SECTION 105: C O N T R O L O F W O R K 105.1 RESPONSIBILITY AND AUTHORITY OF THE DEPARTMENT 105.1.1 The Department has the authority to:
1.Administer the Contract;
2.Alter the Contract; 3. Enforce and terminate the Contract as expressly provided in other sections of the Standard Specifications;
4.Wholly or Partially Suspend the Work for cause; and, 5. Take actions as determined to be in the public’s best intere st. If the Work is suspended by the Project Manager in writing for an unreasonable time (not originally anticipated, customary, or inherent to the construct ion industry), the Contractor may submit to the Project Manager a Notice of Intent to Claim in ac cordance with Section 105.19, “Notice of Intent to Claim” which must be accompanied by a prop osed revised schedule pursuant to Section 108.3, “Schedule.” 105.1.2 Contractor Convenience The Contractor shall be wholly responsible and liable for any costs or time associated with any requests made for the Contractor’s convenience and app roved by the Department. 105.2 PLANS, WORKING DRAWINGS The Plans may be supplemented by Working Drawings as are necess ary for the Work. The Contractor shall have the sole responsibility for verifying pertinent dimensions in the field before submitting such Working Dr awings to the Project Manager. Working Drawings shall be submitted by the Contractor and Accepted by the Project Manager before beginning Work covered by the drawings. The Project Manager will review the W orking Drawings although the Project Manager’s review does not relieve the Contractor of the responsibility for the satisfactory completion of the Work or compliance with the Cont ract. The Contractor shall not alter or amend such drawings without the prior written approval of the Project Manager. The furnishing of all Working Drawings is Incidental. The Contractor’s Baseline Schedule of Work shall show the submi ttal of any Working Drawing as a milestone thirty (30) Days before the commencement of Work covered by the drawings. Unless otherwise indicated in the Contract, or appro ved by the Project Manager in writing, the Project Manager will have no longer than thirty (3 0) Days for Acceptance of the Working Drawings. If the Worki ng Drawings are not Acceptable, the Working Drawings shall be resubmitted by the Contractor and the timeframe for Acceptan c e s t a r t s o v e r . A l l t i m e required for review of Working Dr awings and other Contractor su bmittals shall be Incidental and shall not be the basis for any claim for Contract Time exte nsion or additional compensation. 105.2.1 SUBMITTALS Anything that requires approval is considered a submittal by t he Department. Any submittal required, other than the Critical Path Method or Bar Graph Schedules, shall be submitted to the Department thirty (30) Days before the Work re lated to the submittal is performed. The Project Manager will have no longer than thirty (30) Days for Acceptance of the submittal, unless otherwi se specified in the Contract. Section 105: Control of Work Page 34 105.3 COMPLIANCE WITH PLANS AND SPECIFICATIONS The Contractor shall perform the Work and provide the Materials in substantial compliance with the lines, grades , cross sections, dimensions, and material requirements as specified by the Contract. The Department's failure to discove r or reject Work or Materials not in substantial compliance with the Contract during the Work sha ll not be considered an Acceptance of the Work or Materi als, or a waiver of defects. T he Department’s failure to properly perform inspections or tests shall not relieve the Con tractor from its obligation to perform the Work and provide Materials in substantial complianc e with the Contract and shall not be considered the Department ’s Acceptance of the Work or Ma terials. If the Project Manager determines that Work or Materials are un acceptable, the Contractor shall remove, replace and correct the Work or Materi als at no additional cost to the Department. The Project Manager’s determination that the Work or Materials are unacceptable shall not form the basis of a claim for additional Contract Time or additional compensation. If Work does not comply or substantially comply with the Contra ct, the Project Manager may determine the Work is nonetheless Acceptable. If Accepted the Project Manager will, by Change Order, provide an adjustment for Work or Materials. 105.4 COORDINATION OF CONTRACT DOCUMENTS In case of a discrepancy, the Contract documents will govern in the following order of importance:
1.Addenda; 2. Required Documents for Bid Submittal;
3.Notices to Contractors;
4.Advertisement; 5. Special Provisions;
6.Plans;
7.Supplemental Specifications; 8. Standard Specifications; and,
9.Standard Drawings. Dimensions given on the Plans o r that can be calculated govern over scaled dimensions. If a Contract discrepancy is discovered after the Award of the Project, the Contractor shall, upon discovery, promptly notify in writing the Project M anager. The Contractor shall take no advantage of any discrepancy or errors or omissions in the Contract. The Project Manager will resolve the discrepancy in writing before the Cont ractor proceeds further with performance of the affected Work. 105.5 CONTRACTOR RESPONSIBILITIES The Contractor shall monitor the Work at all times, select and manage the means and methods for performing the Work. 105.5.1 Duties of Superintendent The Contractor shall have on the Project at all times during th e course of the Work, a competent and qualified Superintendent who: Section 105: Control of Work Page 35 1. Reads and understands the Contract documents; and,
