SECTION 108 – PROSECUTION AND COMPLETION
108.01 Subcontracting
Do not discriminate on the grounds of race, creed, color, national origin, age, ancestry, nationality, marital/domestic partnership/civil union status, gender, disability, religion, affectional or sexual orientation, gender identity or expression, family status, atypical cellular or blood trait, genetic information, military service, or veterans status, in the selection and retention of subcontractors, including procurement of materials and leases of equipment. In all solicitations, either by competitive bidding, or negotiation made by the Contrac tor for work to be performed under a subcontract, including procurement of materials, leases of equipment, or professional services, each potential subcontractor or firm will be notified by the Contractor of the Contractor’s obligations under this Contract and the Acts and Regulations relative to Nondiscrimination. The Department will not permit subcontracting without Department approval. The Contractor is responsible for the work performed by subcontractors. Ensure that no work is performed by a subcontractor before receiving written approval for each subcontractor from the Department. Ensure that DBEs/ESBEs have an equal opportunity to receive and participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds in performing work with the Department. Ensure that SBEs have an equal opportunity to receive and participate in the performance of contracts financed in whole with State funds in performing work with the Department. Utilize the specific DBEs, ESBEs, or SBEs listed to perform work and supply materials for which each is listed unless the written consent of DRR/AA is provided. Ensure that work reserved for a subcontractor designated as a DBE, ESBE, or SBE, is not performed by any o ther firm, including the Contractor’s own organization. Submit requests for approval to subcontract on Department forms to the Department at least 20 days before the anticipated start of the work with the following:
1.A certified copy of the executed subcontract agreement between the Contractor and the subcontractor.
2.Proof of the subcontractor’s valid business registration with the Department of Treasury, Division of Revenue according to N.J.S.A. 52:32-44.
3.Proof of the subcontractor’s valid Public Works Contractor Registration with the Department of Labor, Division of Wage and Hour Compliance according to N.J.S.A. 34:11-56.18. Make available on request, a copy of all DBE, ESBE, and SBE subcontracts. Ensure that all subcontracts or agreements with DBEs or ESBEs to supply labor or materials require that the subcontract and all lower tier subcontractors be performed in accordance with 49 CFR 26.53. On Federal Aid Projects, the Contractor shall not terminate a DBE subcontractor, lower t ier DBE subcontractor, DBE transaction expeditor, DBE regular dealer, DBE supplier, DBE manufacturer and DBE trucker or an approved substitute DBE firm without good cause as listed in 49 CFR 26.53(f)(1)(ii)(3), and prior written consent of DCR/AA. Prior t o replacement of the DBE or ESBE firm, the Contractor shall in writing, notify the DBE or ESBE firm and the DCR/AA of its intent to request to terminate and/or substitute a DBE or ESBE firm, the reason for the request, and that the DBE/ESBE has 5 days to r espond to the Contractor’s notice and advise the DCR/AA and the Contractor of reasons why, if any, it objects to the proposed termination of its subcontract and why the Department should not approve the Contractor’s action. Give the DBE or ESBE 5 days to respond to the Contractor’s notice and advise the DCR/AA and the Contractor of reasons why, if any, it objects to the proposed termination of its subcontract and why the Department should not approve the Contractor’s action. If required in a particular case as a matter of public necessity (e.g., safety), the DCR/AA may provide a response period shorter than five days. At the time the Contractor requests termination or replacement of a DBE or ESBE firm, the Contractor must submit to the DCR/AA, documented evidence of its good faith efforts in accordance with 49 CFR Part 26.53 if they are replacing the terminated DBE or ESBE with a non-DBE or non-ESBE firm. The DCR/AA must approve the termination and substitution of all DBE or ESBE subcontractors, lower tie r subcontractors, transaction expeditors, regular dealers, suppliers, manufacturers and truckers. The Contractor needs to show they began good faith efforts to replace or substitute with another DBE or ESBE well in advance of the request to terminate or s ubstitute. The Department’s DCR/AA has sole authority to approve the termination, replacement or substitution of DBE and ESBE subcontractors, lower tier subcontractors, transaction expeditors, regular dealers, suppliers, manufacturers and truckers. On wholly State Funded Projects, the Contractor shall not terminate a SBE subcontractor, lower tier SBE subcontractor, SBE transaction expeditor, SBE regular dealer, SBE manufacturer and SBE trucker, or an approved substitute SBE firm, without good cause and prior written consent of DCR/AA. Prior to replacement of the SBE firm, the Contractor shall in writing, notify the SBE firm and the DCR/AA of its intent to request to terminate and/or substitute a SBE firm, the reason for the request , and that the SBE has 5 days to respond to the Contractor’s notice and advise the DCR/AA and the Contractor of reasons why, if any, it objects to the proposed termination of its subcontract and why the Department should not approve the Contractor’s action. Give the SBE 5 days to respond to the Contractor’s notice and advise the Department and the Contractor of reasons why, if any, it objects to the proposed termination of its subcontract and why the Department should not approve the Contractor’s action. If required in a particul ar case as a matter of public necessity (e.g., safety), the DCR/AA may provide a response period shorter than 5 days. At the time the Contractor requests termination or replacement of a SBE firm, the Contractor must submit to the DCR/AA, documented evidence of its good faith efforts if they are replacing the terminated SBE firm with a non -SBE firm. The DCR/AA must approve the termination and substitution of all SBE subcontractors, lower tier subcontractors, transaction expeditors, regular dealers, supplie rs, manufacturers and truckers. The Contractor needs to show they began good faith efforts to replace with another SBE well in advance of the request to terminate or substitute. The Department’s DCR/AA has sole authority to approve the termination, replacement or substitution of SBE subcontractors, lower tier subcontractors, transaction expeditors, regular dealers, suppliers, manufacturers and truckers. If requesting approval for a third tier subcontract, submit a letter from the subcontractor permitting subcontracting to a third tier, and submit the request for approval to subcontract, completed by the second tier subcontractor. Ensure that no work is performed by a third tier subcontractor before receiving written approval from the Department. The Department will allow the Contractor to subcontract work as follows:
1.Values and Quantities. The total value of the work subcontracted may not exceed 50 percent of the Total Contract Price, except as follows:
a.The Contractor may deduct the value of work for Items designated as Specialty Items as specified in the Special Provisions from the value of the Total Contract Price.
