SECTION 109: MEASUREMENT AND PAYMENT 109.1 MEASUREMENT OF QUANTITY The Department will measure Pay Items in accordance with the Pa y Unit listed in the Contract. 109.1.1 Pay Unit Terminology Otherwise, the following terminology controls:
1.The distance between stations is 100 feet, measured longitud inally;
2.Longitudinal measurements are along and parallel to surfaces , not horizontal. For pay items measured by the square yard, the Department will make no deduction for fixtures in the Work with areas less than one (1) square yard;
a.Transverse measurements for areas of Base Course and pavemen ts are the neat line dimensions shown on t he Plans based on the average wi dth of the installed Material along the centerline of the Roadway;
b.Structures are measured according to the neat lines shown on the Plans or as provided by the Department;
c.For pay items measured by the foot, measurements are paralle l to the base or foundation;
3.The volume of excavation is calculated by using the average end area method at 25 foot intervals or other Project Manager approved methods;
4.A ton equals 2,000 lb; a “sack” equals 94 lb of cement;
5.Timber and lumber (permanently incorporated in the Project) is measured by the foot, and measured on nominal widths and thickness and the leng th of each piece. The Department will Accept lumber and timber conforming to the American Lumber Standards for rough and dressed sizes, as specified in the Cont ract;
6.Standard manufactured items, identified by unit weight or se ction dimensions, are measured using nominal weights or dimensions. The Department w ill Accept manufacturing tolerances established by the industries involved , unless otherwise stated in the Contract;
7.Asphalt Materials are measured by the ton or as designated i n the Contract. The weight is based on net certified scale weights or weights calcu lated from certified volumes. The certified weights or volumes are subject to inspe ction and adjustment at the point of delivery;
8.Materials that are measured by weight shall be measured and proportioned by weight using certified and accurate scales that are within tole rances established by state law;
a.The Contractor shall provide scales or use commercial scales ;
b.Scales shall be certified and sealed at least once every 12 months or each time the scales are relocated, or as directed by the Project Manager ;
c.Weighmasters (including Deputy Weighmasters), provided by th e Contractor and certified by the NMDA, shall operate the scales. The certi fied weighmasters shall perform their duties in accordance with the regulations of the New Mexico Department of Agriculture statutes and regulatio ns concerning the same. The cost of the certi fied weighmasters, weighmasters ’ scales, scale tickets, scale house, and verification of the scale’s accuracy is Incidental to the weighed Material; Section 109: Measurement and Payment Page 82 d. Empty vehicles used to haul Material paid by weight shall be weighed at least twice daily, at a minimum once prior to initial Material delive ry and once prior to final Material delivery. The Cont ractor shall ensure vehicles bear legible identification marks. On a daily basis the Contractor shall pr ovide the Project Manager with a written list of de livery vehicles showing identi fication marks, number of axles, the distance between extreme axles and daily t are weights. The Contractor shall update this information before delivery of the Material and when the Contractor changes vehicles , combination vehicles, or axle length relationships;
e.The Department may convert weight to volume, or volume to we ight, for payment purposes. The Project Manager will determine the facto r(s) for conversion using an Acceptable method;
f.The operator of each weighed vehicle shall obtain a scale ti cket (certificate of correct weight) from the weighmaster and deliver the ticket to the Project Manager or designee at the point of delivery. The following in formation shall be included on the scale ticket:
i.Project number; ii. Date; iii. Ticket number; iv. Truck / Trailer unit number;
v.Gross weight; vi. Tare weight; vii. Net weight; viii. Material type; ix. Certified weighmaster’s name;
x.Signature of weighmaster; and, xi. Whether the driver was on or off the scale during weighing. 109.2 APPROVED EQUIPMENT RENTAL RATES For machinery or Equipment owned or leased directly by the Cont ractor or its Subcontractor at any tier, the Contractor will be paid Equipmen t rental rates as designated in the Contract. The Department will not compensate the Contracto r or its Subcontractors at any tier for owned or leased small tools. Small tools are defined a s a n y t o o l w h i c h w o u l d b e valued less than $2000.00 if purchased new. The Blue Book rates shall be used for the actual time the Equip ment is in operation calculated by using the Federal Highway Administration rate. T he FHWA rate is equal to the monthly rate divided by 176 (hours/month) plus the hourly opera ting cost. The FHWA rate must also be adjusted for age and geographic region. Therefore , the "FHWA" rate in the Blue Book represents monthly rate/1 76 x age adjustments x regional a djustments plus hourly operating cost. The Department may add a maximum of 10% only t o the Equipment rental rates. The Department will apply Equipment rental rates pursua nt to the Blue Book and in accordance with the following criteria:
1.The manufacturer’s identification plates on the Equipment wi ll be used to identify the Equipment and its capacities. If the Equipment does not have t hese plates, the Contractor shall provide written statements certifying the Equi pment identification and capacity as shown on the Contractor's Equipment inventory. The Contractor shall submit the type, capacity, and horsepower of each piece o f Equipment, to Section 109: Measurement and Payment Page 83 correlate with the Blue Book schedule. The Blue Book reflects the maximum rates for Equipment of modern design and in good-working condition;
