103AWARD AND EXECUTION OF CONTRACT

New Hampshire Department of Transportation Standard Specifications – 2016

103.01Consideration of Proposals

After Proposals are opened and read, they will be compared on the basis of summation of the products of the quantities and the Item Bid Prices unless otherwise defined in the Proposal Form. The results of the comparisons will be available to the p ublic. If a discrepancy exists between the total shown in the bid and that obtained by adding the products of the quantities of items and the Item Bid Prices, the latter shall govern. The Department reserves the right to reject any or all Proposals, waive techni calities, correct minor discrepancies, or advertise for new Proposals if, in the judgment of the Commissioner, the best interests of the State will be promoted thereby.

103.02Award of Contract

Within 60 calendar days after the opening of Proposals, if a Contract is to be awarded, the award will be made to the prequalified bidder who submits the lowest priced responsive Proposal. The successful bidder will be notified by letter mailed to the address shown on the Proposal of the acceptance of the Proposal pending Governor and Council approval. If the Contract is not awarded by the Department and approved by the Governor and Council within 60 days after the opening of Proposals, the bidder has the right to withdraw the bid without penalty.

103.03Cancellation of Award

The Department may cancel the award of any Contract before execution without incurring any liabili ty.

103.04Return of Proposal Guaranty

Proposal Guaranties, of all except those of the two lowest bidders, will be returned within seven (7) days following the opening of the Proposals. Irregular Proposals will have the Proposal Guaranties returned upon determination of the irregularity. The retained Proposal Guaranties of the two lowest bidders will be returned within ten days following the approval by the Governor and Council of the aw ard of the Contract. A Bidder will not be released from its bidding obligations because of errors in the preparation of the Proposal without forfeiting the Proposal Guaranty.

103.05Contract Bond

Unless specifically waived in the Proposal, upon execution of the Contract, the successful bidder shall furnish the Department a surety bond or bonds equal to the sum of the Contract amount. If a bond is used, it shall meet the following requirements:

Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies, ” as published by the United States Department of the Treasury, Fiscal Service, Circular 570. The Bonds shall guarantee the execution, faithful performance, and completion of the work to be done under the Contract, and payment in full of all bills and accounts for materials and labor used in the work. In the event the surety or bonding company fails or becomes financially i nsolvent, the Contractor shall file a new bond(s) in the amount designated by the Department, within 30 calendar days of such failure or insolven cy.

103.06Disadvantaged Business Enterprise (DBE) Program Requirements

The Department is required to set an overall annual goal for DBE participation in Federal -aid projects. In order to fulfill that goal, Bidders during the bidding stage and the low Bidder after the opening of bids are encouraged to demonstrate best efforts to utilize minority Subcontractors by soliciting bids from DBEs. These measures to obtain participation are known as race- neutral. Race-neutral DBE participation occurs when a DBE receives a prime Contract through customary competitive procurement procedures, is awarded a subcontract on a prime Contract that does not carry a DBE Contract goal, or even if there is a DBE Contract goal, wins a subcontract from a prime Contractor that did not consider its DBE status in making the award (e.g. prime Contractor that uses a strict low bid system to award subcontracts). The Department will use Contract goals as a race -conscious means of meeting any portion of the overall goal not achieved by use of race-neutral means. A DBE is defined as a business t hat is owned and controlled by one or more socially and economically disadvantaged person(s). For the purpose of this definition:

the United States and who is a Woman, Black, Hispanic, Portuguese, Native American, Asian American, or a member of another group, or an individual found to be disadvantaged by the Small Business Administration pursuant to Section 3 of the Small Business Act.

New Hampshire Department of Transportation Standard Specifications – 2016

legitimately are held by a disadvantaged person(s).

interests legitimately are held by a disadvantaged person(s). The disadvantaged group owner(s) or stockholder(s) must possess control over management, interest in capital, and interest in earnings commensurate with the percentage of ownership. Disadvantaged participation in a joint venture must also be based on the sharing of real economic interest and must include proportionate control over management, capital, and earnings, as above. If the disadvantaged group ownership interests are real, substantial, and continuing and not created solely to meet the requirements of this program, a firm is considered a bona fide DBE. A current listing of certified DBEs that may wish to participate in the highway construction program and the scope of work for which they are certified will be in the Proposal. Credit will be given for the value described by a DBE performing as:

The manufacturer must be a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the Contractor. Brokers and packagers shall not be regarded as manufacturers.