b.The Contractor may deduct the value of work subcontracted to certified DBE, ESBE, and SBE firms indicated on the original DBE/ESBE/SBE Form A approved by the Department from the value of work subcontracted. The total value of the work subcontracted may not exceed 70 percent of the Total Contract Price less the value of Specialty Items as noted above. If a partial quantity of work for a unit price Item is subcontracted, the Department will determine the value of the work subcontracted by multiplying the price of the Item by the quantity of units to be performed by the subcontractor. If only a portion of work of an Item is subcontracted, the Department will determine the value of work subcontracted based on the value of the work subcontracted as indicated in the subcontract agreement and as shown in a breakdown of cost submitted by the Contractor. If a portion of a lump sum Item, an Item that includes specialty work, or a sign support structure is subcontracted, the Department will determine the value of work subcontracted based on the value of the work subcontracted as indicated in the subcontract agreement and as shown in a breakdown of cost submitted by the Contractor.
2.Limits and Restrictions. The Department will permit subcontracting of work with the following restrictions:
a.The Contractor is barred from subcontracting MOBILIZATION.
b.The Contractor may only subcontract electrical, blasting, asbestos removal, landscaping, and lead paint abatement work to subcontractors having the required certificates and licenses. Submit copies of required certificates and licenses with the request for approval to subcontract.
c.The Contractor is barred from subcontracting to firms and individuals suspended or debarred by the Department or included in the Sta te of New Jersey Consolidated Debarment Report maintained by the Department of the Treasury, Division of Building and Construction, Bureau of Contractor Prequalification. The Contractor must certify that neither the individual, partnership, corporation, joint venture, or limited liability corporation applying to do subcontract work nor any of its corporate officers, stockholders, partners, or members are collectively or individually suspended, debarred, proposed for debarment, disqualified, declared ineligible, or voluntarily excluded from doing business by this or any other State or sub-division thereof or listed in the Federal Government’s System for Award Management (SAM), located at: https://sam.gov/content/exclusions.
d.Subcontractors are barred from making claims against the Department, its agents, officers, or employees.
3.Subcontract Requirements. Ensure that subcontract agreements include the following Contract provisions:
a.Federal Aid Projects. When subcontracting work on a Federal Aid Project, physically incorporate the following in the subcontract agreement, and inform subcontractors of their requirement to physically incorporate the information in lower tier subcontract agreements.
1.Disadvantaged Business Enterprise Utilization (Federal Aid Project Attachment 1), or Emerging Small Business Enterprise Utilization (Federal Aid Project Attachment 1).
2.Specific Equal Employment Opportunity Responsibilities on NJDOT Federal Aid Projects (Federal Aid Project Attachment 2).
3.Requirements for Affirmative Action to Ensure Equal Employment Opportunity on NJDOT Federal Aid Projects (Federal Aid Project Attachment 3).
4.Federal Equal Employment Opportunity Contract Specifications for NJDOT Federal Aid Projects (Federal Aid Project Attachment 4).
5.State of New Jersey Mandatory Equal Employment Opportunity Language on NJDOT Federal Aid Projects (Federal Aid Project Attachment 5).
6.Investigating, Reporting, and Resolving Employment Discrimination and Sexual Harassment Complaints on NJDOT Federal Aid Projects (Federal Aid Project Attachment 6).
7.Payroll Requirements for NJDOT Federal Aid Projects (Federal Aid Project Attachment 7).
8.FHWA-1273 Required Contract Provisions, Federal Aid Construction Contr acts as amended or supplemented (Federal Aid Project Attachment 8).
9.State Mandatory Addendum to FHWA-1273 Required Contra ct Provisions, Federal Aid Construction Contracts as Amended or Supplemented (Federal Aid Project Attachment 9).
10.Federal Mandatory Equal Opportunity Language on Federal Aid Projects (Federal Aid Project Attachment 10).
11.Byrd Anti-Lobbying Certification (Federal Aid Project Attachment 11).
12.The Standard Title VI Assurance found in Subsection 107.02, as amended or supplemented.
13.General Wage Determinations Issued Under the Davis-Bacon and Related Acts.
14.New Jersey Department of Labor Prevailing Wage Rate Determination.
15.New Jersey Department of Transportation Code of Ethics for Vendors.
16.Subsection 107.04 as amended or supplemented.
17.Subsection 106.10 as amended or supplemented.
18.The Contract Assurance found in Subsection 107.03, as amended or supplemented.
b.Wholly State Funded Projects. When subcontracting work on a wholly State Funded Project, physically incorporate the following in the subcontract agreement, and inform subcontractors of their requirement to physically incorporate the information in lower tier subcontract agreements.
1.Small Business Enterprise Utilization on Wholly State Funded Projects (State Funded Project Attachment 1).
2.State of New Jersey Equal Employment Oppo rtunity Special Provisions for W holly State Funded Projects (State Funded Project Attachment 2).
3.Requirements for Affirmative Action to Ensure E qual Employment Opportunity on W holly State Funded Projects (State Funded Project Attachment 3)
4.Investigating, Reporting and Resolving Employment Discrimination and Sexual Harassment Complaints on Wholly State Funded Projects (State Funded Project Attachment 4)
5.Payroll Requirements for Wholly State Funded Projects (State Funded Project Attachment 5).
6.Americans with Disabilities Act Requirements for Wholly State Funded Projects (State Funded Project Attachment 6).
7.New Jersey Department of Labor Prevailing Wage Rate Determination.
8.New Jersey Department of Transportation Code of Ethics for Vendors.
9.Subsection 107.04 as amended or supplemented.
10.The Standard Title VI Assurance found in Subsection 107.02, as amended or supplemented.
108.02 Commencement of Work
Within 15 days from the date of the execution of the Contract and before beginning construction operations, submit to the RE the following:
1.Insurance certificates as specified in 107.11.02.A.
2.The designated superintendent, environmental manager, TCC, and safety officer contact information.
3.Safety program as specified in 108.05.02.
4.Progress schedule as specified in 153.03. Provide written notice to the contact provided in 101.04.2 of the date when construction operations will begin. Provide the notice at least 21 days in advance of starting construction operations. Do not begin construction operations before the date provided. Do not perform CONSTRUCTION LAYOUT and FIELD OFFICE TYPE ___ SET UP until the Department has approved the insurance certificates and the s afety program. Do not begin other construction operations until after the following actions:
1.A preconstruction conference with the Department has been held.