2.The Blue Book lists common pi eces of Equipment. If the Blue Book does not list a piece of Equipment the use of the Blue Book rental rate for a c omparable piece of Equipment shall be used as approv ed by the Project Manager. If no comparable piece of Equipment is identified in the Blue Book the Project M anager may negotiate a rental rate with the Contractor at a fair market rental rate;
3.If a piece of Equipment, not available on the Project, requi res hauling onto the Project, the Contractor shall in clude the actual transportation cost (in and out). The Department will pay the transportation cost for each piece of E quipment once. Under unusual circumstances the Contractor may provide to the D epartment written justification for additional transportation costs;
4.The Contractor shall only be paid the operating rate for tho se hours the Equipment is actually in use. A standby rate for Equipment required to b e at the Work site but not operating may by paid by the Department if agreed to in wri ting in advance by the Project Manager in which case the Department will pay for s tandby Equipment using standby-time rental rates a t 50% of the Blue Book Equipme nt rental rate, without the cost of operating personnel;
5.The regional difference percentage, as described in the Blue Book does not apply. However, the factors in the Rate Adjustment Tables of the Blue Book do apply; and,
6.Overtime, as described in Blue Book does not apply. The Dep artment will pay for Equipment used on Extra Work at the regular hourly rate in acco rdance with the rate provided in the Blue Book. 109.3 SCOPE OF PAYMENT The Contractor shall receive and Accept compensation in accorda nce with the Bid for performing the Work in an Acceptable manner. The compensation associated with the Bid shall include the risks, losses, damages and expenses that, whe n considering the nature of the Work and having exercised Pre-Bid Due Diligence, should hav e been reasonably expected by the Contractor in prosecuting the Work. The Contractor shall receive and Accept compensation provided f or in the Contract as full payment for furnishing all Materials and for performing all Wor k under the Contract in a complete and Acceptable manner subject to the provisions of Sec tion 107.26, “No Waiver of Legal Rights.” The Contractor’s Bid Item Unit Price is presume d to be based on its exercise of Pre-Bid Due Diligence and consi ders all risk, loss, damage, or expense of whatever character arising out of the nature of the Work. The Department will pay for the approved actual quantities of M aterial incorporated into the Work unless otherwise provided in the Contract. The Department will onl y pay for Pay Items listed in the Contra ct in accordance with the “Basis of Payment” provisions. I tems not included in the “Basi s of Payment” provisions shall be considered Incidental , unless otherwise indicated in the Con tract. The Department will not pay separately for Work Incidental to the completion of a Pay I tem, or pay for the Incidental Work under another Pay Item; except as provided in Section 104. 6 , “ R i g h t s i n a n d U s e o f Materials Found on the Work.” Payment for any Pay Item shall be full compensation for all Wor k necessary to complete the Pay Item. Section 109: Measurement and Payment Page 84 When a Contract Item Specificat ion references another Specifica tion(s) to complete the Work, Pay Items referenced in that Specification, the Pay Items referenced will not be measured or paid for separately. For example, if the Specification for Contract item “A” refers to Specification “B” the Pay Items in Specificat ion “B” will not be paid for, unless specifically stated in the Contract. The Payment for Contract item “A” will be full compensation for Work as described in the Specification for Contract item “A”. The Contractor shall not receive payment for corrective Work. Corrective Work is Work required by the Department to make previously unacceptable Work Acceptable. The Department may Accept portions of the Work at an adjusted p rice in accordance with the relevant Pay Adjustment pro visions in the Contract. The ad justed price only applies to the specific Accepted portion of Work. 109.4 COMPENSATION FOR OVERRUN / UNDERRUN QUANTITIES When the Project Manager determi nes the Work is Acceptable, the Department will pay the Contractor in accordance with Basis of Payment section or C hange Order. If the Accepted quantities of Work vary from the quantities in the Contract, th e Contractor shall Accept, as payment in full, payment based on the Bid Item Unit Price for t he Accepted quantity. 109.5 PAYMENT FOR EXTRA WORK The Department will pay the Contractor for Extra Work resultin g from significant changes in the character of the Work, differing site conditions or Depa rtment ordered Work based on the following order of priority for payment:
1.Bid Item Unit Prices;
2.Negotiated unit prices;
3.Negotiated Lump sum; or, 4. Force Account. For Items of Work performed by the Contractor, the negotiated u nit price or negotiated Lump sum price shall include all costs associated with the Work . If Subcontractors perform Work as Extra Work under items 2, 3 or 4, the Department may on ly compensate the Contractor up to an additional ten percent (10%) of the total a ctual cost of the subcontracted Work less than or equal to $10,000.00 for indirect and administ rative costs. If the total cost of the subcontracted Work is greater than $10,000.00 then the Depa rtment shall only compensate the Contractor $1,000.00 plus five percent (5%) of t he excess over $10,000.00. 109.6 FORCE ACCOUNT When the order of priority for payment is exhausted and Extra W ork must be paid by Force Account, the Department will pay the Contractor in accord ance with the following Sections. If the total cost of the subcontracted Work by Force Account is less than or equal to $10,000.00, then the Department shall only compensate the Contr actor an additional ten percent (10%) of the total cost of the subcontracted Work for i ndirect and administrative costs. If the total cost of the subcontracted Work is greater than $10 ,000.00, then the Department shall only compensate the Contractor $1,000.00 plus five percen t (5%) of the excess over $10,000.00. 109.6.1 Labor The Department will pay the wage rate for Force Account Work ac tually paid by the Contractor during the pay period ending before the Force Accoun t Work commences. Such payment shall include Work by supervisors in direct charge of t he Force Account Work. If there is no wage rate for a l abor classification needed to perf orm the type of Work required, the Department and Contractor will negotiate and document a new wage rate before beginning the Force Account Work. Labor shall also include, and the Department will reimburse for , the following actual reasonable costs paid to (or on behalf of) workers:
1.Subsistence and travel allowances that do not exceed the New Mexico Per Diem and Mileage Act or other Department approved per diem rates;
2.Health and welfare benefits; 3. Retirement fund benefits; 4. Vacation benefits; and,
5.Other benefits required by collective bargaining agreements or other employment Contract, applicable to the class of labor. The Department will pay an amount equal to 30 percent of the su m of the direct labor costs and fringe benefits. This payment is in compensation in the following increments: field office overhead (10 percent), home office overhead (10 percent) , and profit (10 percent). 109.6.2 Bond, Insurance, and Tax The Department will pay the Contractor either: Option 1 The actual cost of the following, plus six percent (6%):
1.Property damage, liability, and worker’s compensation insura nce premiums;
2.Unemployment insurance pr emiums or contributions;
3.Applicable payroll taxes (not i ncluding gross receipts taxes ); and,
4.Social Security taxes. To recover actual costs, the Contractor shall provide actual in voice costs of the rate(s) it has paid for bonds, insurance, and taxes. Option 2 In lieu of supplying the above ev idence and recovering actual c osts:
1.The Contractor shall receive payment at a rate representing 30% of the labor costs for labor burden; and
2.The Contractor shall also receive payment for the additional costs to Contract Bonds supported by invoice(s). 109.6.3 Materials The Department will pay the Contractor the actual cost of Mater ials Accepted by the Project Manager and incorporated into the Force Account Work, i ncluding transportation charges paid by the Contractor (exclusive of Equipment rentals) , plus 15% of the Material cost. 109.6.4 Equipment Section 109: Measurement and Payment Page 86 For special Equipment (other than small tools as defined by the Blue Book), including fuel and lubricants and transportation costs, the Department will pa y rental rates as determined in accordance with Section 109.2, “ Approved Equipment Rental Rates ,” unless otherwise agreed in writing. 109.6.5 Miscellaneous The Department will not pay for other costs not specifically ad dressed in Section 109.6, “Force Account.” 109.6.6 Documentation The Project Manager will use the Department approved forms to t rack Force Account costs. The Contractor shall compare and reconcile records with the Project Manager daily, or as otherwise directed by the Project Manager, to determine the amount of Force Account Work completed by the Contractor. 109.6.7 Statements The Department will not pay for Force Account Work until the De partment verifies that the Force Account Labor, Material, and Equipment forms are supporte d by the documents below. The Contractor shall furnish the Project Manager with itemized statements of the cost of the Force Account Work detailed as follows:
1.Name, classification, date, daily hours, total hours, rate, and extension for each laborer and foreman;
2.Attachments verifying Equipment brand, year of manufacture, operating Specifications, dates of use, daily hours, total hours, current Blue Book rental rate, and rate of applicable attachment for each piece of Equipment;
3.Quantities of Materials and prices; and, 4. Transportation of Materials. Statements shall be supported by receipted invoices for all Mat erials used and for transportation charges. For in-st ock Materials or Materials fu rnished by the Contractor, the Contractor shall provide an affidavit certifying that such Mate rials were taken from the Contractor’s stock, that the quantity claimed was actually used , and that the price and transportation claimed represent the actual cost to the Contrac tor. This requirement does not waive the Contractor’s responsibility to provide Certificates o f Compliance per Section 106.4, “Certificates of Compliance.” The total payment made as provi ded above shall constitute full compensation for Force Account Work authorized in writing by the Department. 109.7 ELIMINATED ITEMS Should Pay Items contained in the Contract become unnecessary f or the reasonable completion of the Work, the Project Manager may direct the Cont ractor, in writing, to eliminate Pay Items from the Contract. T his written notification will no t invalidate the Contract. The Department will reimburse the Contractor for actual Work comple ted before the written notification at Bid Item Unit Price. The total cost of return freight, handling, and restocking for Materials associated with that eliminated Work will then be increased by 15%. If Materials ca nnot be returned, the Department will pay for said Materials at Contractor’s actual c ost and take ownership. 