107.22 51 Also require that this contractual obligation be placed in all subcontractor and supplier contracts that it enters into and further require that all subcontractor and suppliers place the same payment obligation in each of their lower tier contracts. If the Contractor, subcontractors, or supplier subject to this provision fail to comply with the 10 Calendar Day requirement, the offending party shall pa y, in addition to the payment due, interest in the amount of 18 percent per annum of the payment due, beginning on the eleventh Calendar Day following the receipt of payment from the Department and ending on the date of full payment of the payment due plus interest. Repeated failures to pay subcontractors and suppliers timely pursuant to this subsection will result in a finding by the Department that the Contractor is in breach of Contract and subject to all legal consequences that such a finding entails. Further, repeated failures to pay timely pursuant to this subsection will result in a lower evaluation score for the Contractor and those subcontractors who are subject to evaluation by the Department. 107.2 2 Unmanned Aircraft Systems . If the project requi res or anticipates the use of Unmanned Aircraft Systems within ODOT Right of Way, the Contractor will follow proper risk assessment and federal regulations in accordance with Supplement 1132 . 108 PROSECUTION AND PROG RESS
108.01 Subletting of the Contract . Perform Work amounting to not less than
50 percent of the Contract Price with its own organization, unless otherwise approved by the Director. The phrase “its own organization” includes only workers employed and paid directly, inclusive of employees who a re employed by a lease agreement acceptable to the Department, and equipment owned or rented with or without operators by the Contractor. The phrase does not include employees or equipment of a subcontractor, assignee, or agent of the Contractor. Obtain th e Director’s written consent to subcontract, sublet, sell, transfer, assign, or otherwise relinquish rights, title, or interest in the Work. Provide the Director with a copy of all Disadvantaged Business Enterprise subcontracts. The Contractor’s percentage of the total Contract Price includes the cost of materials and manufactured products purchased by the Contractor, but not the cost of materials and manufactured products purchased by subcontractors. The Director will calculate the Contractor’s percentage based on the quantities shown in the Proposal and the unit prices of the contract items to be performed by the Contractor’s organization. If the Contractor performs only a portion of a contract item, then the Director will determine the proportional value administratively on the same basis. The Director will follow this procedure even when the part not subcontracted consists only of the procurement of materials. However, if a firm both sells the materials to the Contractor and performs the Work of incorpora ting the materials into the Project, then the Department will consider these two phases in combination and as a single subcontract. If an affiliate of the firm either sells the materials or performs the Work, the Department may refuse approval. An affiliate is one who has some common ownership or other close relation to said firm. 108.02 52 Use actual subcontract prices for calculating compliance with any Disadvantaged Business Enterprise (DBE) percentage subcontracting obligations. If only a part of a contra ct item is sublet, then determine its proportional value administratively on the same basis. The Director will follow this procedure even when the part not sublet consists only of procuring materials. However, if a firm both sells the materials to the Cont ractor and performs the work of incorporating the materials into the Project, then the Department will consider these two phases in combination and as a single subcontract. If an affiliate of the firm either sells the materials or performs the Work, the De partment may refuse approval.
108.02 Partnering . It is the intent of the Department to partner every project.
The purpose of Partnering is to develop a proactive effort and spirit of trust, respect, and cooperation among all stakeholders in a project. Partnering does not affect the terms and conditions of the Contract. The Partnering process in this section is Self - facilitated Partnering performed by the Project personnel. Costs associated with the Self-facilitated Partnering process are incidental to the C ontract.
A.Preconstruction Meeting. Meet with the Engineer for a Preconstruction Meeting before beginning the Work. At or before the meeting, submit the initial progress schedule to the DCE. Prepare the schedule according to 108.03. Furnish a list of proposed subcontractors and material suppliers at or before the Preconstruction Meeting. If the Contractor fails to provide the required submissions at or before the Preconstruction Meeting, the Engineer may order the meeting suspended until they are furni shed. Do not begin the Work until the meeting is reconvened and concluded or the Engineer gives specific written permission to proceed.
B.Initial Partnering Session. In conjunction with the Engineer, determine whether the Initial Partnering Session will be conducted as part of the Preconstruction Meeting or as a separate meeting. Partnering shall have its own agenda with specific time set aside to develop the necessary partnering protocols. Develop the Partnering agenda with the Engineer. Identify and in vite all stakeholders necessary to make the Project successful including utility companies, other transportation entities (i.e., railroads), community leaders, all Project participants including subcontractors. During the Initial Partnering Session, consi der developing Partnering teams consisting of Department and Contractor senior personnel and Project personnel. Consider the following items for discussion:
1.Identifying and developing a consensus on project goals consistent with the contractual obligati ons, including specific goals concerning safety, quality, schedule, and budget.
2.Deciding how the teams will measure progress on Project goals.
3.Identifying any potential risks to the Project’s success, mitigation strategies and an implementation plan for the appropriate strategies. 108.02 53 4. Defining key issues, project concerns, joint expectations, roles of key partnership leaders, lines of decision making authority, and share relevant information to help determine the scope of the Partnering efforts.
5.Identifying any opportunities for project enhancement, enhancement strategies and a specific action plan for implementing strategies.
6.Developing a communication protocol to enhance communication on the Project
7.Developing an issue identification and res olution process that identifies and attempts to resolve issues at the level closest to the work. The issue identification and resolution process will develop all the necessary steps for issue elevation including Notice and Mitigation defined in 108.02.F an d the Dispute Resolution and Administrative Claims Process defined in 108.02.G.
C.Progress Meetings. Hold monthly Progress Meetings unless the frequency is otherwise determined at the Preconstruction Meeting. Coordinate with the Engineer to determine age nda topics prior to each meeting. The purpose of Progress Meetings is to keep open communication between the Contractor and the Engineer. The senior personnel team is encouraged to participate in all Progress Meetings. Include Partnering as an agenda item at the Progress Meetings.
D.Post-milestone Meeting. In conjunction with the Engineer, determine whether the Post -milestone Meeting will be conducted as part of the Progress Meeting or as a separate meeting for multi -year, multi -phase, or projects with cri tical items of work or milestone dates. Consider discussing and updating items from the Initial Partnering Session in addition to items specific to the Project. All stakeholders should be invited to attend.
E.Partnering Monitoring. Monitor the progress of the Partnering relationship based on the goals decided during the Initial Partnering Session. On-line surveys of Project participants may be used to monitor progress on Project goals and help identify issues as they arise. The on -line surveys are consiste nt with the Department’s Partnering Project Rating Form which is located on the Division of Construction Management’s Partnering website: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx
F.Mitigation and Notice. Mitigation of any issue, whether caused by the Department, Contractor, third -party or an intervening event, is a shared contract and legal requirement. Mitigation efforts include, but are not limited to, re -sequencing work activities, acceleration, and substitution of mate rials. The Contractor and Engineer must explore and discuss potential mitigation efforts in a timely manner.
1.Contractor Initial Oral Notification. Provide immediate oral notification to the Engineer upon discovering a circumstance that may require a re vision to the Contract Documents or may result in a dispute. Upon notification, the Engineer will attempt to resolve the identified issue as quickly as possible.