2.Approval of the progress schedule as specified in 153.03.02.
3.The field office has been established.
4.The ROW limits, limits of construction, e nvironmentally restricted areas, and trees or other vegetation designated to be preserved have been laid out. When a Request for Authorization Form for the New Jersey Pollutant Discharge Elimination System 5G3 – Construction Activity Stormwater General Permit (NJG0088323) is specified as a Contract requirement, do not perform land disturbance activity, including clearing, grading, or excavation, until 35 days after submission of the Request for Authorization Form to the Department as specified in 103.04. Begin construction operations within 25 days of the date the Contract is executed by the Department. For contracts with a completion date as specified in 108.10, the Contract start date is the 25th day after execution of the Contract. For Working Day contracts, the Contract start date is the earlier of: the 25th day after execution of the Contract or the first day that the Contractor begins construction operations. If the Contractor begins Work before the execution of the Contract, the Work is at the Contractor’s own risk and as a volunteer. In the event the Department decides not to execute the Contract, the Contractor shall at its expense perform whatever work is necessary to leave the Project Limits in an approved condition. If any work performed before the Department’s decision not to execute the Contract affects any existing road or highway, the Contractor shall at its expense restore it to its former condition or the equivalent thereof, as approved. However, all work done according to the Contract before its execution by the Department will, if the Department executes the Contract, be considered authorized work and the Department will make payment for this work as provided in the Contract. The Contractor is not entitled to payment or an extension of Contract Time for any delay, hindrance, or interference before the first day of Contract Time following execution of the Contract by the Department.
108.03 Daily Communications
By 9:00 a.m. every Friday, submit a written proposed work schedule for the following week (Monday through Sunday). Include at a minimum the following:
1.Items to be performed.
2.Location of the Item to be performed.
3.Hours to be worked. Confirm with the RE the proposed work schedule before beginning each day’s operation. Do not perform any work operation without providing notice to the RE. If weather restricts the controlling activity on the critical path, provide written notice identifying the date of occurrence and activities restricted to the RE. Provide the RE with written notice 72 hours in advance of changes in work shifts, and before restarting work after shutdowns of more than 72 hours.
108.04 Work Site and Storage
With the approval of the RE, the Contractor may use areas within the Project Limits for storage. With the approval of the Department, the Contractor may use portions of ROW outside of the Project Limits for storage and for work. Store and handle materials to maintain their conformance with the Contract. Comply with manufacturers’, suppliers’, and fabricators’ storing and handling recommendations. Do not store flammable or explosive materials near bridge structures. The Department will not allow the decks of bridges or the area under bridges, including the slopes, to be used as work sites or storage areas. Do not store equipment or material within 30 feet of the traveled way unless protected by construction barrier. If construction barrier is requested to protect a work site or storage area, submit a plan detailing the proposed installation, including required impact attenuators, to the RE for approval. The Department will not make payment for traffic control devices placed to protect a work site or storage area. Restore storage areas and work sites to their original condition or restore as directed by the RE. In areas that are used for the storage of materials, temporary driveways, contractor’s yards, etc., scarify the subsoil 12 inches deep. Smooth to grade prior to topsoil spreading, fertilizing, and seeding and planting. Use wide track or wide tire equipment to minimize compaction of mixed scarified soil. Replace plant materials that may have been removed or damaged. If the Contractor is in default, as specified in 108.14, the Department has the right to take over and occupy leased or rented areas used for work sites and storage, or cause it to be occupied, for the purpose of completing the Project. If the procured space is leased, the lease shall contain a provision that in the event that the Contractor is in default, the lease may be assigned to the Department or its nominee.
108.05 Sanitary and Safety Provisions
108.05.01 Sanitary
Provide sanitary facilities that comply with the requirements of the Federal, State, and local health departments for the use of anyone authorized to b e within the Project Limits. Ensure that the sanitary facilitie s are in compliance with 29 CFR 1926.51(c). Provide separate sanitary facilities for male and female employees clearly marked MEN and WOMEN. Ensure that the maximum distance between same gender sanitary facilities is not more than one-half mile and the maximum distance between sanitary facilities and workers is not more than one -half mile. Provide the number of facilities at each facility site as specified in Table 108.05.01-1. Table 108.05.01-1 Number of Facilities Number of Male Employees Minimum No. of Facilities for Male Use Number of Female Employees Minimum No. of Facilities for Female Use 1 – 15 1 1 – 15 1 16 – 35 2 16 – 35 2 36 – 55 3 36 – 55 3 56 – 80 4 56 – 80 4 81 – 110 5 81 – 110 5 111 – 150 6 111 – 150 6 Over 150 61 Over 150 61
1.Provide one additional facility for each additional 40 employees of each sex. From October through April, clean and sanitize sanitary facilities at least once per week. From May through September, clean and sanitize sanitary facilities at least twice per week.
108.05.02 Safety Program
Observe all rules and regulations of the Federal, State, and local health officials, including regulations concerning construction safety and health standards. At the preconstruction meeting, submit a hard copy of a written safety program that meets or exceeds the minimum requirements of the Contract and applicable State or Federal regulations to the RE for approval. Include at a minimum the following:
1.Description. Describe in detail how the safety program is implemented and monitored. Provide guidelines for protecting personnel from hazards associated with Project operations and activities. Establish the policies and procedures for safety practices that are necessary for the Work to be in compliance with the requirements of OSHA and other State and Federal regulatory agencies with jurisdiction, rules, regulations, standards, or guidelines in effect at the time the Work is in progress.
2.Certification, Responsibility, and Identification of Personnel. Identify the qualified safety professional responsible for developing the safety program and provide that person’s qualifications for developing the safety program including, but not be limited to, educatio n, training, certifications, and experience in developing this type of safety program. Provide a certification, executed by the qualified safety professional that developed the safety program, stating that the safety program complies with the rules, regulations, standards, and guidelines in effect at the time the Work is in progress, of OSHA, and other applicable Federal, State, and local regulatory agencies having jurisdiction. Identify a safety officer and designate the on-site supervisory-level personnel responsible for implementing and monitoring the safety program until Acceptance and having the authority to take prompt corrective measures to eliminate hazards, including the authority to stop work. Include documentation of training provided to the on-site supervisory-level personnel. For work that requires a competent person as defined by OSHA, ensure that the person is capable of identifying existing and predictable hazards and has the authority to take prompt corrective measures to eliminate the hazards, including the authority to stop work. Include documentation of the qualifications of such competent persons identified, including certifications received.