109.8 PROGRESS PAYMENTS The Contractor shall not construe any Progress Payment to be an Acceptance of any defective Work or improper Material. The Acceptance of Work for the purposes of Progress Payments do es not constitute Final Acceptance of the Work. The Department will make Progress Payments once each month. Th e Project Manager will prepare and post Progress Pa yments based on estimates of t he value of the Work performed and Materials complete-in-place, and in accordance wi th Section 109.9, “Stockpile” and minus price reductions within five (5) Days of the estimate cut-off date. The Department will include monies associated with an Accepted and fully executed Change Order when the Work is Accepted with the next Progress P ayment. The Project Manager shall process a Progress Payment on a month ly basis regardless of the dollar amount, including zero dollar ($0.00), owed the Cont ractor. The Department has the authority to withhold Progress Payments in part or in their entirety as part of a suspension. 109.8.1 Retainage The Department will make Progress Payments to the Contractor in accordance with Section 109.8, “Progress Payments.” The Department will pay 10 0% of the value of Work performed and Materials complete in place in accordance with Se ction 109.9, “Stockpile,” until the sum of the Progress Payments made equals 95% of the Total O riginal Contract Amount as amended by Change Order. The Department will continue to make additional Progress Payments in the sum of zero dollars ($0.00) after the Total Ori ginal Contract Amount as amended by Change Order equals 95% and until the Contractor com pletes the Work in an Acceptable manner. The five percent (5%) retained when the Pro gress Payments equals 95% of the Total Original Contract Amount as amended by Change Orde r is the amount considered necessary to protect the interests of the public and the Depart ment; those interests include ensuring that the Work is Acceptable, on schedule, in complianc e with the Contract, and that the Work reaches Substantial Completion and Final Acceptance. Subject to other deductions the amount retained shall be provided to the Contractor in acco rdance with Section 109.10, “Project Closure.” 109.8.2 Non-Conformance If the Contractor fails to comply with all Material terms and conditions of the Contract the Department may withhold an additional 25% as a Non-Conformance from each Progress Payment and subsequent Progress Payments in addition to Retaina ge until the Contractor fully complies with the Contract. Release of Non-Conformance w ithholdings shall be processed at the next scheduled Progress Payment after the reso lution of the Non- Conformance. Nothing in this section prevents the Department from withholdin g application and certification for payment because of the following: unsatisfac tory job progress, defective construction not remedied, disputed Work, third party Claims fi led or reasonable evidence that a Claim will be filed, failure of the Contractor to make timely or prompt payments for labor, Equipment, and Materials, damage to the Department, reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract, or for Retainage. The Contractor is not entitled to late payment charges, includi ng late payment charges pursuant to NMSA 1978, § 13-1-158, associated with any payment retained under this Section. 109.8.2.1 Automatic Non-Conformance These items do not follow the Potential Non-Conformance process below. The failure to comply will automatically result in the issuance of a Non-Confo rmance and withholding of an additional 25% as a Non-Conformance from each Progress Payment. The following items shall be provided in the timefram es in their respective section :
1.The Certificate of Compliance per Section 106.4, “Certificat es of Compliance” for Materials that are required to be Buy America compliant per Sec tion 106.12, “Buy America Requirements;”
2.Schedule submittals within t he timeframes in Subsection 108. 3, “Schedule;”
3.Prime Contractor’s certified pa yrolls complete submittal wit hin the timeframe in the “Federal Requirements” Notice to Contractors; and,
4.The Contractor’s prompt payment to its Subcontractor for und isputed Accepted Work. 109.8.2.2 Potential Non-Conformance For all other terms of the Contract, that the Contractor fails to comply with the Department will issue a Notice of Potential Non-Conformance. T he Notice of Potential Non- Conformance will be issued on the current Department form and t he Contractor shall have five
5.Days after the Progress Payment cutoff date to resolve the issues listed on the form. If the Contractor resolves all issues on the Notice of Potentia l Non-Conformance within five (5) Days after the Progress Payment cutoff date then no ac tion to withhold the 25% Non- Conformance amount is taken by the Department. If the Contract or does not resolve each issue on the Notice of Potential Non-Conformance within five (5 ) Days after the Progress Payment cutoff date then the Department will withhold an additi onal 25% as a Non- Conformance from each Progress Payment and subsequent Progress Payments in addition to Retainage until the Contractor fully complies with the Contract . For Safety Items the Department will include a timeframe to res olve the issue in the Notice of Potential Non-Conformance that may be other then five (5) Days after the Progress Payment cutoff date. If the Contractor fails to resolve the sa fety issue in the Notice of Potential Non-Conformance in timeframe then the Department will withhold an additional 25% as a Non-Conformance from each Progress Payment and subsequent Progress Payments in addition to Retainage until the Contractor fully complies with the Contract . 109.9 STOCKPILE Only items identified in the Notice to Contractors titled “Stoc kpile” are eligible for Stockpile payment. 109.9.1 Stockpile Payment After measurement, partial (stockpile) payments to the Contract or may be made for Items on hand not to exceed 50% of the Bid Item price under the follo wing conditions:
1.The Items will be incorporated in the Work; Section 109: Measurement and Payment Page 89 2. The Items are delivered to the Project or to a storage place approved by the Project Manager;
3.The delivered Items meet the requirements of the Contract, i ncluding Certificates of Compliance per Section 106.4, “Ce rtificates of Compliance;” and ,
4.The Contractor submits paid invoices, certified by the Suppl ier or Fabricator, to the Project Manager.