2.Contractor Written Early Notice. If the Engineer has not resolved the identified issue with in two (2) working days after receipt of oral notification, provide written notice to the Engineer of any circumstance that may require a revision to the 108.02 54 Contract Documents or may result in a dispute. This early notice must be given by the end of the secon d working day following the occurrence of the circumstance. The Engineer and Contractor shall maintain records of labor, equipment, and materials used on the disputed work or made necessary by the circumstance. Such records will begin when early notice is received by the Engineer. Tracking such information is not an acknowledgement that the Department accepts responsibility for payment for this disputed work. If an issue is not resolved through the initial mitigation efforts, either abandon or escalate to the Dispute and Administrative Claims Process defined in 108.02.G.
G.Dispute Resolution and Administrative Claims Process. Whenever an issue is elevated to a dispute, the parties shall exhaust the Department’s Dispute Resolution and Administrative Claim process set forth below as a condition precedent to filing an action in the Ohio Court of Claims. The following procedures do not otherwise compromise the Contractor’s right to seek relief in any Ohio Court with legal jurisdiction. All parties to the dispute must adhere to the Dispute Resolution and Administrative Claim process. Do not contact Department personnel who are to be involved in a Step 2 or Step 3 review until a decision has been issued by the previous tier. Department personnel involved in Step 2 or Step 3 reviews will not consider a dispute until the previous tier has properly reviewed the dispute and issued a decision. Failure to meet any of the timeframes outlined below or to request an extension will terminate further review of the dispu te and serve as a waiver of the Contractor’s right to file a claim. Disputes and claims by subcontractors and suppliers may be pursued by the Contractor on behalf of subcontractors or suppliers. Disputes and claims by subcontractors and suppliers against the Department but not supported by the Contractor will not be reviewed by the Department. Disputes and claims of subcontractors and suppliers against the Contractor will not be reviewed by the Department. Continue with all Work during the Dispute Resoluti on and Administrative Claims process, including that which is in dispute. The Department will continue to pay for Work. The Department will not make the adjustments allowed by 104.02.B,
104.02 C, and 104.02.D if the Contractor did not give notice as specif ied in
108.02 F.1 and 108.02.F.2. This provision does not apply to adjustments provided
in Table 104.02 -2.
1.Step 1 (On -Site Determination). The Engineer will meet with the Contractor’s superintendent within two (2) working days of receipt of the Contract or Written Early Notice set forth in 108.02.F.2. They will jointly review all pertinent information and contract provisions and negotiate in an effort to reach a resolution. The Engineer will issue a written Step 1 decision within fourteen (14) calendar da ys of the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 2. 108.02 55 2. Step 2 (District Dispute Resolution Committee). Each District will establish a District Dispute Resolution Committee (DDRC) which will be responsible fo r hearing and deciding disputes at the Step 2 level. The DDRC will consist of the District Deputy Director, District Construction Engineer and the Capital Program Administrator or designees (other than the project perso nnel involved in the dispute) . Within seven (7) calendar days of receipt of the Step 1 decision, either abandon the dispute or submit a written request for a Step 2 meeting to the District Construction Engineer (DCE). The DCE will assign the dispute a dispute number. Within fourteen (14) calendar days of submitting the request for a Step 2 meeting, submit three (3) complete copies of the Dispute Documentation to the DCE as follows :
a.Identify the Dispute on a cover page by count y, project number, Contractor name, subcontractor or supplier if involved in the dispute, and the dispute number.
b.Clearly identify each item for which additional compensation and/or time is requested.
c.Provide a detailed narrative of the disputed work or project circumstance at issue. Include the dates of the disputed work and the date of early notice.
d.Reference the applicable provisions of the plans, specifications, proposal, or other contract documents in dispute. Include copies of the cited provi sions in the Dispute Documentation.
e.Include the dollar amount of additional compensation and length of contract time extension requested.
f.Include supporting documents for the requested compensation stated above.
g.Provide a detailed schedule analy sis for any dispute involving additional contract time, actual or constructive acceleration, or delay damages. At a minimum, this schedule analysis must include the Schedule Update immediately preceding the occurrence of the circumstance alleged to have ca used delay and must comply with accepted industry practices. Failure to submit the required schedule analysis will result in the denial of that portion of the Contractor’s request.
h.Include copies of relevant correspondence and other pertinent documents . Within fourteen (14) calendar days of receipt of the Contractor’s Dispute Documentation, the Engineer will provide the Contractor with all documentation it intends to rely on at the DDRC meeting to rebut the Contractor’s dispute. After allowing at lea st fourteen (14) calendar days for the Contractor to review the Engineer’s Dispute Documentation, the DDRC will conduct the Step 2 meeting with Contractor personnel who are authorized to resolve the dispute. The DDRC will issue a written Step 2 decision to the Contractor and the Dispute Resolution 108.02 56 Coordinator within fourteen (14) calendar days of the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 3.
3.Step 3 (Director’s Claims Board Hearing or Alternative Dispute Resolution). Submit a written Notice of Intent to File a Claim to the Dispute Resolution Coordinator in the Division of Construction Management within fourteen (14) calendar days of receipt of the Step 2 decision. The dispute becomes a claim when the Dispute Resolution Coordinator receives the Notice of Intent to File a Claim. Include the Contractor’s request for either: 1) a Director’s Claim Board hearing on the claim or 2) Alternative Dispute Resolution (ADR).
a.Director’s Claims Board Hearing. The Direct or’s Claims Board (the “Board”) will consist of the Deputy Director of the Division of Construction Management, Deputy Director of Engineering and a District Capital Program Administrator from a district not involved in the claim, or their desi gnees. A representative from the Division of Chief Legal Counsel and Division of Opportunity , Diversity, and Inclusion may be present to observe the hearing. The Director or designee will be responsible for deciding claims .
1.Submit six (6) complete copies of the Claim Documentation to the Dispute Resolution Coordinator within thirty (30) calendar days of receipt of the Notice of Intent to File a Claim. This timeframe may be extended with approval of the Dispute Resolution Coordinator. In ad dition to the documentation submitted at Step 2:
a.Enhance the narrative to include sufficient description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.
b.Certify t he claim in writing and under oath using the following certification: “I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good faith, that all supporting data is accurate and complete to the best of my knowledge and belief, and that the claim amount accurately reflects the contract amendment for which (Contractor Company name) believes the Department is liable.” Sign and date this claim certification and have the signature notarized pursuant to the laws of the Stat e of Ohio. The date the Dispute Resolution Coordinator receives the certified claim documentation is the date of the Department’s Receipt of the Certified Claim for the purpose of the calculation of interest as defined in 108.02.G.4. The Dispute Resolution Coordinator will forward one (1) complete copy of this documentation to the District.