2.Possesses substantial experi ence in the type of Work being p erformed. The Contractor and its Superintendent shall communicate with t he Project Manager as the Department’s contact for all matters relating to the Projec t and promptly submit all documentation or notice required by the Contract to the Project Manager. 105.6 COOPERATION WITH UTILITIES The Contractor shall comply with the Notice to Contractors rega rding Cooperation with Utilities for relocations, adjustments, and installations of ut ilities. The Contractor’s responsibility is to adequately coordinate, notify, or comply w ith the Contract and failure to do so shall not form the basis for an extension of Contract Time o r additional compensation. The Contractor shall copy the Project Manager on all communicat ions with utilities. For telephonic communications a summa ry of the communication shall be provided to the Project Manager monthly. The Contractor shall be responsible for complying with the New Mexico Excavation Law, NMSA 1978, Section 62-14-1 through -10 which provides the proce dures and requirements related to the performance o f Project excavation Work. Failure by the utility owner to relocate, adjust, or install th e utility in accordance with the Contract may result in the Project Manager issuing written dire ction to the Contractor directing that the Contractor shall relocate, adjust, or install the util ity per Section 104.2, “Extra Work.” The Contractor shall terminate operations in the immediate area of a utility conflict not identified in the Contract and encountered during the Work. Th e Contractor shall immediately provide written notice to the Project Manager of the conflict. The Contractor shall continue Work in other areas. The Project Manager shall provide written notification to the Contractor when Work may commence in the area of terminated operations. T he Contractor shall make requests for additional Contract Time or compensation per Secti on 104.3, “Differing Site Condition.” Where utility conflicts not identified in the Cont ract are present, the Contractor shall provide the Project Manage r, on a weekly basis, evidence of adequate coordination and cooperation with utilities. Neither additional Contract Time n or compensation will be provided where the Contractor fails to provide the Project Manager, on a weekly basis, evidence including a telephonic log of co mmunications concerning the Con tractor’s continued cooperation and coordination ac tivities with utilities. 105.7 COOPERATION BETWEEN CONTRACTORS The Department reserves the right at any time to Contract for a nd have performed other Work on or near the Project. When separate Contracts are let within the limits of any one Pr oject, each Contractor shall conduct the Work without int erfering or hindering the pro gress or completion of the Work being performed by other Contractors. Contractors working on t he same Project shall cooperate with each other as directed. Each Contractor involved shall assume all liability, financial or otherwise, in connection with the Contract and shall protect and hold harmless the Depar tment for all damages or claims as per Section 107.19, “Res ponsibility for Third Party C laims and Duty to Defend.” If the Contractor and one (1) or more other Contractors are una ble to agree upon the sequence of Work or other matters, the Contractor(s) shall requ est that the Project Manager Section 105: Control of Work Page 36 provide a written decision on the issue. The Project Manager w ill allow a reasonable time for all parties to respond and, after reviewing the information rec eived, will issue a decision binding on all parties within sev en (7) Days of receiving such information. 105.8 AUTHORITY AND DUTIES OF THE PROJECT MANAGER 105.8.1 Project Manager Authority The Project Manager is a designee of the Cabinet Secretary with authority commensurate with that of the Cabinet Secretary and has the fol lowing responsibilities:
1.Interpretation and administration of the Contract;
2.Immediate charge of the details of the Project;
3.Authority to reject Work and Material; 4. Authority to wholly or Partially Suspend the Work for reason s beyond the control of the Contractor or not connected to the construction of the Proj ect when the Project Manager deems such a suspension to be in the best interests of the public and the Department; and,
5.Authority to concur with the Contractor’s request to Partial ly Suspend or wholly suspend the Work. At no cost to the Department, the Project Manager may also who lly or Partially Suspend the Work for cause, including but not limited to, the Contracto r’s failure to:
a.Correct unsafe conditions; b. Comply with any term or condition of the Contract;
c.Observe and comply with any Federal or State law or regulati on;
d.Carry out directions of the Project Manager; e. Manage its personnel and Subcontractor and its personnel; or ,
f.Perform satisfactory Work. 105.8.2 Contractor Inquiries to Project Manager The Contractor shall submit all correspondence to the Project M anager. The Contractor shall submit in writing a request for information for any Proje ct issues, including but not limited to discrepancies in the Contract, to the Project Manager who wi ll resolve the issues. The determination of the Project Manager will be in writing and delivered to the Contractor’s Superintendent as soon as reasonably practicable. 105.9 DUTIES OF THE INSPECTOR 105.9.1 Inspector Authority The Department authorizes its Inspectors to:
1.Inspect the Work;
2.Inspect the preparation, fabrication or manufacture of Mater ials; and,
3.Notify the Contractor of non-conforming Work, reject non-con forming Materials, and suspend portions of the Work fo r safety reasons only. The Contractor shall refer questions at issue to the Project Ma nager for a decision. Section 105: Control of Work Page 37 105.9.2 Inspector Authority Limitations The Department does not aut horize its Inspectors to:
1.Alter or waive any provision of the Contract; 2. Issue instructions contrary to the Contract; or,
3.Provide direction, superintendence or guidance to the Contra ctor, Subcontractors or Suppliers. Any action or inaction of the Inspector does not waive the Dep artment’s right to pursue any and all legal remedies for defective Work or Work performed by the Contractor in an unworkmanlike manner.