3.Elements of the Program. Include information and procedures for the following elements:
a.Chain of Command. Include the responsibilities of the management, supervisor, safety officer, and employees.
b.Traffic Control Coordinator. Include the name and contact information. Ensure that the traffic control coordinator meets the requirements specified in 159.03.01.
c.Environmental Manager. Include the name and contact inf ormation. Ensure that the environmental manager meets the requirements specified in 158.03.01.
d.Local Emergency Telephone Numbers. Include police , fire, medical, and, NJDEP hot line 1-877-WARN DEP (1-877-927-6337).
e.Procedures for Handling Emergencies. Provide guidelines for handling emergencies, including emergency action plans for accidents involving death or serious injury, property damage, fires, explosions, and severe weather. Include the emergency contact information of the Contractor’s personnel responsible for handling emergencies.
f.Training Topics. Include regulatory and jobsite toolbox meetings. Include the documentation from the training and an attendance sheet for each.
g.Contractor’s Safety Rules. Include housekeeping procedures and personal protective equipment requirements.
h.Employee Disciplinary Policy. Include the violation forms.
i.Safety Checklists. Include project safety-planning, emergency plans and procedures, documentation, and protective materials and equipment.
j.Forms. Include OSHA 300 Log and New Jersey Department of Labor L&I-1.
k.Security Policy Guidelines. Provide a copy for the office and for the Project Limits.
l.Hazard Communication Program. Provide the following:
1.The location of and instructions for understanding the MSDS. Ensure that the location and instruction are available to anyone within the Project Limits.
2.The person responsible for the hazard communication program and the method of informing personnel of the hazardous communication program. Include attendance sheets of hazard communication meetings.
3.When performing work that generates airborne crystalline silica, include engineering and work practice controls to limit exposure levels to at or below the permissible exposure limit according to 29 CFR 1910.1000 Table Z-3. Ensure that the program includes employee training and respiratory protection measures according to 29 CFR 1910.134 and control of the area when the permissibl e exposure limit is exceeded. Provide a trained and competent person, according to 29 CFR 1926.30, within the Project Limits at all times when performing work that produces airborne crystalline silica.
m.Additional Requirements. Provide additional procedures for Project specific topics including:
1.Compressed gas cylinders.
2.Confined spaces.
3.Cranes.
4.Electrical.
5.Equipment operators.
6.Fall protection.
7.Hand and power tools.
8.Hearing conservation.
9.Highway safety.
10.Lead.
11.Lock out/tag out.
12.Materials handling, storage, use, and disposal.
13.Night work.
14.Personal protective equipment.
15.Project entry and exit.
16.Respiratory protection.
17.Sanitation.
18.Signs, signals, and barricades.
19.Subcontractors.
20.Trenching. Within 15 days of receiving the safety program, the Department will determine if the safety program meets the requirements of the Contract. If the safety program does not meet the requirements, the Department will return the safety program for revision. Do not begin work within the Project Limits until the Department has approved the safety program. The Contractor is responsible for implementing, monitoring, updating, and revising the safety program until Acceptance. Submit updates and revisions to the safety program to the RE for approval when new information, new practices or procedures, or changing site and environmental conditions necessitate modifications to protect site personnel. Maintain a copy of the updated safety program, including the appropriate documentation associated with each element, within the Project Limits so that it is available to workers and other authorized persons entering the Project Limits. Provide copies of updates to the safety program to the RE. If an incident occ urs that requires a New Jersey Department of Labor Form (L&I-1) to be submitted, send a copy to the Office of Capital Project Safety, New Jersey Department of Transportation, 1035 Parkway Avenue,
P.O. Box 600, Trenton, NJ 08625-0600.
108.06 Night Operations
Night operations comprises work performed from 30 minutes before sunset to 30 minutes after sunrise. At least 24 hours before beginning night operations, demonstrate to the RE the method of meeting the specified illumin ance levels and visibility requirements for workers and equipment for each planned operation. The Department will determine illuminance levels by taking light meter readings horizontally to the road surface facing the light source. Do not begin night operations until the RE approves the method of meeting the specified illuminance levels and visibility requirements.
1.Lighting Requirements and Illuminance Levels. Maintain the minimum illuminance level throughout the required lighting area as specified in Table 108.06-1. Provide lighting for all areas of the Work. Table 108.06-1 Minimum Illuminance Levels for Night Operations Work Description Minimum Level (Foot-Candles) Minimum Lighting Area Embankment Excavation Landscaping (seeding and sodding) Mechanical sweeping and cleaning Subgrade 5 General lighting throughout area of operation Traffic Control setup and removal (excluding barrier curb) 5 Lighting on task Traffic Director 5 Lighting on task plus minimum of 50 feet ahead and 50 feet behind employee Milling1 HMA paving operation1 HMA roller operation1 Lighting on task and around equipment plus minimum of 25 feet ahead and 25 feet behind equipment plus 10 feet to each side of equipment Crack Sealing Sawcutting and Sealing Joints Electrical work Intelligent Transportation System work 20 Lighting on task All work not listed in this table1 10 Lighting on task
1.Provide 5 foot-candles for the indicated lighting area outside the limits for 10 foot-candles to a minimum of 100 feet ahead and 100 feet behind equipment Ensure that lighting equipment is in good operating condition, and in compliance with applicable NEC and NEMA codes. Use freestanding portable or trailer-mounted towers capable of being moved as needed to keep pace with construction operations. For moving operations, ensure that lighting and illuminance requirements are maintained where the work is in progress and that lighting keeps pace with the operation. Provide sufficient fuel, spare lamps, generators, and qualified personnel to ensure that required illuminance levels are maintained continuo usly during night operations. If at any time minimum illuminance levels are not met, cease night operations until the required illuminance levels are attained.