2.Within thirty (30) calendar days of the District’s receipt of the Contractor’s Claim Documentation, the District will submit six (6) complete copies of its Claim Documentation to the Dispute Resolution Coordinator. This timeframe may be extended with approval from the Dispute Resolution Coordinator. At a minimum, the District’s Claim Documentation should include:
a.An overview of the project 108.02 57 (b) A narrative of t he disputed work or project circumstance at issue with sufficient description and information to enable understanding by a third -party who has no knowledge of the dispute or familiarity with the project
c.The dates of the disputed work and the date of e arly notice
d.References to the applicable provisions of the plans, specifications, proposal, or other contract documents. Copies of the cited provisions shall be included in the claim document
e.Response to each argument set forth by the Contractor
f.Any counterclaims, accompanied by supporting documentation, the District wishes to assert
g.The status of the negotiations of the Claim that have occurred to-date, including the amount of any offers and counteroffers made by the parties
h.Copies of relevant correspondence and other pertinent documents
3.Within fourteen (14) calendar days of receipt of the District’s Claim Documentation, the Dispute Resolution Coordinator will forward one (1) complete copy to the Contractor and will schedule a hearing on the dispute. Once a hearing date has been established, both the Contractor and District shall provide the Dispute Resolution Coordinator with a list of names of persons who may be presenting information at the hearing. Unless otherwise perm itted by the Board, the exchange of documentation and all disclosures specified in this step of the process shall be completed at least fourteen (14) calendar days prior to the hearing. Upon request or at the Board’s discretion, the Board may delay the hearing to allow more time for preparation and review, or to fulfill requests for more documentation. The Board will hear the entire claim on behalf of the Director. The Board may have its own technical advisors at the hearing for consultation and assistance in reviewing the claim. The Contractor and District will each be allowed adequate time to present their respective positions before the Board. The Contractor and District will also each be allowed adequate time for rebuttal, limited to the scope of the opposing party’s presentation. The Board may suspend any portion of a presentation or rebuttal it deems to be argumentative, repetitive, or irrelevant to the claim. The Contractor’s position will be presented by one or more of the Contractor’s employee s who are thoroughly knowledgeable of the claim. The Contractor may have legal counsel present during the hearing to observe or for private consultation. Similarly, the District’s position will be presented by one or more District representatives who are t horoughly knowledgeable of the claim. The Board may, on its own initiative, request information in addition to that submitted for the hearing. If the Contractor fails to reasonably 108.02 58 comply with such request, the Board may render its decision without suc h information. Upon completion of the hearing and following consideration of any additional information submitted upon request, the Board will submit a written recommendation on the disposition of the claim to the Director. The Director or designee wil l ratify, modify, or reject the recommendation of the Board and render a decision within sixty (60) calendar days of the hearing. Within thirty (30) calendar days of receipt of the Board’s decision, either accept or reject the decision in writing. In the e vent the Contractor fails to do so, the Board may revoke any offers of settlement contained in the decision. The decision of the Director is the final step of the Department’s Dispute Resolution Process and may not be appealed within the Department. The Director is not bound by any offers of settlement or findings of entitlement made during Steps 1 and 2 of the Dispute Resolution Process.
b.Alternative Dispute Resolution (ADR). In lieu of the Director’s Claim Board hearing, the parties may opt to proce ed through an Alternative Dispute Resolution (ADR) Process. The parties will then choose either arbitration or mediation in the manner in which those methods are practiced by the Department and allowed by law. The Dispute Resolution Coordinator will coor dinate the agreement of the parties to the ADR method, and the selection of a neutral third -party or technical expert. The fees of the neutral third -party or technical expert will be shared equally between the Department and the Contractor. The Dispute Res olution Coordinator will obtain a written agreement, signed by both parties, that establishes the ADR process. The neutral third -party or technical expert will have complete control of the claim upon execution of the ADR agreement. Prior to any ADR meeting, certify the claim in writing and under oath using the following certification: “I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good faith, that all supporting data is accurate and complete to the best of my knowledge and belief, and that the claim amount accurately reflects the contract amendment for which (Contractor Company name) believes the Department is liable.”
4.Interest on Claims. The Department will pay interest in accordance with ORC Section 5703 .47 on any amount ultimately found due on a claim which is not paid within 30 days of the Dispute Resolution Coordinator's Receipt of the Certified Claim. However, interest will not be paid on the amount of any agreed settlement unless specifically itemiz ed and included in the total settlement prior to agreement .
H.Post Construction Meeting. The District will conduct a Post Construction Meeting with the Contractor prior to the project finalization. The District will invite the design agency and any other stakeholders deem necessary including utility companies, other transportation entities (i.e. railroads), community leaders, all Project participants including subcontractors performing critical work to attend this meeting. 108.03 59 Consider the following items fo r discussion:
1.Project Safety.
2.How were the goals evaluated or measured?
3.How were foremen/ workers involved in the Partnering process?
4.How were the subcontractors involved in the Partnering process?
5.How were relationships with key stakeholders managed?
6.Teambuilding activities or unique motivational activities.
I.Partnering Close -Out Survey. Complete the final Partnering evaluation to get participants’ feedback and improve the Partnering process. The Partnering Close -Out Survey i s located on the Division of Construction Management’s Partnering website: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx
108.03 Prosecution and Progress . Start the Work according to 108.02. Notify
the Engineer at least 24 hours before starting the Work. If the prosecution of the Work is suspended, notify the Engineer a minimum of 24 hours in advance of resuming operations. Pursue the Work diligently and continuously as to complete the Project by the Completion Date.
A.Progress Schedule.
1.General. Furnish a bar chart progress schedule to the District Construction Engineer for review at or before the Preconstruction Meeting. The Engineer will review the schedule and within 14 calendar days of receipt, will either accept the sche dule or provide the Contractor with comments. Acceptance of the schedule does not revise the Contract Documents. Provide clarification or any needed additional information within 10 days of a written request by the Engineer. The Department will withhold Es timates until the Engineer accepts the schedule. The Engineer will not measure or pay for the preparation of the schedule and schedule updates directly, but the cost of preparing and updating the schedule is incidental to all Contract Items.
a.Include th e following Administrative Identifier Information:
1.Project Number
2.County
3.Route Number
4.FHWA Number
5.PID Number
6.Contract Number
7.Date of Contract
8.Completion Date
9.Contractor's Name
10.Contractor's Dated Signature
11.ODOT' s Dated Acceptance Signature 108.03 60 Provide a working day schedule that shows the various activities of Work in sufficient detail to demonstrate a reasonable and workable plan to complete the Project by the Completion Date. Show the order and the sequence for accomplishing the Work. Describe all activities in sufficient detail so that the Engineer can readily identify the Work and measure the progress of each activity. The bar chart schedule must reflect the scope of work, required phasing, maintenance of traff ic requirements, interim completion dates, the Completion Date, and other project milestones established in the Contract Documents. Include activities for submittals, working and shop drawing preparation, submittal review time for the Department, material procurement and fabrication, and the delivery of materials, plant, and equipment, and other similar activities. The schedule must be detailed on letter or legal sized paper.
b.Activity requirements are discussed in further detail as follows:
1.Activity Description. Assign each activity an unambiguous descriptive word or phrase. For example, use "Excavate Area A," not "Start Excavation."
2.Activity Original Duration. Indicate a planned duration in calendar days for each activity. Do not exceed a duration of 20 working days for any activity unless approved by the Engineer. Do not represent the maintenance of traffic, erosion control, and other similar items as single activities extending to the Completion Date. Break these Contract Items into compo nent activities in order to meet the duration requirements of this paragraph.