105.10 Inspection of Work
The Contractor shall provide the Project Manager with 48 hour n otice for inspection of the Work. Failure by the Contractor to provide the proper notice m ay result in the Department directing the Work performed wi thout inspection to be removed a t no cost to the Department. The Contractor shall provide the Department or its representati ve access to the Work and provide all information, Equipment, and assistance requested or required to make a complete and detailed inspection of the Work. All Materials and each pa rt or detail of the Work shall be subject to inspection by the Department. The Project Manager may direct the Contractor to remove or unco ver portions of the finished Work, at any time befor e Final Acceptance of the Work. The Contractor shall restore the portions of the Work to the standard required by the Contra ct after the Project Manager's examination. If the examined Wo rk is Acceptable, the Departmen t will pay for the removal and restoration as Extra Work under Section 104, “Scope of Work,” a nd Section 109.5, “Payment for Changes, Differing Site Condi tions, and Extra Work.” Howev er, if the examined Work is unacceptable, the Contractor shall remove and restore the Work at no additional cost to the Department. Action or inaction by a Department Inspector shall not relieve the Contractor from any responsibility under the Contract for Acceptable Work in confor mity with the Contract. The failure to properly perform inspections, tests or approvals by the Department shall not relieve the Contractor from its obligati on to perform the Work in stric t conformance with the Contract. The Department may allow a unit of government, political subdiv ision, or a railroad corporation to inspect the Work . This inspection shall not mak e the unit of government or political subdivision or the railr oad corporation a party to th e Contract and shall not interfere with the rights of either party.
105.11 Removal of Unacceptable and Unauthorized Work
Work that does not conform to the requirements of the Contract shall be unacceptable, unless it is determined by the Project Manager to be Acceptable under the provisions of Should any defective Work or Material be discovered, before Fin al Acceptance, the Department will issue a non-conformance in accordance with Sect ion 109.8.2, “Non- Conformance.” Prior to Department Acceptance, the Contractor shall replace or repair Materials damaged in transit or during hand ling at no additional cost to the Department. The Contractor shall remove unacceptable Work resulting from ca uses existing before the Final Acceptance of the Work and replace in an Acceptable m anner at no additional cost to the Department. The Project Manager will set the time limit for the replacement Work. The Department shall not pay for the following under the provis ions of the Contract:
1.Work performed contrary to the Project Manager's direction o r as provided in the Contract;
2.Work performed beyond the lines and grades on the Plans; or,
3.Work performed without authority. Upon failure of the Contractor to comply with the removal and r eplacement of unacceptable or unauthorized Work w ithin the time specified by the Project Manager, the Project Manager shall have authority to cause unacceptable Work to be removed and replaced. The Project Manager will then deduct from the monies due or that become due to the Contractor the cost of remov ing or replacing the unacceptab le or unauthorized Work.
105.12 Load Restrictions
The Contractor shall observe legal load restrictions when hauli ng Equipment or Material on public Roads outside of the Project or on Roadways within th e Project. The Project Manager may approve exceptions, in writing, provided the Contra ctor has obtained the proper oversize and overweight permits. The Contractor is liable for damage that may result from moving Equipment, even with the issuance of a special permit. The Contractor shall not use Equipment or haul loads that will cause damage to Structures, Roadway, or any other construction, regardless of l egal load allowances. If the Project Manager determines that anticipated hauling oper ations may cause damage to existing Roadways or Struct ures, the Project Manager will is sue a written notice to the Contractor. Within seventy two (72) hours of the notice, the P roject Manager will elect one (1) or more of the following solutions:
1.Change the haul route; or,
2.Reduce the allowable load limit. If the Project Manager determines that hauling operations are c ausing damage to existing Roadways or Structures, the Project Manager will issue a writte n notice to stop operations causing the damage. Within seventy two (72) hours of the notic e, the Project Manager will issue written direction to the Contractor to repair the damage or the Project Manager will elect one(1) or more of the following solutions:
1.Change the haul route;
2.Reduce the allowable load limit; and/or, 3. Allow the operations to continue with the requirement that t he Contractor repair all damaged areas at ½ Unit Bid prices. In the absence of a Unit Bi d price, the current published average unit bid prices shall be used.