A regular dealer is defined as a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the Contract are bought, kept in stock, and regularly sold to the public. Brokers and packagers shall not be regarded as regular dealers.

Eligible services include professional, technical, consultant, or managerial, services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for the performance of the Contract. Eligible services also include agencies providing bonding and insurance specifically required for the performance of the Contract.

100% of expenditures committed when trucks are owned, operated, licensed and insured by the DBE and used on the Contract and, if applicable, includes the cost of the materials and supplies. 100% of expenditures committed when the DBE leases trucks from another DBE firm includi ng an owner-operator. 100% of reasonable fees or commissions the DBE receives as a result of a lease arrangement for trucks from a non - DBE, including an owner-operator.

On all Federal-aid projects, the Contractor, during the life of the Contract and on a semi-annual basis for the periods covering October 1st –March 31st and April 1st –September 30th shall submit a listing of all DBEs that were engaged in the Work, specifying item(s) of work performed by each DBE and the dollar amount paid for each item of work. Copies of canceled checks to the DBEs or statements from the DBEs together with supporting documentation (i.e., billings, invoices, etc., referenced to the Contract) must be submitted as proof of payment. This documentation shall be submitted to the Department within 30 days of the reporting period end. Failure of the Contractor to submit this information may result in the Department withholding progress payments. On Federal-aid projects that specify a DBE Contract goal in the Information Report, Bidders during the bidding stage and the low Bidder after the opening of the bids, shall make every reasonable good faith effort to use certified disadvantaged business enterprises for work to be performed under the proposed Contract. In addition the following is also required on Federal-aid projects which specify a DBE Contract goal: Within 3 working days after the bid opening date, the low Bidder shall file with the NHDOT Office of Federal Compliance a Disadvantaged Business Enterprise (DBE) Commitment Form provided by the Department. This form will list the DBE firms that will be used during the execution of the Work. The list shall show the name of the firm, the item/material/type of work involved and the dollar amount o f work to be performed. The dollar total of each commitment shall be totaled and a percentage determined. In

New Hampshire Department of Transportation Standard Specifications – 2016 addition to the commitment form, letters of intent signed by principals of the low bidder and each DBE firm listed, shall be submitted prior to Department approval of the DBE commitment. If the low bidder cannot provide the list and accepted letters of intent showing DBE participation in the Work, within the above time frame, the Contractor may request additional time through the Department’s DBE L iaison Officer to comply or to provide written documentation of efforts to obtain participation. Acceptable documentation showing all good faith efforts ma de to obtain participation may be reason to waive the goal requirement of the project. Failure to provide the required listing with the dollar participation total or acceptable documentation of good faith efforts to obtain DBE participation within 3 working days after the bid opening date, or by another deadline established by the DBE Liaison Officer will be considered a lack of responsiveness on the part of the low bidder. Rejection of the low bid under these circumstances will require the low bidder to surrender the Proposal Guaranty to the Department. The submission and approval of the above forms does not constitute a formal subcontract as required in 108.01. If for any reason during the progress of the Work the Contractor finds that DBEs included on the list are unable to perform the proposed work, the Contractor, with written release by the committed DBE or approval of the Department, may substitute other DBE firms for those named on the list. If the Contractor is able to document clearly his inability to find qualified substitute firms to meet the project goa l, the Contractor may request in writing a waiver of that goal. If at any time during the life of the Contract it is determined that the Contractor is not fulfilling the goal or commitment(s) and is not making a good faith effort to fulfill the DBE requirement, the Department may withhold progress payments. Failure of the Contractor to meet the project goal or the specified DBE commitment(s), whichever is the lowest, will result in a reduction in Contract payment by an amount equal to the difference between the actual Contract dollars multiplied by the applicable commitment percentage and the dollar value of the work actually performed by the DBEs. If the Contractor ’s failure to meet the DBE goal or commitment(s) in the Contract is the result of circumstances clearly documented to be beyond the control of the Contractor, a written request for waiver of the goal or commitment(s) must be received. The Commissioner may waive, in whole or part, the reduction in Contract payments specified herein. Fulfillment of the goal percentage shall be determined by dividing the dollars committed to the DBEs by the Contract Amount. These requirements are in addition to all other Equal Employment Opportunity requirements on Federal- aid Contracts.