2.Visibility Requirements for Workers and Equipment. Ensure that workers wear a 360 degree high-visibility retroreflective safety garment meeting ANSI/ISEA Class 3, Level 2 standards. Uniformly light the hopper, auger, and screed areas of pavers as well as the operator’s controls on all machines. Conventional vehicle headlights do not meet illuminance requirements. Ensure that moving lighting equipment used for night operations has lights directed ahead and behind the equipment. Equip moving equipment with 2 inch wide, alternating red and white, conspicuity tape meeting the National Highway Transportation Safety Administration standards. Equip off -road equipment with conspicuity tape along the full length of all 4 sides. Equip on-road vehicles, including trailers and trailer-mounted devices, with conspicuity tape along the full length of both sides, excluding the cab, and across the rear of the vehicle. Prevent or minimize glare that may interfere with traffic or disturb lo cal residents. Perform glare control to the RE’s satisfaction. Glare control may require relocating, aiming, or adjusting lights or providing screens, shields, visors or louvers on lights.
108.07 Traffic Control
108.07.01 Interference
Do not occupy a lane, shoulder, median, or sidewalk area adjacent to traffic with equipment, material, personnel, or employee vehicles without the RE’s approval. Schedule and perform the Work so that successive construction operations and lane or roadway openings follow preceding operations as closely as possible. Limit work zones according to the Special Provisions. Confine construction operations adjacent to traffic to one side of the roadway at a time unless otherwise specified by t he Contract. Where the Work is performed in stages adjacent to traffic, ensure that the road opened to traffic adequately accommodates traffic. Do not interfere with existing traffic access, except when required to perform the Work or as approved by the RE. Do not work above vehicular or pedestrian traffic, except as specified in the Contract. Where construction interferes with existing pedestrian access, provide temporary pedestrian access as directed by the RE. Where necessary, install and maintain temporary sidewalks and curb ramps. Remove temporary access measures when no longer required. Provide temporary approaches to maintain traffic access to private and public property as directed by the RE. When the work interferes with property owners’ normal passage, provide written notice to the RE and the property owners at least 3 days before beginning work. The RE has the right to reject or rescind approval of lane or shoulder closures because of the following:
1.Weather conditions.
2.The closure is unnecessary to perform the work.
3.Emergency conditions either on or off the Project that result in an unacceptable impact to the traveling public. The Department will only make payment for delays or costs arising from the RE’s rejecting or rescinding of la ne or shoulder closure resulting from emergency conditions. If the Work is stopped for more than 7 days or if the Work is suspended, restore excavated areas within or adjacent to the traveled way as directed by the RE.
108.07.02 Changes to the Traffic Control Plan (TCP)
Submit requests for changes to the TCP to the RE for approval. Include a written description of the requested TCP change and detailed plan sheets signed a nd sealed by a Professional Engineer. When proposing detours, include a copy of the signed agreement with the local government authority having jurisdiction. The signed agreement shall document the local government authority’s approval of the proposed de tour and indicate that the Contractor is solely responsible for the maintenance and restoration of the roadway. The Department will not make payment for furnishing, installing, or maintaining additional traffic control devices. Remove traffic control devices when no longer required. If detours were used, restore the roadway to its original condition or as required by the agreement with the local government. The Department will not make payment for costs to restore the roadway.
108.08 Occupancy Charges
The closure schedule shown in the plans indicates the time periods for allowable closures as specified in the Contract. Allowable closures are permitted for, but not limited to; roadways, lanes, shoulders and ramps. If the Contractor’s closures exceed these time periods, the Department will deduct from the monthly estimate a n occupancy charge for the use and occupancy beyond the time periods shown in the closure schedule until such time that the closure is reopened to traffic or until such time that the closure is allowed to take place again under the closure schedule. The Department will recover the cost of occupancy charges as specified in 107.16. The RE wi ll keep record of each occurrence as well as the cumulative amount of time that a closure exceeds the time periods shown in the closure schedule and provide the record to the Contractor. The Department will calculate an occupancy charge by multiplying the length of time of each delayed opening, in minutes, by the rate of $10 per minute , unless otherwise specified in the Special Provisions. The total amount per day for occupancy charges that the Department will collect will not exceed $10,000.00. The Department will waive an occupancy charge where a closure is not reopened to traffic as specified in the closure schedule directly and solely by reason of extraordinary, exigent circumstances not under the control of or reasonably foreseeable by the Contra ctor. Equipment breakdowns, supplier deliveries, and weather related hindrances are not extraordinary, exigent circumstances. However, the Department has the right to assess an occupancy charge for any period of time that a closure remains closed beyond the reasonable period of time needed by the Contractor to reopen a closure due to an extraordinary, exigent circumstance.
108.09 Maintenance Within The Project Limits
Continuously perform maintenance requirements within the Project Limits until Acceptance. The Project Limits to be maintained include the limits of all temporary and permanent construction, excluding those sections of highways, streets, and roads where only signs are placed. Maintenance includes but is not limited to the following:
1.Picking up and disposing of trash and debris , including trash and debris not generated by the Contractor. However, the Contractor is not responsible for the disposal of dead animals.
2.Keeping the roadway clear of dust, soil, and cleaning up non-hazardous spills.
3.Maintaining a safe and unobstructed passageway through the construction area for public traffic, including but not limited to constructing escape ramps at the edges of pavement.
4.Maintaining surface drainage, including the removal of debris, ice, and snow around inlets, to ensure that it is functioning as intended. 5 Removal of ice and snow from bridge sidewalks open to pedestrian access. If the Work requires the Contractor to modify ex isting electrical systems including highway lighting and traffic signal systems, perform maintenance of the electrical system within the Project Limits and perform such maintenance beyond the Project Limits to the extent such systems reasonably support service within the Project Limits. If the Work requires the Contractor to modify existing Intelligent Transportation Systems (ITS), perform maintenance of the ITS within the Project Limits and perform such maintenance beyond the Project Limits to the extent s uch systems reasonably support service with the Project Limits. The Contractor is not responsible for removal of ice and snow from sections of the roadway opened to traffic. The Contractor is not responsible for the repair of existing facilities, including guide rail, signs, crash cushions, and structures that are damaged by a public traffic accident or otherwise in a state of disrepair. The Contractor is not responsible for the replacement of existing pavement markings. If the Contractor at any time fails to fully perform maintenance, the RE will immediately notify the Contractor of the noncompliance, and direct a time by which the Contractor must perform the maintenance. If the Contractor fails to remediate unsatisfactory maintenance within the time directed by the RE after receipt of such notice, the Department has the right to proceed to maintain the Project and recover costs incurred for this maintenance from the Contractor.