105.12.1 Corrective Actions and Methods of Payment
105.12.2 Change in Haul Route
If the Project Manager changes the haul route, the Department w ill modify the Contractor’s payment per the following equation: Where, P is the payment modification (in dollars) R is the rate (in dollars per ton mile determined in accordance with Section 109, “Measurement and Payment.”) t is the weight of Material hauled from the new stockpile area ( in tons) 0d is the original haul distance measured from the Roadway access point to the original stockpile area 1d is the new haul distance measured from the Roadway access poin t to the new stockpile area
105.12.2 1 Change in Allowable Load Limit
If the Project Manager reduces the allowable load limit, the De partment will pay the Contractor in accordance with the following equation: LALR LA dR QFP) ( ( 2 ) Where, P is the additional payment (in dollars) R is the rate (in dollars per ton mile determined in accordance with Section 109, “Measurement and Payment.”) QF is the total quantity of Material hauled at the reduced load l imit (in tons) LA is the allowable load limit (in tons) LR is the reduced load limit (in tons) d is the haul distance (in miles) If the Project Manager allows ope rations to continue or because of damage to an existing Roadways or Structures, the Depa rtment will pay the Contractor for the Material used to make the repairs at the ½ of the Bid Item Unit Price, or in accordan ce with Section 109, “Measurement and Payment.” If an item is not part of the Contr act, the Department will negotiate a new unit price. If a Structure or existing Roadway must be repaired, the Department may pay the Contractor for hauling repair Materials using a rate requested and justified by the Contractor and approved by the Project Manager .
105.13 Reserved
105.14 Reserved
105.15 Maintenance During Construction
The Contractor shall maintain the Work during construction and until the Department Accepts the Work, except as otherwise provided in Section 104.5 , “Maintenance of Traffic,” and Section 105.18, “Acceptance.” This maintenance shall consi st of continuous, daily Work Section 105: Control of Work Page 40 with adequate Equipment and forces so that the Roadway and Stru ctures are kept in satisfactory condition. The Contractor shall be responsible fo r maintaining the Project free and clear of Deleterious Materials i ncluding debris, weather relate d remnants, snow, loose Materials and trash. The Department will be responsible for sn ow removal operations on travel lanes open and utilized by the public. The Contractor shall maintain the previous course and Subgrade when the Plans require the Contractor to place traffic on the unfinished Roadway. All maintenance Work during cons truction and before the Project is Accepted shall be Incidental. The Department shall not pay the Contractor an add itional amount for this Work except in accordance with Section 104.5, “Maintenance of Traffi c,” and Section 105.18, “Acceptance.” 105.16 FAILURE TO MAINTAIN ROADWAY OR STRUCTURE If the Contractor fails to maintain the Project in accordance w ith Section 105.15, “Maintenance During Construction, ” the Project Manager shall no tify the Contractor in writing of the failure. If the Contractor does not take corrective act ion in timeframe specified by the Project Manager, the Project M anager may issue a written notice per Section 109.8.2, “Non- Conformance” or notice of the Contractor’s apparent default per Section 108.9, “Default of Contract.” If the Contractor does not begin maintenance after notice from the Project Manager, the Project Manager may begin maintenance of the Project. For corr ective actions implemented by the Project Manger the Contractor shall reimburse the Depart ment for Department incurred costs of such maintenance plus an additional ten percent (10%) for administrative costs.
105.17 Reserved
105.18 Acceptance
105.18.1 Partial Acceptance
The Contractor may request in writing that the Project Manager inspect a portion of the Project (e.g., a Structure, a section of Road, etc.) at any tim e during the Work. If the Project Manager finds that portion to be in accordance with the Contrac t, the Project Manager may Accept that portion as complete, and, without waiving the provi sions in Section 105.3, “Compliance with Plans and Spec ifications,” Section 107.26, “No Waiver of Legal Rights” and Section 109.10, “Project Closure” the Contractor may be relieve d of further responsibility for that portion unless the Department discovers latent defects bef ore Final Acceptance of the Work. Such partial Acceptance does not void or alter the Contr act. The Department will Accept permanent traffic safety and control devices installed in accordance with the Contract (with all ancillary components) an d being used by the public upon installation but before completion of the remaining Work. Permanently installed items Accepted on this basis are limited to the following:
1.Guardrail;
2.Impact attenuators;
3.Traffic Signals; 4. Signs;
5.Lighting;
7.CWB;
8.Concrete Bridge parapet;
9.Bridge railing; 10. Post and cable barrier ;
11.Guardrail anchorages;
12.Permanent pavement markings; and, 13. Fence. All required performance tests and guarantees shall remain appl icable. The Contractor shall repair or replace any damage, theft, or v andalism to these items after Acceptance in accordance wi th Section 104.2, “Extra Work. ” The Contractor shall repair or replace items damaged due to the Contractor’s negligence or as a result of the Contractor’s failure to protect the Work per Section 107.20, “Contractor’s R esponsibility,” at no additional cost to the Department. The Contractor shall erect these items in a logical constructio n sequence. The Department shall not Accept prematurely constructed items until they may be used for their intended purposes.
105.18.2 Final Acceptance
The Department will make the Final Acceptance in accordance wi th Section 109.10.8, “Physical Completion, Release of Retainage, Final Payment and F inal Acceptance.”
