, and/or neglect, as appropriate, whenever the Contractor:
a.Fails to perform the work with sufficient employees, equipment, or materials to ensure the contract's prompt completion.
b.Does not perform work which meets the standards established in the contract.
c.Neglects or refuses to remove excess or unacceptable materials.
d.Fails to correct any work rejected as defective or unsuitable.
e.Discontinues the prosecut ion of the work without the Engineer's approved written authorization.
f.Fails to resume work within 30 days after the Engineer directs resumption of work.
g.Becomes insolvent, declares bankruptcy, commits any act of bankruptcy or insolvency, or allows an y final judgement to stand unsatisfied for a period of ten days.
h.Makes an assignment for the benefit of creditors. i. Is a party to fraud in t he performance of the contract.
j.For any other cause does not carry on the work in an acceptable manner.
2.If the Contractor or Contractor's surety does not proceed according to the Department's default, delay and/or neglect notice within ten days of its receipt, the Department has full power and authority, without violating the contract, to take the prosecution of the work out of the hands of the Contractor. The Department may appropria te or use any or all materials and equipment at the worksite as may be su itable and acceptable and may enter into an agreement with others for the co mpletion of the contract according to the terms and provisions thereof, or use such other methods as shall be required for the completion of the c ontract in an acceptable manner.
3.All costs and charges incurred by the Department, together with the cost of completing the work under contract, shall be deducted from any money due or which may become due t he Contractor. In case the expense so incurred by the Department shall be less than the sum which would have been payable under the contract if it had been completed by the Contractor, then the Contractor shall be entitled to receive the difference, and in case such expense shall exceed the sum which would have been payable under the contract, then the Contractor and the surety shall be liable and shall pay to the State the amount of said excess.
108.10 Termination Clause - National Emergency
1.The Department may terminate the contract or a portion thereof by written notice when the Contractor is prevented from proceeding with the construction contract as a direct result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense. Prosecution and Progress 108.11 - 89 - 2. When a contract, or any portion thereof, is terminated before completion of all items of work in the contract, payment will be made for the actual number of units or items of work completed at the contract unit price, or as mutually agreed for items of work partially completed or not started. No claim for loss of anticipated profits shall be considered.
3.Reimbursement for organizati on of the work, other overhead expenses (when not otherwise included in the contract), and moving equipment and materials to and from the job will be considered, the intent being that the Contractor shall receive an equitable settlement.
4.At the Contractor 's option, the Depart ment will purchase any acceptable materials obtained or ordered by the Contractor for the work but not incorporated in the project at their actual costs as shown by receipted bills and actual cost records at such point of delivery as may be designated by the Engineer.
5.Termination of a contract or a portion thereof shall not relieve the Contractor of his/her responsibilities for the completed work, nor shall it relieve the surety of its obligation for and concerning any just claim arising out of the actual work performed.
108.11 Termination Clause - Other Reasons
1.The contract, or portions thereof, may also be terminated for the convenience of or if in the best intere st of the State by written notice at the sole discretion of the Engineer.
2.When a contract or portions ther eof is terminated under the terms of this Subsection, final settlement shall be made in accordance with the provisions of Subsection 108.10. - 90 - SECTION 109 -- MEASUREMENT AND PAYMENT
109.01 Measurement of Quantities
1.Field Measured Quantities
a.(1) After the work is completed and before final payment is made for the contract, the Engineer will make final measurements, if required, to determine the quantities of various items of work performed.
2.When the work is performed according to the lines, grades, dimensions, and at the locations shown in the contract, the Engineer may elect to pay the plan quantity and not take actual field measurements.
3.The Contractor will be paid for the actual quantity of work performed in accordance with these Specifications as shown by the plan quantities or the final measurements.
b.Unless otherwise specified, all longitudinal measurements will not consider the slope of the measur ed item but will measure the horizontal distance between end points. Deductions will be made for individual fixtures in the roadway having an area greater than 1 square yard (1 m2).
c.On all transverse measurements for area of base courses and flexible or rigid surface courses, the dimensions to be used in calculating the pay area shall be the neat dimensions shown in the contract or ordered in writing by the Engineer.
d.When requested by the C ontractor and approved by the Engineer, in writing, material specifi ed to be measured by the cubic yard (meter) may be measured by determining the weight on approved scales, the weight then being converted to cubic yards (meters) for payment purposes. Factors for conversion from dry weight measurement to volume measurement will be determined by the Engineer and shall be agreed to by the Contractor before such measurem ent of pay quantities is used. The weight of any water in the aggre gate shall be deducted before using the conversion factor.
e.When requested by the C ontractor and approved by the Engineer, material specified to be measured by the pound or ton (kilogram) may be measured on scales equipped with an automatic device which signals or stops the flow of material when a predetermined net weight, set on the scales, is reached. This procedur e must produce a total net weight for each load at least equal to the predetermined net weight. The quantity to be measured for payment will be the predetermined net weight.
f.Portable Scales: (1) Scales shall be installed on adequate foundations and in accordance with the manufacturer's recommendations. They shall have sufficient capacity to determine the weight of a fully loaded truck.
2.The Contractor shall calibrate the scales accurate to 0.5% of a fully loaded truck in the Engineer's presence, or the scale shall have a current Nebraska Department of Ag riculture inspection certificate. Documentation showing that scales were calibrated by a scale company service crew during the current season is also acceptable.
3.The scale shall be cross-checked daily for accuracy by comparing its results with a load's gross weight on an approved commercial scale.
Source: Nebraska Standard Specifications for Highway Construction, 2017 Edition. Pages 107–123 of 1,048.