108.10 Contract Time
Time is of the essence as to all time frames stated in the Contract. Complete the work required for Interim Completion and Completion requirement as specified in the Special Provisions. When Contract Time is specified in working days, the RE will provide the Contractor with a weekly statement showing the number of days charged to the Contract for the preceding week and the number of days of Contract Time remaining. If the Contractor has dismissed its crew due to unfavorable conditions that affect the controlling operations on a day where the contractor was prepared to begin work at the regular starting time of a scheduled shift, the Department will not charge a Working Day to the Contract.
108.11 Modifications To Contract Time
108.11.01 Extensions to Contract Time
A.Qualifications for Extensions. The Department will only extend Contract Time if an excusable delay, as specified in 108.11.01.B.2 or 108.11.01.B.3, delays work on the critical path beyond the Contract Time as specified in 108.10 using the approved progress schedule that is current at the time the delay occurred. The Department will not extend Contract Time due to Extra Work or other type of delay unless an approved progress schedule and updates are current as specified in 153.03. The Department will not make payment for delay damages, as specified in 104.03.09, unless an approved progress schedule and updates are current as specified in 153.03. The Department will not extend Contract Time for failure of the RE to furnish interpretations of the Contract unless such request for an interpretation of the Contract is reasonable and made in good faith, and was provided more than 5 days after the writte n request was received by the RE and the failure to respond within this 5 day period was unwarranted. The Department will not extend Contract Time for a delay that was or should have been anticipated by the Contractor at the time the Contract was awarded.
B.Types of Delays. The Department recognizes the following types of delays:
1.Non-Excusable Delays. Non-excusable delays are delays that are the Contractor’s fault or responsibility. The Department will not extend Contract Time or make payment for delay costs incurred due to non -excusable delays. For work performed by Utilities, delays up to 30 percent of the estimated duration specified in 105.07.02 are considered non-excusable. The duration includes both the advance notice and the com pletion of the work by the Utility. For delays caused by Railroads, delays up to 30 percent of the estimated availability specified in 105.07 are considered non-excusable.
2.Excusable, Non -Compensable Delays. Excusable, non -compensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility. The Department will extend Contract Time but will not make payment for the delay costs incurred by the Contractor for the following excusable, non-compensable delays:
a.Others. Delays caused by work done by Others, excluding the Department.
b.Utilities. Delays caused by Utilities, excluding the Department, when the actual duration to complete the utility work is more than 30 percent greater than the estimat ed duration specified in 105.07.02. The duration includes both the advance notice and the completion of the work by the Utility. For delays caused by Railroads, when the availability to access is reduced by more than 30 percent greater than the estimated availability specified in 105.07.
c.Extreme Weather. The Department will only extend Contract Time for weather if the Contractor cannot perform work on the controlling activity on the critical path due to weather and the cumulative delay due to weather each month exceeds the number of days specified in Table 108.11.01-1. The work on the controlling activity on the critical path is considered delayed if the Contractor is prevented from proceeding on such activity for at least 60 percent of the total daily time planned fo r the activity for all shifts scheduled for that day. Submit daily documentation, as specified in 108.03, for activities that are delayed by weather. Table 108.11.01-1 Anticipated Number of Days Lost per Month for Weather Sensitive Activities Month Number of Days Lost January 311 February 281,2 March 20 April 15 May 10 June 10 July 10 August 10 September 10 October 15 November 15 December 20
1.For concrete placements Items, as specified in Division 500, other than approach slabs, the number of days restricted is 20 days.
2.For leap years, the number of days restricted is 29.
d.Cataclysmic Natural Phenomena. Delays caused by lightning strikes, wild fires, floods, tidal waves, earthquakes, tornadoes, hurricanes, or other cataclysmic phenomena.
e.Sovereign Acts of the State. Delays caused by the State in its sovereign capacity, including but not limited to epidemic or quarantine restrictions, states of emergency, and State shutdowns.
f.War and Unrest. Delays due to war or civil disturbances.
g.Labor Disputes. Delays due to strikes or labor disputes beyond the control of the Contractor.
h.Shortage of Materials. Extraordinary delays in material deliveries that the Contractor or suppliers cannot foresee or forestall resulting from freight embargos, government acts, or ar ea wide material shortages. Shortage of materials applies only to raw and fabricated materials, articles, parts, or equipment that are standard and does not apply to materials, parts, articles, or equipment that are processed, made, constructed, fabricate d, or manufactured to meet the specific requirements of the Contract. The Department will only consider the physical unavailability of the material as constituting a shortage, and shall not consider cost factors as constituting a shortage. Provide documented proof to the RE that every effort to obtain the materials from all known sources within a reasonable distance from the Project Limits was made. Also provide proof to the RE that the inability to obtain such materials when originally planned, could not be remedied by revising the sequence of the construction operations. If approved excusable, non-compensable delays exceed a total of 180 days, the time in excess of 180 days will become excusable and compensable as specified in 108.11.01.B.3.
3.Excusable, Compensable Delays. Excusable, compensable delays are delays that are the Department’s fault or responsibility. For excusable, compensable delays, the Department will grant an extension of Contract Time and will make payment for delay damages as specified in 104.03.09.
4.Concurrent Delays. Concurrent delays are separate delays on the critical path that occur at the same time. When an excusable, non -compensable delay is concurrent with an excusable, compen sable delay, the Department will grant an extension of Contract Time but will not make payment for delay damages as specified in 104.03.09. When a non-excusable delay is concurrent with an excusable delay, the Department will not grant an extension of Contract Time or make payment for delay damages.