105.19 Notice of Intent To Claim
Notice of intent to claim shall be given in order that the Dep artment can assess the situation, make an initial deter mination as to the causes of th e intent to claim, institute appropriate changes or procedures to resolve the matter, docume nt issues related to the intent to Claim, track costs and possible Delay, and facilitate resolution of the intent to Claim. The failure of the Contractor to provide a timely and complete Notice of Intent to Claim form, a contemporaneous statement of estimated damages or Delay, and to comply with the other requirements of this section shal l constitute a waiver or aband onment of the Claim. The Contractor’s submission of the Notice of Intent to Claim fo rm and the Project Manager’s actions related to the N otice of Intent to Claim shal l not be construed to prove or validate the Claim or be constr ued as an admission of liability .
1.Unless otherwise specified by the Contract, the Contractor s hall only make Claims in accordance with the exclusive administrative remedy and procedu res set forth in this Section and Section 105.20, “Administrative Remedy.”
2.The Contractor shall submit to the Project Manager it notice of intent to claim on the Department’s current Notice of Intent Claim form. The Notice o f Intent to Claim form and documents or information submitted with the same shall cons titute the Contractors intent to make a Claim. The notice of intent to cl aim shall provide a contemporaneous statement of estimated damages or Delay before beginning the Work on which the Claim is based, but, in no event shall notice be given later than seven (7) Days of the Contractor discovering the condition or i ssue giving rise to the Claim, or within seven (7) Days of receipt of a notice of a dif fering site condition from the Project Manager. A notice of intent to Claim shall include , when relevant to the Section 105: Control of Work Page 42 intended Claim (e.g., when the Contractor intends to seek a Con tract adjustment for time, Delay damages, or reducti on in Liquidated Damages, etc.), a revised schedule that identifies the impacts pursuant to Section 108.3.2, “Sched ule Format;” failure to include a revised schedule shall render the notice of intent to Claim incomplete. This Section and the deadlines stated herein do not modify any of the deadlines for submitting revised schedules as provided in Section 108.3, “Sch edule.”
3.If the Contractor submits a timely Notice of Intent to Claim Form the Project Manager may, without admitting liability for the Claim, direct the Contractor to keep a complete and accurate account, in detail, of the cost of doin g the Work on a Force Account basis per Section 109.6, “ Force Account.” Failure to m aintain records on a Force Account basis when so dir ected by the Project Manager sha ll waive any associated Claim by the Contractor.
4.The Contractor shall provide the Project Manager proper faci lities to keep account of the actual cost associated with the notice of intent to claim; the Contractor waives the right to assert a Claim if the Project Manager is not affor ded proper facilities to keep account of actual cost. The Project Manager may, in the P roject Manager’s discretion, in writing, waive this requirement to keep account of actual cost upon a showing of adequate justification by the Contractor.
5.If the Project Manager finds that the notice of intent to cl aim is justified the Project Manager will process a Supplemental Agreement to resolve the no tice of intent to claim.
6.If the notice of intent to claim is unresolved then the Cont ractor shall comply with
105.20 Administrative Remedy
This Section governs the administrative remedy procedure to re solve all Claims, unless otherwise specified in the Contract. The administrative remedy procedure is the sole Contractual procedure to resolve Claims. No Claim shall be acc orded any level of review unless the procedure below is followed sequentially. The seque ntial steps of the process are as follows: Step I. Notice of Intent to Claim; Step II. Submittal of the Claim to the Project Manager; Step III. District Engineer r eview and decision; Step IV. Service of Request for Re consideration of Claim to Cab inet Secretary; Step V. Cabinet Secretary’s review, which may include referral to Claims Board for an informal hearing, and Cabi net Secretary’s decision; and, Step VI. Service of Request for Arbitration or Service of Summ ons and Complaint in State District Court. The Contractor shall not proceed to the subsequent step without a written determination from the preceding step. The complete terms of a resolved Claim, regardless of the level of the administrative remedy, shall be documented and memorialized via a Change Order executed by the Contractor and the Department. The executed Change Order shall represent a final agreement to the total additional compensation and time due for any and all Work and items pertaining to the Work associated with the Change Order. Unles s otherwise provided in the terms of the Change Order, the executed Change Order shall oper ate as an accord and satisfaction of the Claim and shall operate as a bar to any fur ther Claim by the Contractor. Each party shall bear its own a ttorneys’ fees, costs, and exper t fees. Step I. Notice of Intent to Claim, See Section 105.19, “Notice of Intent to Claim:” The Department shall dismiss a Contractor’s Claim for failure t o comply with the time limitations, requirements and proc edures set forth in this Sect ion and Section 105.19, “Notice of Intent to Claim.”
105.20.1 Submittal of the Claim to the Project Manager
Step II. Submittal of the Claim to the Project Manager: The Contractor shall submit its Claim on the Department’s Claim Form. The Project Manager retains the right to r equest additional information and documents from the Contractor to support the Claim. The Contractor shall provide the request ed additional information and documents.