109.10 Project Closure
Step I. Contractor Notice of Projected Substantial Completion Date Step II. Completion Conference Step III. Termination of Contract Time Step IV. Project Inspection and Development of Punch List Step V. Notice of Punch List C ompletion and Request of Final I nspection Step VI. Final Inspection Step VII. Contractor Submitta l of Final Documentation Step VIII. Physical Completion and Release of Retainage and Fi nal Payment
109.10.1 Contractor Notice of Projected Substantial Completion Date
The Contractor shall provide written notification to the ADE-Co nstruction of the projected Substantial Completion date. This notice shall be provided a m inimum of 30 Days prior to the projected date unless otherwise approved by the Project Manager .
109.10.2 Completion Conference
Prior to the projected Substantial Completion date, the ADE-Con struction and the Project Manager shall conduct a completion conference with the Contract or to review the Project and determine conformance with the Contract. The Department and Co ntractor will address all outstanding Work needed for Substantial Completion. The Depart ment and Contractor will agree on the schedule for completion of all Work necessary for Project Closure pursuant to Within five (5) Days of the completion conference or as directe d by the Project Manager the Contractor shall submit for approval by the Project Manager the Contractor’s proposed updated schedule for Project Closure.
109.10.3 Termination of Contract Time and Determination of Subs tantial Completion
After the steps I and II of Project Closure are complete and th e Contractor has determined it is ready to request Substantial Completion, the C ontractor shall provide to the ADE-Construction a written request to determine Substantial Com pletion. Within two (2) Days of receipt of the request for Substantial Completion the ADE-Co nstruction will issue a determination of Substantial Completion, Contract Time or, if a pplicable, Liquidated Damages assessments will cease upon Substantial Completion.
109.10.3 1 Rescinding Substantial Completion
The Department may rescind Substantial Completion by written no tice when any of the conditions for Substantial Completion in the definition of Subs tantial Completion are no longer met. Substantial Completion may also be rescinded by the Depar tment when Department Ordered Work per Section, 104.2.3 “Department Ordered Work” is required.
109.10.4 Project Inspection and Development of Punch List
The Project Manager shall inspect the Project to verify that al l Work is complete or develop Punch List items upon the determination of Substantial Completion. The Project Manager shall provide the Contractor written notice that all Wo rk is complete or shall provide a Punch List. Contract Time shall resume if the Contractor fails to provide Acceptable Work associated with the Punch List within the agreed upon schedule that shall not exceed thirty
30.Days and resumed Contract Time shall continue until all Pu nch List Work is Accepted.
109.10.5 Notice of Punch List Completion and Request of Final I nspection
The Contractor shall provide written notification to the Projec t Manager that the Punch List is complete and request final inspection.
109.10.6 Final Inspection
The final inspection by the Proj ect Manager and the ADE - Const ruction will be scheduled and conducted within five (5) Days of the Contractor’s written request for final inspection. If the inspection reveals unacceptab le or unsatisfactory Work, the Project Manager shall give the Contractor written instructions for correction and set the time limit for the Contractor to comply with these instructions. Upon the Contractor’s correction of t he Work, written notification shall be provided to the Project Manager, the Project Manager shall m ake an additional inspection and notify the Contractor within four (4) Days of the findings. If the Project Manager and the ADE - Construction are satisfied that the Work is complete and Acceptable, that inspection shal l constitute the final inspecti on. The Project Manager shall provide written notification of the final inspection Acceptance to the Contractor within four (4) Days. The Department will Accept the Project as soon as practicable a fter completion and inspection of the Work. Acceptanc e is final and conclusive, ex cept for the following situations:
1.Latent defects; 2. Fraud;
3.Gross mistakes that amount to fraud; or,
4.The Department’s warranty or guaranty rights.
109.10.7 Contractor Submittal of Final Documentation
The Contractor shall submit a schedule for submittal of the fol lowing documents required by the Contract including the Final Payment Voucher, Certificat e of Payment of Claims, Summary to Contractor, Pit Release Letter, additional named ins ured Insurance Bonding Release, Affidavit of Wages Paid, and Surety Release within fiv e (5) Days of the date of the written notice of final inspecti on Acceptance. For the Pit Rel ease Acceptance by the Project Manager of a letter of intent from the landowner for future use may exempt haul Roads or other areas from their vegetation requirements. The Contractor shall furnish a completed Certificate of Payment o f C l a i m s f o r m f r o m persons or firms, including the Contractor, who have filed Clai ms for additional compensation, for labor performed, or for Material, supplies, or services fur nished to the Contractor or its Subcontractors. Section 109: Measurement and Payment Page 91 The Department shall withhold final payment and no late payment interest shall be due for the withheld payments until the Contractor furnishes all do cuments required by the Contract.