C.Submitting Time Impact Evaluation. If an excusable delay occurs, noti fy the RE, as specified in 104.03.04, detailing how the event or cause is affecting the approved progress schedule that is current at the time the delay occurred. When the full extent of the impact on the approved progress schedule can be determined, submit a request for an extension of Contract Time to the RE with a Time Impact Evaluation F orm and a CPM fragnet diagram including all additional work, and the fragnet’s relationship to the approved progress schedule that is current at the time the delay occurred. Clearly identify how each change or delay is represented by an activity or group of activities. Ensure that the fragnet shows logic revisions, duration changes, and new activities, includ ing the predecessor and successor relationships. The Contractor is considered to have waived its rights to claim an extension of Contract Time, if the Contractor fails to provide written notice as specified in 104.03.04 or fails to provide the time impact evaluation. The RE will evaluate the time impact evaluation. The Department will only extend Contract Time when delay causes the work to be extended beyond the scheduled Contract Time as specif ied in 108.10. If the Contractor is already behind schedule and an excusable delay delays the work beyond the Contract Time as specified in 108.10, the Department will only extend Contract Time for the amount of time that directly results from the excusable delay. If the Department determines that an extension of Contract Time is warranted, the Department will extend Contract Time by a Change Order. For excusable, compensable delays, submit a request for and documentation supporting the entitlement to compensable delay damages associated with the delay as specified in and limited by 104.03.09.
108.11.02 Reductions to Contract Time
If the Work required is reduced or altered such that less time is needed to meet Contract Time, the Department has the right to reduce Contract Time by analyzing the current approved progress schedule.
108.12 Right-of-Way Restrictions
The Special Provisions will indicate ROW that has not been secured and the anticipated dates of availability. Review the ROW Plans and obtain from the RE all other information regarding ROW parcels, easements, temporary easements, and temporary access to parcels acquired for the Project as well as the nature and type of title acquired. Temporary easements and temporary access to parcels will in most cases contain a limitation as to the length of time that they are in force and effect. Schedule the Work, as specified in 153.03, to accommodate the time limitations associated with each parcel. Provide written notice to the RE at least 30 days before entering a parcel with a temporary easement or entering a parcel with temporary access. Do not enter a parcel until the RE provides written notice to the property owner. If the Contractor needs to o ccupy a temporary easement or parcel beyond the time period provided by the temporary easement or access, provide a written request to the RE at least 15 days before the time period expires. Do not enter or continue to occupy the easement or parcel unless approved by the RE.
108.13 Suspension of Work
The RE has the right to suspend the Work, wholly or in part, for such period as deemed necessary for the following:
1.Contractor Fault. Contractor fault includes but is not limited to: failure to carry out Contract requirements; having worked in reckless or unsafe manner or failure to correct unsafe conditions; or failure to carry out the directions of the RE.
2.Unsuitable Weather. Unsuitable weather is a weather condition that prevents the Contractor from performing work as specified in the Contract. The RE also has the right to suspend work for a potential weather condition.
3.Convenience of the Department. For the convenience of the Department, the RE may direct, in writing, the Contractor to suspend all or any portion of the Work for the period of time that the RE determines to be appropriate. If the RE suspends a portion of the Work, Contract requirements governing work on continuing portions of the Project remain in effect. When the RE suspends the Work or portions of the Work, the Contractor is still responsible for the following:
1.Maintaining the Project Limits as specified in 108.09.
2.Maintaining SESC measures as specified in 158.03.02.
3.Maintaining traffic control devices as specified in 159.03.
4.Protecting the work already performed, and preventing damage and deterioration.
5.Protecting stored materials.
6.Complying with additional direction by the RE to secure the Project Limits and safeguard the public. If, during suspension, the Contractor at any time fails to comply with items 1 to 6 above, the RE will immediately notify the Contractor of the noncompliance. If the Contractor fails to remediate unsatisfactory conditions within 24 hours after receipt of such notice or within the time otherwise specified, the Department has the right to remediate the unsatisfactory conditions and recover the cost of this remediation from the Contractor. Resume work when directed by the RE. Within 7 days of receiving notice to resume work , provide the RE a written request for payment for the costs and for a modification of Contract Time for the number of days sought resulting from the suspension.
108.14 Default and Termination of Contractor’S Right To Proceed
The Department will provide written notice to the Contractor and the Surety of the cause for default, and demand elimination of such cause for default, if the Contractor does any of the following:
1.Fails to begin construction operations within 40 days of execution of the Contract.
2.Fails to perform the Work with sufficient workers and equipment or with sufficient materials to ensure its completion within the Contract Time specified, or any modification thereof.
3.Fails to complete the Contract within the Contract Time specified, as modified.
4.Performs the Work unsuitably or neglects or refuses to remove materials or to again perform such Work as may be rejected as unacceptable and unsuitable.
5.Fails to follow the direction of the RE.
6.Works in a reckless or unsafe manner, or fails to correct unsafe conditions.
7.Discontinues the prosecution of the Work.
8.Fails to resume Work which has been discontinued within a reasonable time after notice to do so.
9.Becomes insolvent or is declared bankrupt, or commits any act of bankruptcy or insolvency.
10.Allows any final judgment to stand against it unsatisfied for a period of 10 days.
11.Makes an assignment for the benefit of creditors.
12.Fails to acquire or maintain the required insurance.
13.Fails to comply with Contract requirements regarding minimum wage payments, 49 CFR Part 26 et seq., the DBE program requirements, SBE program requirements, and equal employment opportunity requirements.
14.Is a party to fraud.
15.For any other cause whatsoever, fails to carry out the Work in an acceptable manner. If the Contractor or Surety, within a period of 10 days after such notice, does not proceed as specified in the notice, then the Department has full power and authority, without violating the Contract, to declare the Contractor in default and notify the Contractor to discontinue the Work. The Department will provide, in writing, the declaration of default to the Contractor and Surety. The Department has the right to appropriate any or all materials and equipment within the Project Limits to complete the Contract. The Department has the right to direct the Surety to complete the Contract or may enter into an agreement for the completion of the Contract with the S urety or a nother contractor, or use such other methods required for the completion of the Contract, including completion of the Work by the Department. If the Department directs the Surety to complete the Contract, and the Surety elects to use a completion -contractor to perform the Work, the Surety must promptly submit to the Department a request for approval of the proposed completion- contractor as a subcontractor as specified in 108.01. The Department has the right to reject a request by the Surety to use the Contractor as the completion-contractor, either directly or under the direction of a consultant to the Surety. The Contractor and Surety are not relieved of the assessment of liquidated damages, as specified in 108.20, because of the Contractor’s default. The Department will recover the costs and charges incurred by the Department, together with the cost of completing the Work from the Contractor or Surety. The rights and remedies of the Department are in addition to any other rights and remedies provided by law or under the Contract and the bonds. If, after declaration of default, the Department determines for any reason that the Contractor was not in default or that the delay was excusable, the rights and obligations of the parties are the same as if the Department had issued an order of termination for convenience as specified in 108.15.01. If, after declaration of default, a court determines for any reason that the Department’s default of the Contract was legally improper, the rights and obligations of the parties are the same as if the Department had issued an order of termination for convenience as specified in 108.15.01.