1.A Claim shall be rejected and it shall constitute a waiver o r abandonment of the Claim and a failure to exhaust its administrative remedy for th e Contractor’s failure to comply with the following conditions:
a.The Claim shall be in writing; b. The Claim shall be submitted on the Department’s Claim Form;
c.The Claim shall be submitted within 30 Days of the date that the Work associated with the Claim has been completed;
d.The Claim shall be submitted only once;
e.The Claim shall include all required supporting documentatio n and information; and
f.A Contractor’s, Subcontractor’s or Supplier pass-through Cla im shall be certified by the Contractor as the Contractor’s Claim on the De partment’s current approved forms.
2.The Contractor has the burden of fully justifying and docume nting the Claim and shall provide to the Project Manager the following supporting d ocumentation and information in support of the Claim. The following supporting d ocumentation shall also be updated from those documents submitted with the Notice of Intent to Claim: The Contractor has the burden of fully justifying and documenti ng the Claim and shall provide to the Project Manager the following supporting d ocumentation and information in support of the Claim. The following supporting d ocumentation shall also be updated from those documents submitted with the Notice of Intent to Claim:
a.Description of the issue upon which the Claim is based; b. Location where the issue arose; c. The dates impacted including t he time and date the issue aro se;
d.Clear explanation of why the issue requires additional compe nsation or time or a change to the Contract, including references to the relevant portions of the Contract;
e.Copies of all written comm unications including correspondenc e and emails related to the issue;
f.A detailed compilation of the amount of additional compensat ion sought and a breakdown of the amount sought as follows: documented additiona l job site labor expenses; documented additi onal cost of Materials and sup plies; a list of additional Equipment costs claimed , including each piece of Equ ipment and the Section 105: Control of Work Page 44 Blue Book rental rate claimed fo r each; any other additional di r e c t c o s t s o r damages and the documents in support thereof;
g.Where a Claim seeks additional time, time and compensation f or Delay, adjustment of Contract Time, or the reduction or elimination of liquidated damages, previously submitted Ba seline Schedule and revised sch edules that comply with the requirements of Section 108.3, “Schedule”;
h.Invoices identifying the labor, Materials, and Equipment use d or proposed to be used;
i.Project Cost Reports. If the amount claimed by the Contract or exceeds $100,000.00, Project cost reports for the time periods relevan t to the Contract and the performance of the Work;
j.Bid Documents. If the amount claimed by the Contractor excee ds $100,000.00, or if required by the Contract the Contractor shall make the Co ntractor’s documents available for inspecti on by the Project Manager at th e Contractor’s Project office. This includes i nformation and calculations used to prepare and determine its Bid for the Contract prior to submission of the B id. The required bid preparation documents, as maintained by the Contractor, to be produced shall include: clear itemization of the costs for each pay item broken down into components sufficient to allow a detailed cost estimate; the co sts allocated to each component broken down into the Contractor's usual estimate categories such as direct labor, Equipment, Materials, and Subcontractor c ost; indirect costs, including the indirect cos t allocations made to each bid item; quantity takeoffs; the construction and progress schedule and any concep tual schedules upon which the Bid wa s based; rates of production and progress; marked up plans, sheets and Worki ng Drawings ; calculations, co pies and quotes from Subcontractors and Suppliers; memoranda, narratives , and all other information used by the Contractor to arrive at all of th e prices contained in the Bid. The Project Manager may waive this requirement;
k.Total amount of the Claim in terms of time and compensation; and,
l.Certification of Claim. The Contractor shall submit a Certi fication of Claim form with the Claim.
105.20.2 District Engineer
Step III. District Level Review and Decision : The District Engineer or designee has 30 Days from the date th e Claim is received by the Project Manager, or additional time if agreed upon by both part ies in writing, to review and render a decision. If the Di strict Engineer or designee does n ot make a written decision within the 30 Days, or the agreed upon additional time, the Claim is d eemed denied by the District Engineer. The parties may engage in informal mediation to reso lve the Claim at the District level prior to the expiration of the time in which the District Engineer or its designee may render a decision. Once a Claim is submitted to the Project Manager, nothing in t his section shall be construed as permitting the Contra ctor to revive, modify, suppl ement, enlarge, or amend the Claim or the basis of entitlement other than providing addition al documents and information in support of the Claim. All further proceedings shall be limited solely to the bases of entitlement and the amount of any compensation or time stated for any and a ll issues claimed in the Contractor’s written Claim submitted.