109.10.8 Physical Completion, Release of Retainage, Final Payme nt and Final
Acceptance Upon the completion of steps I through VII of Project Closure the ADE-Construction shall provide a written determination of Physical Completion to the C ontractor. The Department shall not release retained amoun ts until Physical Completion an d when the Contractor fully complies with all Contract requirements. Until Physical Completion of the Project, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damag e to any part thereof, by the action of the elements or from other causes, whether arising fr om the execution or from the non-execution of the Work. The Department shall prepare an estimate summary to the Contrac tor which is used for the proposed final payment voucher. The proposed final payment voucher shall correct all prior Progress Payments and release Retainage. The Department shall withhold from the proposed final payment voucher li quidated damages and overpayme nts. The Contractor shall sign, approve and return the Department’s final payment voucher . Upon receipt of a signed and approved final payment voucher the Department shall Accept the Work and pay the balance due on the final payment voucher. The Department payin g the balance due on the final payment voucher cons titutes Final Acceptance. If the Contractor disputes the final payment voucher, then the Contractor shall submit the Notice of Intent to Claim form within seven (7) Days of receipt of the final payment voucher. The Contractor shall not change or modify the final payment vou cher. If a clerical error on the final voucher is discovered the Contractor shall notify the Pro ject Manager in writing before the seven (7) Day expiration. If t he Project Manger agrees that th ere is clerical error, the Project Manager will correct the error and reissue the final payment vo ucher. If the Project Manager does not agree the Project Manager shall notify the Contractor in writing and the Contractor shall have seven (7) Days of receipt to sign the final payment voucher or submit a Notice of Intent to Claim. If the Contractor submits a Notice of Intent to Claim form or the timeframe to submit the Notice of Intent to Claim form expires, the Departme nt shall Accept the undisputed Work, pay the undisputed balance unilaterally due on the final payment voucher. A Claim is forever barred if the Claim is not timely and properly submitte d pursuant to Section 105.19, “Notice of Intent to Claim” within seven (7) Days of receipt of the Department’s proposed final payment voucher. The Department paying the balance due on the final payment voucher constitutes Final Acceptance. Upon Final Acceptance the Department will complete its administ rative process to close the Project. Project Closure occurs when the State Constructio n Engineer or designee signs the compass form.
109.10.9 Department Requests for Reimbursement or Refund
The Contractor shall reimburse or refund the Department for any o v e r p a y m e n t i n response to a request for refund of overpayment within 30 Days of the Department’s request. Failure by the Contractor to comply may subject the Contractor to default and to rejection of the Contractor’s Bids in accordance with Section 102.5, “Reject ion of Bids,” until such time that Contractor complies with this Section.
109.11 Compensation for Claims
The Contractor is not entitled to late payment charges, includi ng late payment charges pursuant to NMSA 1978, § 13-1-158, associated with any Claim or disputed construction services and Materials. The Department will pay the Contractor late payment charges as authorized by NMSA 1978, § 13-1-158 for construction services a nd Materials not the subject of a disputed Claim or subject to Retainage or withheld Progres s Payments and that have been certified by the Department to have been received and Acce pted. The Department will pay the Contractor late payment charges on undisputed, qualifie d, Delayed Progress Payments for certified, approved and Accepted Work in accordanc e with Section 109.8, “Progress Payments” that are not the subject of a disputed Clai m. The Contractor is barred from seeking a Claim, a remedy, compen sation, time, cause of action, or any damages except as provided by Section 105.19, “N otice of Intent to Claim,” and Section 105.20, “Administrative Remedy,” and this Section. The Contractor shall not be entitled to any consequential, indi rect, punitive, exemplary, special, or incidental damages. When the Department determines entitlement the Contractor shall only receive additional c ompensation and time as specifi cally provided by the following Sections of these Specificati ons: Section 104.2.1, “Significan t Change in the Character of the Work;” Section 104.2.2, “Differi ng Site Conditions;” Section 10 4.2, “Extra Work;” Section
107.10 3, “Cooperation with Owner of Railroad Right of Way;” Se ction 107.20, “Contractor’s
Responsibility to Protect the Work;” Section 108.6, “Determinat ion and Extension of Contract Time;” Section 108.10, “Termination of Contract; No Fault of Co ntractor;” Section 109, “Measurement and Payment;” and this Section. Except as otherwise agreed to by the Contractor and the Departm ent in a written Change Order, all Claims and causes of action arising out of the perfo rmance and administration of the Contract shall be governed by this Section including: Claims f or Delay, Claims for additional compensation and time, Contract adjustment, Claims seeking exte nsion of Contract Time, Claims seeking Delay damages, pass-through Subcontractor Claims , causes of action for breach of Contract, promissory estoppel, equitable estoppel, wa iver, detrimental reliance, bad faith breach of Contract, breach of the covenant of good faith and fair dealing, or any other cause of action arising out of the performance of the Work or t he Contract. The compensation, time and damages provided for in this Section are exclusive, complete, and apply regardless of whether such Claims are to be resolved purs uant to the procedures set forth in Section 105.20, “Administrative Remedy,” or any other legal or administrative procedure, whether or not authori zed herein, including arbitrat ion, mediation, or appeal.