2.Early Completion Schedule. An Early Completion Schedule is defined as a baseline schedule or update schedule which anticipates completion of all work prior to the Completion D ate established by the contract documents and the Contractor submits as an Early Completion Schedule. In the event that an Early Completion Schedule is accepted, the Engineer will initiate a change order amending the Completion Date to the finish date show n on the accepted Early Completion Schedule. The amended Completion Date will be effective upon execution of that change order and all contract provisions concerning the Completion Date such as incentives, disincentives, excusable delays, compensable delay s, and liquidated damages will be measured against the amended Completion Date. The Contractor may elect not to execute the change order amending the Completion Date; however, in so doing, the Contractor waives its rights to delay damages in meeting the projected early Completion Date.
3.Updated Progress Schedule. Submit an updated progress schedule when ordered by the Engineer. The Engineer may request an updated progress schedule when progress on the work has fallen more than 14 calendar days behind the latest accepted progress schedule. Information in the updated schedule must include a "% work completed" value for each activity.
4.Recovery Schedule. If the progress schedule projects a finish date for the Project more than 14 calendar days later than t he Completion Date, submit a revised schedule showing a plan to finish by the Completion Date. The Department will withhold Estimates until the Engineer accepts the revised schedule. The Engineer 108.04 61 will use the schedule to evaluate time extensions and associ ated costs requested by the Contractor.
108.04 Limitation of Operations . Limit operations to prevent unnecessary
inconvenience to the traveling public. If the Engineer concludes that the extent of the Contractor’s Work unnecessarily inconveniences the publ ic or concludes limiting operations are necessary to protect the existing or new construction from damage, the Engineer will require the Contractor to finish portions of Work in progress before starting new Work.
108.05 Character of Workers Methods and Equ ipment. Provide personnel
with sufficient skills and experience to perform assigned tasks. Ensure that no debarred individuals listed on the Federal website: www.epls.gov or State debarment list at the website: www.dot.state.oh.us/divisions/contractadmin/ act in any ownership, leadership, managerial, or other similar position that could influence the operations of an entity doing business with the Departm ent. If the Engineer gives written notification that specific Contractor or subcontractor personnel are improperly performing the Work, intemperate, disorderly, or creating a hostile work environment, remove the identified personnel from the Project. Do not allow removed personnel to return to the Project without the Engineer’s approval. The Engineer may suspend the Work by written notice under this subsection for the following reasons:
A.The Contractor does not furnish sufficient skilled and experienced personnel to complete the Project by the Completion Date.
B.The Contractor does not remove personnel from the Project as directed in writing by the Engineer. Use equipment of sufficient size and mechanical condition to complete the Project by the Completi on Date. Ensure that the equipment does not harm the roadway, adjacent property, other highways, workers, or the public. If the Contract Documents do not prescribe the methods and equipment required to accomplish the Work, determine the methods or equipmen t necessary to complete the Work according to the Contract. If the Contract Documents specify methods and equipment to perform the Work, use such methods and equipment, unless others are authorized by the Engineer. Obtain the Engineer’s written approval be fore substituting alternate methods or equipment. To obtain the Engineer’s approval, submit a written description of the alternate methods and equipment proposed and an explanation of the reasons for making the change. The Engineer’s approval of the substi tute methods and equipment does not relieve the Contractor of the obligation to produce Work according to 105.03. If after trial use of the substituted methods or equipment, the Engineer determines that the Work does not conform to the Contract Documents, then complete the remaining Work using the specified methods and equipment. Remove all deficient Work and replace it according to the Contract Documents, or take such other corrective action as directed by the Engineer. The Engineer’s 108.06 62 authorization to subs titute alternate methods and equipment will not change the basis of payment for the construction items involved or the Contract Time.
108.06 Determining a Time Extension to the Completion Date and Payment
for Excusable Delays .
A.General. The Department will only extend the Completion Date if an excusable delay, as specified in 108.06.B or 108.06.D, delays Work on the critical path shown on the accepted progress schedule and impacts the Completion Date. The critical path is defined as; the longest path of activities in the project that determines the project schedule completion date. The activities that make -up the critical path of activities are the “Critical Activities.” Any extension of the Completion Date will be executed by a change or der. Mitigation of any delay, whether caused by the Department, Contractor, third - party or an intervening event, is a shared contract and legal requirement. Mitigation efforts include, but are not limited to, re -sequencing work activities, acceleration, and continuation of work through an otherwise planned shutdown period. The Contractor and Engineer must explore and discuss potential mitigation efforts in a timely manner. The Department will not evaluate a request for extension of the Completion Date unl ess the Contractor notifies the Engineer as specified in 108.02.F. Notification shall be in writing to the Engineer within 30 days following the termination of the event giving rise to the request and shall be accompanied by supporting analysis and documen tation. The Engineer will evaluate the Contractor’s analysis and determine the time extension due, if any. The Engineer will measure all time extensions in Calendar Days. For delays measured in Workdays, the Engineer will convert Workdays to Calendar Days by multiplying by 1.4 for a 5 -day work week or less; 1.2 for a 6 -day work week; and 1 for a 7 -day work week; and extend the Completion Date by the resulting number of Calendar Days plus any holidays the Contractor does not normally work that occur in the extension period. When the conversion of Workdays to Calendar Days results in a decimal of 0.5 or greater, the Engineer will round the number of Calendar Days to the next highest whole number. When the conversion results in a decimal less than 0.5, the Eng ineer will delete the decimal portion of the Calendar Days. The Engineer will not grant an extension of time for delays incurred from December 1 to April 30 unless the Contractor’s accepted progress schedule depicts work on the critical path occurring duri ng this period. The Engineer may order the Contractor to continue Work after November 30 and compensate the Contractor for costs incurred due to cold weather Work. The Contractor’s plea that insufficient time was specified is not a valid reason for an exte nsion of time. The Department will relieve the Contractor from associated liquidated damages, as specified in 108.07, if the Engineer extends the Completion Date under
108.06 A. 108.06
63 The extended Completion Date shall then have the same standing and effect as though it was the original Completion Date. If the Contractor contends that an excusable delay is also compensable, as specified in 108.06.D, submit a detailed cost analysis of the requested additional compensation along with the request for extension of C ompletion Date.
B.Excusable, Non -Compensable Delays . Excusable, non -compensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility. The Engineer will not grant additional payment for excusable, non -compensable delays. The following are excusable, non -compensable delays:
1.Delays due to floods, tornadoes, lightning strikes, earthquakes, or other cataclysmic phenomena of nature.
2.Delays due to weather as specified in 108.06.C.
3.Extraordinary delays in material de liveries the Contractor or its suppliers cannot foresee or avoid resulting from freight embargoes, government acts, or area - wide material shortages. Delays due to the Contractor’s, subcontractor’s, or supplier’s insolvency or mismanagement are not excusabl e.
4.Delays due to civil disturbances.
5.Delays from fires or epidemics.
6.Delays from labor strikes that are beyond the Contractor’s, subcontractor’s, or supplier’s power to settle and are not caused by improper acts or omissions of the Contractor, sub contractor, or supplier.