105.20.3 Secretary Level
Step IV. Service of Request for Reconsideration of Claim to th e Cabinet Secretary: The Contractor shall within ten (10) Days of the District Engi neer’s decision, serve a written request to reconsider t he Claim. When the Contractor f ails to request reconsideration to the Cabinet Secretary within the ten (10) Day timeframe then the District Engineer’s decision is deemed Accepted by the Contractor. This Acceptance shall constitute a complete and final resolution of the Claim and the Department will, with in 30 Days of the District Engineer’s decision, execute a unilateral Change Order implemen ting the District Engineer’s decision. A request for reconsideration of the Claim shall be rejected a nd it shall constitute a waiver or abandonment of the Claim and a failure to exhaust its administrative remedy for the Contractor’s failure to comply with the following conditions:
1.Service of Process at the Se cretary Level. Service shall no t be considered effective unless the request includes all supporting documentation provid ed at the District Level and, when applicable, a copy of the District Engineer’s w ritten denial of the Claim. Service of all notices and required documentation and in formation at the Secretary Level shall be made upon the Cabinet Secretary with a c o p y contemporaneously transmitted to both the District Engineer and the Department’s Office of General Counsel. S e r v i c e upon the Cabinet Secretary shall be made during the Department’s regular Business Hours by delivery in p erson, or by certified mail, postage prepaid, return receipt requested, or b y delivery by a nationally recognized overnight o r same-day courier service tha t obtains receipts. The copy contemporaneously transmitted to the Office of General Counsel may be served by the means for serving the Cabinet Secretary or, with prior written agreement of the Office of General Counsel, by facsimile copy o r by email transmission. Service of notice or documents made after the De partment’s regular Business Hours shall not be effe ctive until the next business D ay. Service upon the District Engineer may be made by the means for serving the Cabi net Secretary or by facsimile copy or by email transmission and need not include the documentation previously submitted a t the District level.
2.Certification of Claim. The Contractor shall submit a Certi fication of Claim with the request for reconsideration on the Department’s approved form. Additional Information. The Secretary retains the right to re quest additional information from the Contractor to support the Claim, regardless of the Pro ject Manager’s previous waiver. Step V. Cabinet Secretary’s Review, Which May Include Referral to Claims Board for an Informal Hearing and Cabine t Secretary Decision:
1.The Cabinet Secretary will prov ide a written decision on the Claim or will refer the Claim to the Department’s Claims Board within 21 Days of servic e of the request for reconsideration. This deadline may be extended in writing by t he Cabinet Secretary.
2.Claims Board. If the Claim is referred to a Claims Board, a n informal dispute resolution board, by the Cabinet Secretary, the Secretary shall appoint up to three
3.independent panelists with relevant experience in highway a nd transportation design, construction management, engineering, surveying, constr uction Contract administration, construction over sight Work, or law. The Claim s Board shall not include any current employees of the Department or the Contract or, but may include individuals contracted to provide services to the Department. The Claims Board shall apply the Contract to the Claim and shall conduct an info rmal hearing in order to facilitate the expeditious and informal resolution of the Cl a i m . A t t o r n e y s Section 105: Control of Work Page 46 representing the parties are permitted to attend the informal h earing; however, attorneys shall not participate in the informal hearing unless the Claims Board specifically addresses an issue to them or unless agreed to by both parties. Notification shall be provided by both parties a minimum of fiv e (5) Days prior to the hearing if legal representation will be attending the hearing. The Claims Board shall issue a final, written recommendat ion to the Cabinet Secretary to resolve the Claim.
3.Secretary Decision. If the Claim is referred to the Departm ent’s Claims Board, the Cabinet Secretary will provide a written decision within 21 Day s of the Secretary’s receipt of a final, written recommendation on the Claim from th e Claims Board; If the Cabinet Secretary does not provide a written decision within 21 Days, unless extended by the Secretary in writing prior to expiration of tim e to issue a decision, the Claims Board’s recommendati ons shall be deemed to have been adopted by the Cabinet Secretary and shall operate as the Secretary’s decision .
4.Payment. The Contractor is only entitled to payment of its Claim pursuant to the Cabinet Secretary’s decision if the Contractor fully Accepts th e decision and executes an accompanying Change Order. If the Contractor fails to execute a Change Order within 21 Days of the Cabinet Secretary’s decision , the Department may process a unilateral Change Order implementing the Cabinet Secretary’s decision. The Contractor’s proc eeding with litigation in State District Court or arbitration shall operate as a waiver by the Contractor to reco ver or receive payment pursuant to the Cabinet Secretary’s decision.
105.20.3 1 Arbitration
Step VI. Service of Request for Arbitration or Service of Summ ons and Complaint in State District Court:
1.The Contractor and Department may agree to arbitrate the Cla im instead of proceeding to litigation in State District Court. Arbitration may only be had at the mutual agreement of the Contractor and the Department. Arbitra tion shall be conducted in accordance with the New Mexico Uniform Arbitration Act (NMSA 1978, § 44-7A-1, et seq.) and this Section.
2.Service of the request to arbitrate the Claim by the Contrac tor shall only be made in the request for rec onsideration. The Cabi net Secretary will is sue a decision denying or agreeing to the request for arbitration in writing within te n (10) Days of the receipt of the request to arbitrate. If the Cabinet Secretary does not respond to the request to arbitrate then the request is deemed denied.
3.By the parties agreeing to arbitration, the Contractor waive s the right to redress through litigation filed in State District Court. The Contract or’s proceeding with arbitration shall operate as a waiver by the Contractor of reco very under any written decision issued by the Cabinet Secretary.