109.11.1 Non Critical Disruption
Non-critical Disruption is a dis ruption or interference with Co ntractor’s performance, regardless of cause, that does not negatively impact the Critic al Path of the Project and therefore does not meet the definition of a Delay and for which the Contractor will not be entitled to receive Delay com pensation per Section 109.11.2.2, “Additional Time for Delay.”
109.11.2 Delay
“Delay”, in this section, does not include time extensions gran ted by the Department by Change Order in accordance with Section 108.6, “Determination a nd Extension of Contract Time” that do not result in any additional compensation. The Contractor’s entitlement to compensation and time for a Del ay is defined, limited to, and provided as follows: Section 109: Measurement and Payment Page 93 1. Excusable Delay: A Delay which is beyond the Contractor’s c ontrol that negatively impacts the Critical Path of t he Project and is not caused, by the Contractor’s fault or negligence and for which compensation and/or a time extensio n may be granted, based upon the following:
a.Excusable Compensable Delay: An Excusable Delay that negati vely impacts the Critical Path of the Project resulting from the neglect or default of the Department or from a differing site conditions per the section for differing site conditions. For such Delays, th e Department may grant addition al time and compensation. Examples of an excusable Compensable Delay may i nclude but are not limited to Delays attributable to design errors or a differing site condition not readily discovered through Pre-Bid Due Diligence, failure by the Department to acquire Right of Way, and Department-initiated de sign changes;
b.Excusable Non-compensable De lay: An unforeseen and unantici pated Excusable Delay not caused by the fault of either the Contracto r or the Department that negatively impacts the Critical Path of the Pro ject. For such Delays, the Contractor may receive an extension of time but not additional compensation. Examples of a Non-compensable Delay may include but are not limited to those events described in Subsection 107.20, “Co ntractor Responsibility.”
2.Inexcusable Delay or Non-excusable Delay: A Delay for which the Contractor is not entitled to compensation and/or time that was caused by: facto rs within the Contractor’s control; the fault or responsibility of the Contra ctor; factors that could or should have reasonably been foreseen by the Contractor; Delays caused by an event that the Contractor could have foreseen and prevented but failed to do so; or failure to reasonably mitigate additional Delay after an excusa ble Delay has been identified. Examples of inexcusable or non-excusable Delays ma y include but are not limited to those attributable to reasonably expected season al inclement weather events based on historical data, reasonable time periods necess ary for reviews of shop drawings by the Department, inefficient operation by the C ontractor or Subcontractor, inefficient or i neffective construction manageme nt by the Contractor or Subcontractor, failure to assign sufficient resources to the P r o j e c t b y t h e Contractor or its Subcontractor, failure by the Contractor to p roperly perform Pre-Bid Due Diligence, or failure by the Contractor, Subcontractor or S upplier to procure Materials in a timely manner.
3.Concurrent Critical Delay: Concurrent Delay only occurs whe n the Project has two
2.separate Critical Paths that have two (2) separate Delays w hich start and end on the same date, delaying the Project for the same amount of time . For Delays that start on the same date but are resolved at different dates the Contractor is not entitled to any time or additional compensation for the duratio n when a non- excusable or inexcusable Delay o ccurs on either of the Critical Paths. When an excusable compensable Delay and excusable non-compensable Delay a r e concurrent as defined above the Contractor shall only be entitl ed to Contract Time and not any additional compensation.
109.11.2 1 Additional time for Delay
The Department may only add Contract Time for an Excusable Comp ensable Delay or an Excusable Non-compensable Delay using the Accepted updated mont hly or revised schedules current and in effect at the time the Delay occurred.
109.11.2 2 Compensation for Delay
The Department may only compensate the Contractor for an excus able compensable Delay as provided in this Section and in the following order of priority and no other methods of Section 109: Measurement and Payment Page 94 calculating compensation will be Accepted. In order to receive compensation for a excusable compensable Delay the Contractor shall document and provide cos ts resulting from the excusable compensable Delay usi ng actual cost records, shall me asure and provide expenses using generally Accepted accounti ng principles, and shall compl y with Section 108.3.2, “Schedule Format,” and if an agreement about the extension of C ontract Time cannot be reached then the Contractor shall comply with Section 108.6, “D etermination and Extension of Contract Time.”