7.Added quantities that delay an activity on the critical path.
8.All other delays not the Contractor’s and Department’s fault or responsibility.
C.Extension to the Completion Date for Weather or Seasonal Conditions. A weather d ay is defined as a workday that weather or seasonal conditions reduced production by more than 50 percent on items of work on the critical path. Submit the dates and number of weather days in writing to the Engineer at the end of each month. In the event t he Contractor fails to submit weather days at the end of each month the Engineer will determine the dates and number of weather days from project records. Delays caused by weather and seasonal conditions should be anticipated and will be considered as the basis for an extension of time when the Contractor’s accepted progress schedule depicts Work on the critical path and the actual workdays lost exceeds the number of work days lost each month as determined by Table 108.06 -1. 108.06 64 TABLE 108.06 -1 Month Number of Workdays Lost Due to Weather January 8 February 8 March 7 April 6 May 5 June 5 July 4 August 4 September 5 October 6 November 6 December 6 This table applies to the duration between contract execution and original completion date. Extensions for weather days beyond the original completion date will be for the actual workdays lost each month. The Engineer will not consider weekends and holidays as lost workdays unless the Contractor normally works those days or unless the Engineer directs the Contractor to work those days.
D.Excusable, Compensable Delays. Excusable, compensable delays are delays that are not the Contractor’s fault or responsibility, and are the Department’s fault or responsibility or are determined by judicial proceeding to be the Department’s sole responsibility or are the fault and responsibility of a local government. For the following excusable, compensable delays, the Engineer will extend the Completion Date if the conditions specified in 108.06.A are met:
1.Delays due to revised Work as specified in 104.02.B, 104.02.D, or
104.02 F.
2.Delays due to utility or railroad interference within the Project limits.
3.Delays due to an Engineer -ordered suspension as specified in 104.02.C.
4.Delays due to acts of the government or a political subdivision other than the Department; however, these compensable delay costs are limited to escalated labor and material costs only, as allowed in 109.05.D.2.b and 109.05.D.2.d.
5.Delays due to the neglect of the Department or its failure to act in a timely manner. Compensation for excusable, compensable delays will be determined by the Engineer according to 109.05.D.
E.Non-Excusable Delays. Non-excusable delays are delays that are the Contractor’s fault or responsibility. All non -excusable delays are non -compensable.
F.Concurrent Delays. Concurrent delays are separate critical delays that occur at the same time. When a non -compensable delay is concurrent with a compensable 108.07 65 delay, the Contractor is entitled to additional time but not entitle d to additional compensation.
108.07 Failure to Complete on Time. If the Contractor fails to complete the
Work by the Completion Date, then the Director, if satisfied that the Contractor is making reasonable progress, and deems it in the best interest of t he public, may allow the Contractor to continue in control of the Work. The Department will pay the Contractor for Work performed on the Project less any liquidated damages incurred. If the Work is not completed by the Completion Date and the Director perm its the Contractor to remain in control, prosecute the Work at as many different places, at such times, and with such forces as the Director requests. Provide a written plan for the completion of the Work. For each calendar day that Work remains uncomplete d after the Completion Date, the Department will deduct the sum specified herein from any money due the Contractor, not as a penalty, but as liquidated damages. The Director will adjust the Completion Date or other contractually mandated dates for delays s pecified in
108.06 B.7 and 108.06.D.
Permitting the Contractor to continue and complete the Work or any part of the Work after the Completion Date, or after extensions to the Completion Date, will in no way operate as a waiver on the part of the Departmen t of any of its rights under the Contract. The Director may stop deducting liquidated damages when:
A.The Work is substantially complete and the project is available for use as intended by the contract.
B.The Contractor is diligently pursuing the remaining Work.
C.The Work remaining will not interfere with the intended use of the project and will not impact traffic. For the limited purposes of assessing liquidate damages, the closing of a shoulder is not considered an impact upon traffic.
D.All contract safety items are complete and operational. These safety items include but are not limited to signs, pavement markings, guardrail, attenuators, and signals. Raised pavement markers (RPM) are required safety items if the roadway section involved had RPMs before the project started.
E.Deemed reasonable and appropriate by the District Deputy Director. TABLE 108.07 -1 SCHEDULE OF LIQUIDAT ED DAMAGES Original Contract Amount (Total Amount of the Bid) Amount of Liquidated Damages to be Deducted for each Calendar Day of Overrun in Time From More Than To and Including $0.00 $500,000 $400 $500,000 $2,000,000 $600 $2,000,000 $10,000,000 $900 $10,000,000 $50,000,000 $1,500 Over $50,000,000 $3,200 108.08 66 108.08 Unsatisfactory Progress and Default of Contractor. The Director will notify the Contractor in writing of unsatisfactory progress for any of the following reasons:
A.The Contractor has not commenced the Work by the dates established in the schedule.
B.The Contractor does not proceed with the W ork in a manner necessary for completion of the Project by the Completion Date.
C.The Contractor is performing the Work improperly.
D.The Contractor abandons, fails, or refuses to complete the Work.
E.Any other reason the Director believes jeopardizes c ompletion of the Work by the Completion Date. If the Contractor does not respond to the satisfaction of the Director, the Director may declare the Contractor in default and may notify the Contractor and Surety that the responsibility to complete the Work i s transferred to the Surety. Upon receipt of this notification, the Contractor’s right to control and supervise the Work will immediately cease. In such a case, the Director will proceed as specified in ORC
5525.17 The defaulted Contractor will not be com pensated for costs resulting from
the default and is not eligible to be retained by the Surety to complete the Work. If it is determined that the Department’s default of the Contractor according to 108.08 is wrongful, then the default will revert to a term ination of the Contract according to 108.09.
108.09 Termination of the Contract for Convenience of the Department.
The Director may terminate the Contract at any time for the convenience of the Department. The Department will compensate the Contractor acco rding to 109.04 and 109.05 for termination of the Contract for the convenience of the Department. This subsection is subject to the provisions of ORC 5525.14.