4.If the Contractor and Department agree to arbitrate the Clai m the arbitration panel shall consist of three (3) members.
5.Within 15 Days of the agreement to arbitrate the Claim, the Contractor shall submit the name of a panelist. The Contractor’s panelist shall:
a.Not be an employee of the Contractor;
b.Have 15 years’ experience in Highway construction management , methods, techniques, or law; or have an active professional license with the state of New Mexico as an Engineer, Surveyor or Attorney with ten (10) years ’ experience in Highway construction managemen t, methods, techniques, or law;
c.Be either a resident of the state of New Mexico or identify New Mexico as the panelist’s principal place of business; and,
6.Within 15 Days of receiving notice of the Contractor’s panel ist, the Cabinet Secretary shall submit the name of a panelist. The Cabinet Sec retary’s panelist shall:
a.Not be an employee of the Department, but may include indivi duals contracted to provide services to the Department;
b.Have 15 years’ experience in Highway construction management , methods, techniques, or law; or have an active professional license with the state of New Mexico as an Engineer, Surveyor or Attorney with ten (10) years ’ experience in Highway construction managemen t, methods, techniques, or law;
c.Be either a resident of the state of New Mexico or identify New Mexico as the panelist’s principal place of business; and,
d.Agree to serve on the panel;
7.Within 30 Days after the Cabinet Secretary panel appointment , the two (2) panelists will choose a third panelist. The third panelist shall:
a.Be a professional arbitrator who is a member or diplomat of a nationally recognized professional arbitrati on organization, such as the N ational Academy of Arbitrators or the American Arbitration Association; or is a retired federal or New Mexico district or appellate judge; or be a former employee of FHWA;
b.Not be an employee or a contractor of either the Department or the Contractor; and,
c.Agree to serve on the panel;
8.If the two (2) panelists are unable to agree, a district jud ge from the First Judicial District shall choose the third panelist from a list of four (4 ) prospective panelists who meet the requirements of the preceding paragraph, two (2) e ach provided by the Department and the Contractor. Application to the court fo r this appointment shall be made by either or both parties within 15 Days of the i mpasse; the parties may agree in writing to extend this deadline.
9.The panel shall hold the arbitration hearing in Santa Fe Cou nty, unless otherwise approved by the Department, no later than 90 Days after the pan el is selected. If the panel fails to meet this deadline or if the parties agree t o extend the deadline, the panel retains jurisdiction to hear and resolve the issues i n dispute.
10.Each party will pay the expenses and fees of its chosen pan elist and attorney. Both parties will share equally the expe nses and fees of the third p anelist. If both parties agree, they will share court reporter costs. If not, the party requesting the transcription will pay the full cost.
11.The proceedings and the decision of the panel will be in ac cordance with the New Mexico Uniform Arbitration Act, NMSA 1978, § 44-7A-1 et seq. T he decision is final and binding and may be vacated, confirmed, or appealed only in accordance with the New Mexico Uniform Arbitration Act (NMSA 1978, § 44-7A-1 et seq.).
105.20.4 Litigation
If the Contractor does not accept the Cabinet Secretary’s deci sion the Contractor shall issue its notice of Public Works Mediation within three (3) Day s of the Cabinet Secretary decision. The Contractor shall provide no less than seven (7) Days’ notice of the convening of a mediation session. The Public Works Mediation shall be compl ete within thirty (30) Days of the date of the notice of Public Works Mediation. No extensions of this timeframe will be granted unless approved by the Department . Service of notice o f a mediation session shall be made upon both the Cabinet Secretary and the Office of General Counsel and shall otherwise Section 105: Control of Work Page 48 comply with the New Mexico Public Works Mediation Act. The Con tractor shall exhaust the mandatory mediation procedures of the New Mexico Public Works M ediation Act (NMSA 1978, § 13-4c-1, et seq.) before s eeking judicial relief in Sta te District Court. Failure to timely notice and convene a mediation session and to timely file and s erve a summons and complaint shall operate as a waiver and abandonment of Contract or’s Claim, shall act as an Acceptance of the Cabinet Secreta ry’s decision, and shall bar t he Contractor from proceeding to litigate the Claim. The Contractor may, within 45 Days of the issuance of the Secre tary’s decision, proceed with litigation in State District Court by filing a summons and complaint. The Contractor shall properly serve the summons and complaint within 30 Days of the filing of the Complaint in State District Court. Upon expiration of the time in which to mediate and file a summons and complaint, or if a summons and complaint has been filed the exp iration of the time in which to properly serve the summons and complaint, the Department may pr ocess a unilateral Change Order implementing the Cabinet S ecretary’s decision based on th e Contractor’s abandonment or waiver of its Claim. Section 106: Control of Materials Page 49
Source: New Mexico Standard Specifications for Highway and Bridge Construction, 2019 Edition. Pages 0–0 of 974.