I.The Department reserves the right to use innovative bidding approaches, as specified in the Contract, in cluding requiring Bidders to bid a daily overhead rate (cost / Working Day) as a Bid It em Unit Price. For example the C o n t r a c t m a y require that the Contractor escrow its Bid documents, and the e scrow Bid Documents may be consider ed in resolving Claims. II. The compensation which the Contractor may recover for a Del ay Claim is limited to:
1.Non-salaried labor expenses; 2. Material costs;
3.Equipment costs pursuant to Se ction 109.2, “Approved Equipme nt Rental Rates;”
4.Costs of extended job site overhead, including bonds; or,
5.An additional ten percent (10%) of the total of items 1, 2, 3 , a n d 4 t o c o v e r home office overhead, salaried labor expenses, and profit. III. If the source of the loss of productivity can be attribute d to an excusable compensable Delay and cannot be isolated and priced separately, the method by which the Department shall calculate the extent of an excusable compensable Delay caused by a production rate ineffi ciency shall be made in the f ollowing order of priority:
1.Measured Mile analysis by which the Department shall compare actual efficiency (production rates) in an impacted area to actual eff iciency in a comparable non-impacted area; or,
2.Comparison of actual productivity to production rates in the Contractor’s Baseline Schedule and timely submitted Acceptable updated month ly or revised schedules or in the escrow bid Documents.
109.11.2 3 Non-Recoverable Damages
In no event shall the Contractor submit or be entitled to payme nt based on any of the following including but not limited to Eichleay formula, the To tal Cost Method, original Contract period formula, fixed overhead formula, burden fluctuation meth od, and comparative absorption rates. Regardless of the basis or cause of the Claim, the Contractor s hall not recover and is not entitled to recover the following categories of damage:
1.Any compensation except as provided by Section 109.11.2.2, “ Compensation for Delay;”
2.Loss of anticipated pr ofit, incentives, or bonuses;
3.Labor inefficiencies at the fault of the Contractor; 4. Home office overhead regardless of whether it is characteriz ed as absorbed, unabsorbed, or extended exceeding that provided in Section 109. 11.2.2, “Compensation for Delays;”
5.Any damages, costs or expenses that are indirect, special, i ncidental or consequential, including, but not limited to, lost or impaired bonding capacity, loss of Section 109: Measurement and Payment Page 95 Bidding and contracting opportuni ties, loss of credit standing, cost of financing, interest paid, lost Material discounts, economic loss, loss of reputation, loss of other Work, loss of use, loss of business opportunity, loss of produc t or output, income, loss of profit or revenue, cost of capital, financing, and for loss of management or employee productivity or of the services of such persons, and b usiness devastation, bankruptcy, or insolvency. The Department waives any entitleme nt to consequential damages from the Contractor but not general damages including b ut not limited to liquidated damages as provided in the Contract;
6.Acceleration costs and expenses. The Contractor shall only be entitled to acceleration costs and expenses if the Department has expressly and specifically directed the Contractor in writing to accelerate the Work at th e Department’s expense, the Contractor completes the Work within the time dire cted by the Department, the Contractor actua lly incurs acceleration costs a nd expenses, and the Contractor provides verifiable documentation to support the acceleration costs and expenses;
7.Late payment charges, including late payment charges pursuan t to NMSA 1978, § 13-1-158, associated with any Claim, or disputed construction s ervices or Materials. The Contractor is also not entitled to late payment charges on any judgment or award made to the Contractor. This provision does not affect t he Department’s payment of late payment charges on undisputed, qualified, Delay ed Progress Payments for certified, approved and Accepted Work in accordanc e with Section 109.11, “Compensation for Claims ” that are not the subject of a disputed Claim;
8.Prejudgment or post-judgment int erest related to or arising from any disputed Claim or on any Award made to the Contractor; or,
9.Attorneys’ fees and costs, Claim preparation expenses, and l itigation or other costs related to or arising from any d isputed Claim, or prosecution t hereof. Division: 2 0 0 Page 96 DIVISION 200 – EARTHWORK
Division C — ontents
201: Clearing and Grubbing. ................................... ....................... 96 203: Excavation, Borrow, and Embankment ....................... ........... 99 203-A: Unstable Subgrade Stabilization ........................ .................... 113 206: Excavation and Backfill for Culverts and Minor Structures ..... 116 207: Subgrade Preparation ..................................... ....................... 119 209: Blading and Reshaping .................................... ...................... 120 210: Excavation and Backfill for Major Structures ............. ............. 122 213: Obliterating Old Road .................................... ......................... 126 Division: 2 0 0 Page 96 DIVISION 200 – EARTHWORK
Division C — ontents
201: Clearing and Grubbing. ................................... ....................... 96 203: Excavation, Borrow, and Embankment ....................... ........... 99 203-A: Unstable Subgrade Stabilization ........................ .................... 113 206: Excavation and Backfill for Culverts and Minor Structures ..... 116 207: Subgrade Preparation ..................................... ....................... 119 209: Blading and Reshaping .................................... ...................... 120 210: Excavation and Backfill for Major Structures ............. ............. 122 213: Obliterating Old Road .................................... ......................... 126 Section 201: Clearing and Grubbing Page 97
Source: New Mexico Standard Specifications for Highway and Bridge Construction, 2019 Edition. Pages 0–0 of 974.