108.10 Payroll Records. Keep payroll records as specified in ORC 4115.07 or
as required by Federa l law. Authorized representatives of the Director may inspect the certified payroll and other payroll records. Upon completion of the Work and before receiving the final estimate and when required by ORC 4115.07, submit an affidavit stating that wages have been paid according to the minimum rates specified in the Contract Documents. 109 ACCEPTANCE, MEASUREM ENT, AND PAYMENT
109.01 Measurement of Quantities. The Department will measure the
quantities of Work and calculate payments based on the method of measu rement and basis of payment provisions provided in these Specifications. When the following units of measure are specified, the Department will measure quantities as described below unless otherwise specified in the Contract Documents. The accuracy of individual pay item estimate payments will be one decimal more accurate than the unit of measure denoted for the pay item. 109.01 67 Lump Sum. Not measured. Describes payment as reimbursement for all resources necessary to complete the Work. When a complete structure or structural unit is specified as the unit of measurement, the unit will include all necessary fittings and accessories. Each. Measured by the number of individual items of Work completed. Foot (Meter). Measured parallel to the longitudinal base or foundation upon which items are placed, or along the longitudinal surface of the item. Measured vertically to the nearest 0.1 foot (0.01 m), with a minimum vertical measurement of 1 foot (0.10 m), at each unit. Square Yard or Square Foot (Square Meter). Measured by a two -dimensional area method on the surface of the item. M Square Feet. One thousand square feet. Cubic Yard (Cubic Meter). Measured by a three -dimensional volume method. Measure all “loose material” or material “measured in the vehicle” by the cubic yard (cubic meter). Haul material “measured in the vehicle” in approved vehicles and measure in the vehicle at the point of delivery. For this purpose, use approved vehicles of any type or size satisfactory to the Engineer, provided the vehicle’s bed is of such type that the actual contents are readily and accurately determined. Unless all approved vehicles on a job are of uniform capacity, each approved vehicle must bear a legible identification mark indicating the specific approved capacity. The Inspector may reject all loads not hauled in such approved vehicles. Cubic Yard (Cubic Meter) for Asphalt Concrete. Measure as specified in 401.21. Acre (Hectare). Measured by a two -dimensional area method on the surface to the nearest 0.1 acre (0.05 ha). Pound (Kilogram). Measured by actual item net weight avoirdupois (mass). Ton (Metric Ton). The term “ton” means the short ton consisting of 2000 pounds avoirdupois. The term “metric ton” means 1000 kilograms. Weigh all materials that are proportioned by weigh t on accurate and approved scales that are operated by competent, qualified personnel at locations approved by the Engineer. However, car weights will not be acceptable for materials to be passed through mixing plants. If trucks are used to haul material b eing paid for by weight, weigh the empty truck at least once daily and as the Engineer directs and only if the weight of the truck is used in determining the ticket weight. Place a plainly legible identification mark on each truck bearing the weight of the truck. For Work on a tonnage basis, file with the Engineer receipted freight bills for railroad shipments and certified weight -bills when materials are received by any other method, showing the actual tonnage used. For Work on a volume basis, itemize evidence of the volume used. Gallon (Liter). Measured by actual item liquid volume. The Department will measure the following materials by the gallon (liter) at the following temperatures: 109.02 68 Temperatures Items 60 F (16 C) Creosote for Priming Coat, Creosote Oil, Creosote Solutions for Timber Preservatives, Asphalt Primer for Water -proofing, and Liquefier 100 F (38 C) RC, MC Asphalt Emulsions, CBAE, Primer 20, and Primer 100 300 F (149 C) Asphalt Binder Measure tank car outage of asphalt material at its destination before any material has been removed from the tank car according to Supplement 1060. Convert the net weight of asphalt material shipments to gallons (liters) at the specified pay temperature according to Supplement 1060. Convert the gallons (liters) at the measured temperature to gallons (liters) of asphalt material at the specified pay temperature according to Supplement 1060. M Gallon. One thousand gallons. Thousand Board Feet, MBF (Cubic Meter). Measure timber by MBF (cubic meter) actuall y incorporated in the structure. Base the measurement on nominal widths, thicknesses, and the extreme length of each piece. Standard Manufactured Items. When standard manufactured items are specified such as fence, wire, plates, rolled shapes, pipe conduit , etc., and these items are identified by size, unit weight, section dimensions, etc., such identification will be to nominal weights or dimensions set by the industry.
109.02 Measurement Units. The Department will measure using either English
or metric un its as indicated in the Contract Documents. Use the Tables 109.02 -1 and
109.02 2 to convert units when required. If Tables 109.02 -1 and 109.02 -2 do not
provide a required factor, then use the appropriate factor provided in the IEEE/ASTM SI 10. 109.02 69 TABLE 109.02 -1 ENGLISH TO SI (METRI C) CONVERSION FACTOR S Symbol When You Know Multiply By To Find Symbol Length mil mils 25.4 micrometers µm in inches 25.4 millimeters mm ft feet 0.3048 meters m yd yards 0.9144 meters m mi miles 1.609347 kilometers km Area in² square inches 645.16 square millimeters mm² ft² square feet 0.09290304 square meters m² yd² square yards 0.8361274 square meters m² ac acres 0.4046873 hectares ha ac acres 4046.873 square meters m² mi² square miles 2.589998 square kilometers km² Volume fl oz fluid ounces 29.57353 milliliters mL gal gallons 3.785412 liters L ft³ cubic feet 0.02831685 cubic meters m³ yd³ cubic yards 0.7645549 cubic meters m³ Mass oz ounces 28.34952 grams g lb pounds 0.4535924 kilograms kg T 2000 pounds 0.9071847 metric tons t Temperature °F Fahrenheit C = (F -32)/1.8 Celsius °C Illumination fc foot-candles 10.76391 lux lx fl foot-lamberts 3.426259 candelas per square meter cd/m² Force and Pressure or Stress lbfft pounds -force foot 1.355818 newton meter Nm lbf pounds force 4.448222 newtons N lbf/ft² (psf) pounds force per square foot 47.88026 pascals Pa lbf/in² (psi) pounds force per square inch 0.006894757 megapascals MPa 109.03 70 TABLE 109.02 -2 SI (METRIC) TO ENGLI SH CONVERSION FACTOR S Symbol When You Know Multiply By To Find Symbol Length µm micrometers 0.03937 mils mil mm millimeters 0.03937 inches in m meters 3.28084 feet ft m meters 1.093613 yards yd km kilometers 0.62137 miles mi Area mm² square millimeters 0.00155 square inches in² m² square meters 10.76391 square feet ft² m² square meters 1.19599 square yards yd² ha hectares 2.4710437 acres ac m² square meters 0.000247 acres ac km² square kilometers 0.3861 square miles mi² Volume mL milliliters 0.033814 fluid ounces fl oz L liters 0.264172 gallons gal m³ cubic meters 35.31466 cubic feet ft³ m³ cubic meters 1.30795 cubic yard yd³ Mass g grams 0.035274 ounces oz kg kilograms 2.204622 pounds lb t metric tons 1.1023114 2000 pounds T Temperature °C Celsius F = 1.8C + 32 Fahrenheit °F Illumination lx lux 0.09290304 foot-candles fc cd/m² candelas per square meter 0.29186352 foot-lamberts fl Force and Pressure or Stress Nm newton meters 0.7375621 pounds -foot force lbf ft N newtons 0.22480892 pound force lbf Pa pascals 0.02088543 pounds force per square foot lbf/ft² (psf) MPa megapascals 145.03774 pounds force per square inch lbf/in² (psi)
109.03 Scope of Payment. Payment of the Contract Price is full compensation
for all resources necessary to complete the Contract Item and maintain the Work. Assume liability for risk, loss, damage, or expense resulting from the Work. The Contract Price and Contract Time shall only be changed by written Change Order 109.04 71 or as determined by the Department in writing in accordance with the contract documents.
109.04 Compensation for Altered Quantities, Eliminated Items or
Termination of the Contract for Convenience of the Department. If the agreed quantities of contract items vary from the quantities in the Contract, the Department will make payment at the original Contract unit prices for the agreed quantities of Work.
A.If an item is eliminated in accordance with 104.02.E or the contract is terminated in accordance with 108.09 the Department will pay the following in addition to that provided by 104.02.D:
1.Restocking charges supported by paid invoices and an additional 5 percent markup on the compensation for overhead and profit.