103.07Execution and Approval of Contract

The signed Contract, together with the Contract Bond, certificate of insurance, and the Disadvantaged Business Enterprise forms, if required, shall be returned to the Department within 20 days after the date of notice that the Proposal has been accepted. The Contract will not be considered approved until it has been fully executed by all of the parties to the Contract and the a ward approved by the Governor and Executive Council.

103.08Failure to Execute Contract

If the successful bidder fails to execute the Contract and file an acceptable bond within 20 days after the date of notice of acceptance of the Proposal, the Department may cancel the notice of award and retain the bidder’s Proposal Guaranty which shall become the property of the Department, not as a penalty, but in liquidation of damages sustained. Contract award may then be made to the next lowest responsible bidder or the Work may be readvertised.

New Hampshire Department of Transportation Standard Specifications – 2016

104.01Intent of Contract

The intent of the Cont ract is to provide for the construction and completion in every detail of the work it describes. The Contractor shall furnish all labor, materials, equipment, tools, transportation, services, and supplies required to complete the Work under the Contract.

104.02Revisions to the Contract

The Department reserves the right to revise the Contract at any time. Revisions to the Contract neither invalidate the Contract nor release the surety, and the Contractor agrees to perform the Work as revised. The Contractor shall not proceed with the revised Work until directed to do so by the Engineer, but shall continue with all work unaffected by the revision. Nothing contained in this section shall constitute a waiver of the State’s sovereign immunity. If the Contractor believes that it has encountered circumstances that necessitate a revision to the Contract, the Contractor shall immediately notify the Engineer in accordance with subsection 104.02.G. If the Contractor believes it has encountered a Differing Site Condition as set forth in 104.02.B , Significant Changes in the Character of Work as set forth in 104.02.C , or Suspensions of Work Ordered by the Engineer as set forth in 104.02.D , the Contractor shall provide notice as required by these clauses and as required by 104.02.G . Failure to provide notice as specified in 104.02.G constitutes a waiver of the Contractor’s entitlement to compensation or a time extension and releases the State from responsibility for providing compensation or a time extension for any related claims filed under 105.18. If the Engineer concludes that the Contract should be revised, as provided in 104.02.G .4, compensation will be provided in accordance with 109.04, and time extensions will be granted in accordance with 108.07. In addition, the term “ adjustment” as used in 104.02.B, C, and D is defined as a time extension in accordance with 108.07 and compensation in accordance with 109.04. In 104.02.C, the phrase, “ as provided elsewhere in the Contract,” means as provided in 108.07 with regard to time extensions and in 109.04 with regard to compensation. With regard to 104.02.D , Suspensions of Work, an adjustment is provided for suspensions or delays “ caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or Sub-Contractors at any approved tier, and not caused by weather.” The Contractor is also not entitled to an adjustment for suspensions or delays caused by the reasons set forth in 108.07.B, Excusable, Non-Compensable Delays. The Department may revise the Contract for any of the reasons specified in 104.02.B. Differing Site Conditions; C. Significant Changes in the Character of Work; D. Suspension of Work; E. Extra Work, or F. Elimination of Work. Sections 104.02.B, C, and D contain wording mandated by FHWA. As the terms “ modification” or “ change” are used in them they shall mean a Revision to the Contract.

During the progress of the work, if subsurface or latent physical conditions are encountered at the Project Site differing materially from those indicated in the Contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the Contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed. Upon written notification, the Engineer will investigate the conditions, and if it is determined that the conditio ns materially differ and cause an increase or decrease in the cost and/or time required for the performance of any work under the Contract, an adjustment, excluding anticipated profits, will be made and the Contract modified in writing accordingly. The Engineer will notify the Contractor of the determination as to whether or not an adjustment of the Contract is warranted. No Contract adjustment which results in a benefit to the Contractor will be allowed unless the Contractor has provided the required written notice. No Contract adjustment will be allowed under this clause for any effects caused on unchanged work.

The Engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the Project. Such changes in quantities and alterations shall not inv alidate the Contract nor release the surety, and the Contractor agrees to perform the work as altered. If the alterations or changes in quantities significantly change the character of the work under the Contract, whether such alterations or changes are in themselves significant changes to the ch aracter of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the Contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the Engineer may determine to be fair and equitable.