108.15 Termination of Contract
108.15.01 For Convenience
The Department has the right to, by written order, terminate the Contract for convenience. Upon receipt of an order of termination for convenience, only perform the work required in the order of termination. The Department may add work in order to secure the Project. Perform the work required in the order of termination as specified in the Contract. The Department has the right to declare the Contractor in default, as specified in 108.14, if the Contractor fails to carry out the conditions set forth in an order of termination for convenience. When the Department orders termination for convenience, the Department will make payment for the Items completed as of the date of termination at the Contract price. The Department will make p ayment for the work in the order of termination, including work that was not in the Contract.
108.15.02 For Cause
The Department has the right to, by written order, terminate the Contract for cause after determining the Contracto r has been declared in default as specified in 108.14. Upon receipt of an order of termination for cause, only perform the work required in of the order of termination. The Department may add work in order to secure the Project. Perform the work required in the order of termination as specified in the Contract. If the Contractor fails to carry out the conditions set forth in an order of termination for cause, the Department will recover the costs and charges incurred by the Department, together with the cost of completing the Work from the Contractor or Surety. The rights and remedies of the Department are in addition to any other rights and remedies provided by law or under the Contract and the bonds. When the Department orders termination for cause, the Department will make payment for the Items completed as of the date of termination at the Contract price. The Department will make payment for the work in the order of termination including work that was not in the original Contract. The Department will not make payment for profit and overhead not included in the Contract price for Items for work completed or partially completed except that the Department may make payment for profit and overhead on force account work as specified in 104.03.08. If the Department’s termination for cause is found by a court to be legally improper, the Department will rescind the termination for cause and o rder a termination for convenience. The Department will then make payment as if the termination for cause had been a termination for convenience as specified in 108.15.01.
108.16 Partial Acceptance
If the Contractor completes a portion of the Work, the Contractor may request that the RE inspect that portion. If the RE finds that the portion has been completed, as specified in t he Contract, the Department may accept that portion as being completed. If the portion is accepted, the Department may relieve the Contractor of the responsibility of maintaining that portion of the Work as specified in 108.09. The RE may reject the request made by the Contractor if the RE determines that the portion of the Project should not be subject to partial acceptance.
108.17 Interim Completion
When an Interim Completion requirement is specified, notify the RE in writing when the work for the milestone is complete. If the RE determines that the work for the milestone appears to be complete, the RE will notify the Contractor. If the RE determines that the work for the milestone has not been completed, the RE will give the Contractor the necessary instructions to correct or complete the Work to meet the Interim Completion requirement. Notify the RE upon compliance with the RE’s instructions. Repeat this procedure until the RE determines that the work for a milestone has been completed.
108.18 Substantial Completion
Notify the RE, in writing, when the Work is substantially complete. When the RE receives written notice, the Department will perform an inspection. If the inspection indicates that the Work is not substantially completed to the Department’s satisfaction, the RE will respond within 14 days and provide the Contractor the necessary instructions for completion and correction. Upon completion and correction of the Work, the Contractor shall renotify the RE that the Work is substantially complete, and the RE will perform another inspection. Repeat this procedure until the Department determines that the Work is substantially complete. The date of the Contractor’s acceptable notice is the date of Substantial Completion.
108.19 Completion and Acceptance
Notify the RE, in writing, when the Work is complete. When the RE receives written notice, the Department will perform an inspection. If the Department determines that the Work is complete, the Department will issue a Certificate of Completion. If the Department determines that the Work is not complete, the RE will respond within 30 days and provide the Contractor with the necessary instructions for completion and correction. Complete the Work and renotify the RE. Repeat this procedure until the Department issues a Certificate of Completion. The date of the Contractor’s acceptable notice is the date of Completion. The Department will notify the Contractor of the date of Acceptance. After Acceptance, the Contractor is relieved of the duty of maintaining and protecting the Project. In addition, the Contractor is relieved of its responsibility for damage to the Work that may occur after Acceptance. The Contractor, without prejudice to the terms of the Contract, is liable to the Department at any time, both before and after Acceptance, for latent defects, fraud, such gross mistakes as may amount to fraud, or actions affecting the Department’s rights under any warranty or guarantee.
108.20 Liquidated Damages
The Contractor and the Department recognize that delays to Contract Time result in damages to the Department including the effect of the delay on the use of the Project, public convenience and economic development of the State, and additional costs to the Department for engineering, inspection, and administration of the Contract. Because it is difficult or impossible to accurately estimate the damages incurred, the parties agree that if the Contractor fails to complete the Contract or portion of the Contract within the Contract Time, the Contractor shall pay the Department the liquidated damages specified in the Special Provisions. The Department will assess liquidated damages for each and every day that the Contractor has failed to complete the Work or portion of the Work within the Contract Time requirements as specified in 108.10. If the Department discovers that the work required to meet an Interim Completion requirement is unacceptable after the RE notified the Contr actor that the work appeared to be complete, the Department has the right to assess liquidated damages for the time period required to correct the unacceptable work. When the Contractor may be subjected to more than one rate of liquidate d damages established in this Section, the Department will assess liquidated damages at the higher rate.
108.21 Warranties
Enforce all subcontractors’, manufacturers’, fabricators’, and suppliers’ warranties, express or implied, respecting any work or materials, at the direction of the RE, for the benefit of the Department. Obtain the warranties that subcontractors, manufacturers, fabricators, and suppliers would give in normal commercial practice. If directed, require the warranty to be executed in writing to the Department. The RE has the right to direct the Contractor to undertake litigation to enforce a warranty.
Referenced in this section
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Source: Standard Specifications for Road and Bridge Construction, 2019 (rev. 2022-12-21) Edition. Pages 97–112 of 651. View official source ↗