2.The cost of material transferred to the Department or a local government agency in lieu of restocking or disposal. The allowed compensation is the paid invoice cost plus 15 percent markup, but no more than the unit bid price for the reference number involved.
3.Hauling costs, if not included in restocking charges, for returned material and fo r material delivered to the Department.
B.If the project is terminated for convenience of the Department, the Department will negotiate compensation with the Contractor for actual costs incurred as a result of the termination. The Department will pay for Extra Work as stipulated in approved Extra Work Change Orders or written authorizations subject to the limitations set forth in ORC 5525.14. Such authorizations for emergencies and to avoid Project delays are in advance of an approved Extra Work Change Ord er and commit the Department only to the terms of the authorizations. The Department will pay for Extra Work after the approval of the subsequent Change Order.
109.05 Changes and Extra Work.
A.General. If the Department revises the Contract under: 104.02 , 105.07, 105.10, 105.13, 107.10, 107.14, 107.15, 108.09, 109.06, or 109.07, the Department will pay for changes and Extra Work with a Change Order using the sequence specified in 109.05.B through 109.05.E. In establishing the method of payment for contra ct changes or extra work orders, force account procedures shall only be used when strictly necessary, such as when agreement cannot be reached with the Contractor on the price of a new work item, or when the extent of work is unknown or is of such characte r that a price cannot be determined to a reasonable degree of accuracy. The reason or reasons for using force account procedures shall be documented. Unless otherwise stated in 109.05, the compensation provided in 109.05.B through 109.05.E constitutes paym ent in full for all changes and Extra Work completed by original Contract Price, agreed unit price, agreed lump sum price, and for work performed on a force account basis, including:
1.Administration.
2.Superintendence. 109.05 72 3. Project and field office overhe ad.
4.Home office overhead.
5.Use of tools and equipment for which no rental is allowed.
6.Profit.
7.Taxes other than sales tax.
8.Premiums on insurance including additional premiums for Commercial General Liability Insurance required by 107.12.B and any additional coverage carried by the Contractor or subcontractor, excluding pollution and railroad General Liability Insurance. The Department will pay the Contractor’s pollution and railroad liability insurance premiums, if required by the contract, by a separate Change Order for the cost of the premium without any markup. When the Contractors or subcontractors basic rate for General Commercial Liability Insurance required by
107.12 B is greater than 5 percent of payroll, the Department will pay directly
without markup the portion of the premium in excess of 5 percent and provide copies of paid premiums. Sales tax will not be allowed on any item for which tax exemption was obtained.
B.Negotiated Prices. Negotiated prices for changes and Extra Work shall be comparable to prices that would have resulted from a competitive bid contract. The Engineer and Contractor will negotiate agreed unit or lump sum prices using one or more of the following methods:
1.Original Contract prices for similar work but adjuste d for:
a.increased or decreased material costs specified in 109.05.C.3.
b.increased or decreased labor costs specified in 109.05.C.2
c.increased or decreased equipment costs specified in 109.05.C.4 Adjustments of these prices for inflation or markup f or subcontractor work is not allowed.
2.State -wide average unit price awarded for the item or items as listed in the Department’s annual “Summary of Contracts Awarded.” These prices may be adjusted for inflation using factors issued by the Office of Const ruction Administration. No markup for subcontractor work is allowed.
3.Average price awarded on three different projects of similar work and quantity. These prices may be adjusted for inflation using factors issued by the Office of Construction Administra tion. No markup for subcontractor work is allowed.
4.Prices computed by the Office of Estimating.
5.Cost analysis of labor, material, equipment, and markups as allowed in
109.05 C.
6.For the cost of compensable delays as defined in 108.06, prepare a cost analysis as allowed by 109.05.D. 109.05 73 Provide proposed pricing and cost justification for changes or Extra Work within 5 business days after the Department’s request. The Department will respond within 5 business days after receipt of the Contractor’s prop osal. The Department and the Contractor can mutually agree to extend these 5 -day time limits. If the Department negotiates with the Contractor but does not agree on a price adjustment, the Engineer may direct the Contractor to perform all or part of the revised Work under force account.
C.Force Account.
1.General. The Engineer may direct the Contractor to perform the revised Work under force account. Submit a written proposal and estimated costs for the Work, including the planned equipment, materials, labor, and a work schedule. The Department will pay the Contractor as specified in 109.05.C as full compensation for performing the force account Work. The Project and Contractor personnel will document the labor and equipment used on the force account work on a Daily Force Account Record. At the end of each Workday, the Project and Contractor personnel will compare and sign the Daily Force Account Record . The Department will make no force account payment before the Contractor submits an itemized statement of the costs for that work. The Engineer will examine and, if found to be acceptable, approve all rates and costs submitted by the Contractor. Provide t he following content in itemized statements for all force account work:
a.Name, classification, date, daily hours, total hours, rate, and amount for all labor.
b.Designation, dates, daily hours, total hours of actual operation and idle time, Blue Book ra te with reference or category, and amount for each unit of equipment and the applicable Blue Book hourly operating cost for each unit of equipment and invoices for all rental equipment. The designation includes the manufacturer’s name or trademark, model n umber, and year of manufacture.
c.Quantities of materials and prices.
d.Transportation charges on materials, free on board (F.O.B.) at the job site.
e.Cost of workers’ compensation insurance premiums, all applicable insurance premiums, unemployment insu rance contributions, and social security tax and fees or dues required by a collective bargaining agreement. Express each of these items of cost as a percentage of payroll, except fees or dues, which should be expressed as a cost per hour.
f.Documentation showing payment for all surveying, professional, or similar specialized Work not normally a part of a Department contract.
g.If materials are taken from Contractor’s stock and original receipted invoices for the materials and transportation charges do no t exist, provide an affidavit and certify all of the following: 109.05 74 (1) The materials were taken from the Contractor’s stock.
2.The quantity shown was actually used for the force account work.
3.The price and transportation costs represent the actual cost to the Contractor.
h.Documentation showing payment to trucking firms and owner - operators. Submit documentation showing owner -operations status. When the trucking is subject to prevailing wage, submit payroll and equipment usage records according to 109.05 .C.1.a, 109.05.C.1.b, and 109.05.C.1.e.
i.Provide “receipted invoices” for all costs substantiated by an invoice. If only part of the expenditure represented by an invoice is applicable to force account work, or if the invoice represents expenditure for more than one item of work, clearly indicate the actual amount of expenditure applicable to each item of work.
2.Labor. The Department will pay the wages and fringe benefits currently in effect for each hour the Work is performed by all labor employed in the Work and all foremen in direct charge of the specific operation. The Department will pay an additional 38 percent markup on these wages and benefits. “Fringe benefits” are the actual costs paid to, or on behalf of, workmen by reason of health and we lfare benefits, pension fund benefits, or other benefits, when such amounts are required by prevailing wage laws or by a collective bargaining agreement or other employment contracts generally applicable to the classes of labor employed on the Project. The Department will pay the actual itemized cost, without markup, of the following payroll taxes and legally required insurances:
a.Social Security Tax.
b.Medicare Tax.
c.Ohio Workers’ Compensation Premiums.
d.State and Federal Unemployment Insurance.
e.Longshore and Harborworkers’ Compensation Insurance for work from a barge or ship, or unloading material from a barge or ship. Provide itemized statements in addition to the documentation requirements for all labor including the name, classification, date, daily hours, total hours, rate, and amount. If any person is paid more than the one rate, a separate listing shall be made for that person for each rate paid. Provide itemized statements for Ohio Workers’ Compensation insurance premiums, all applicable in surance premiums, State and Federal Unemployment Insurance contributions, and Social Security Tax and fees or dues required by a collective bargaining agreement. Express each of these items of cost as a percentage of payroll, except fees or dues, which sha ll be expressed as a cost per hour. Instead of itemizing the cost of Social Security Tax, Ohio Workers’ Compensation, and State and Federal Unemployment Insurance, the Contractor may 109.05 75 elect to receive as compensation for these payroll taxes and premiums, an amount equal to 22 percent of the paid wages. If the Contractor pays fringes directly to the worker in lieu of paying into a fringe benefit program, then the Department will treat these fringe payments as paid wages when calculating the allowed 22 percent compensation. The Department will pay, without markup, the actual itemized cost of fees and dues paid to labor unions or to business associations when they are based on payroll hours and required by a collective bargaining agreement. The Department will n ot pay for wages or benefits for personnel connected with the Contractor’s forces above the classification of foreman that have only general supervisory responsibility for the force account work. If the foreman or timekeeper is employed partly on force acc ount work and partly on other work, the Contractor shall prorate the number of hours between the force and non -force account work according to the number of people on each task as shown on payrolls. The Department will pay the prevailing wage and fringe ra tes that apply to the Project for the classifications required for Extra Work. The Contractor must provide payroll records for pay rates higher than the prevailing wages and establish that the higher than prevailing rates are paid for original Contract Wor k. The Department will pay for foremen and time keepers not covered by prevailing wages not more than the salaried rate they receive when engaged in original Contract Work. The Department will pay actual costs for subsistence and travel allowances when suc h payments are required by the collective bargaining agreement or other employment contracts applicable to the classes of labor employed on the Project. The Department will not pay a percent markup on these costs.
3.Materials. The Department will pay the Contractor’s actual invoice costs, including applicable taxes and actual freight charges, for Engineer approved materials the Contractor uses in force account Work. The Department will pay an additional 15 percent markup on these costs. Freight or hauling costs charged to the Contractor and not included in unit prices shall be itemized and supported by invoices. The cost of owned or rented equipment used to haul materials to the project is not part of the materials cost. Such equipment, when used for haulin g materials, shall be listed under cost of equipment. Provide itemized statements in addition to the documentation requirements for all equipment including the quantity and price of each material and transportation charges free on board (F.O.B.) at the job site. Attach invoices to support the quantities of materials used, unit prices paid and transportation charges. If the Contractor uses materials from the Contractor’s stock and original receipted invoices for the materials and transportation charges do no t exist, the Department and the Contractor will agree on a price that represents the actual cost to the Contractor. Provide an affidavit and certify all of the following:
a.The materials were taken from the Contractor’s stock.
b.The quantity shown was ac tually used for the force account work. 109.05 76 c. The price and transportation costs represent the actual cost to the Contractor. Do not incorporate materials into the Work without a price agreement.
4.Equipment.
a.General. The Department will pay the Contracto r’s costs for equipment the Engineer deems necessary to perform the force account work for the time directed by the Engineer or until the Contractor completes the force account Work, whichever happens first. The Department will pay the Contractor the estab lished rates for equipment only during the hours that it is operated, except as otherwise allowed elsewhere in these Specifications. The Department will pay for non-operating hours at the idle equipment rate as specified in 109.05.C.4.c. Report equipment h ours to the nearest 1/2 hour. The established equipment rates in these Specifications include compensation for overhead and profit except as otherwise specified. The Department will pay for use of Contractor -owned equipment the Engineer approves for force account Work at established rates. The Department will pay the rates, as modified in 109.05.C.4.b, given in the Equipment Watch Cost Recovery (formerly Rental Rate Blue Book ), by EquipmentWatch , a division of Penton Business Media, Inc . Provide, and the Engineer will confirm, the manufacturer’s ratings and manufacturer -approved modifications required to classify equipment for rental rate determination. For equipment with no direct power unit, use a unit of at least the minimum recommended manufacturer’s rating. The Department will not pay rental for small tools or equipment that show a daily rate less than $5.00 or for unlisted equipment t hat has a value of less than $400. Tool trucks will be allowed for compensation if they are used at the force account site. Only the tools used from the tool truck will be allowed for compensation. Tools in the tool truck that are not used in the force acc ount work will not be compensated. A tool trailer that remains at the Contractor’s office or yard will not be allowed on the force account work. Tool trailers that are taken to the force account site will be allowed for compensation along with the tools us ed on the force account work that were taken from the trailer. Treat traffic control devices used in Maintaining Traffic and owned by the Contractor as owned equipment. Allowed rates for common traffic control devices and concrete barrier that are not list ed in the Blue Book will be as determined by the Department. Use Engineer approved equipment in good working condition and providing normal output or production. The Engineer may reject equipment not in good working condition or not properly sized for eff icient performance of the Work. For each piece of equipment used, whether owned or rented, provide the Engineer with the following information:
1.Manufacturer’s name or trademark. 109.05 77 (2) Equipment type.
3.Year of manufacture.
4.Model number.
5.Type o f fuel used.
6.Horsepower rating.
7.Attachments required, together with their size or capacity.
8.All further information necessary to determine the proper rate.
9.Dates, daily hours, total hours of actual operation and idle time,
10.Blue Book r ate with reference or category,
11.Amount
12.Applicable Blue Book hourly operating cost
13.Invoices for all rental equipment.
b.Hourly Owned Equipment Rates. The base rate for the machine and attachments represent the major cost of equipment own ership, such as depreciation, interest, taxes, insurance, storage, and major repairs. The hourly operating rate represents the major costs of equipment operation, such as fuel and oil lubrication, field repairs, tires, expendable parts, and supplies. For a ll equipment used on force account work, determine, and have the Department confirm, the hourly owned equipment rates as follows: HOER = [RAF ARA (R / 176)] + HOC Where: HOER = hourly owned equipment rate RAF = regional adjustment factor shown in the Blue Book ARA = age rate adjustment factor shown in the Blue Book R = current Blue Book monthly rate HOC = estimated hourly operating cost shown in the Blue Book However, compensation for equipment normally used on a 24 hours per day basis will not exceed the monthly rate plus adjustments and operating costs. The rate adjustment factor assigned to any attachment will be the yearly factor as determined for the base equipment. When multiple attachments are included with the rental equipment, only the attachment having the highest rental rate will be eligible for payment, provided that the attachment has been approved by the Engineer as being necessary to the force account Work. When a piece of owned equipment is not listed in the Blue Book, use the ra te for similar equipment found in the Blue Book or use 6 percent of the purchase price as the monthly rate ( R) and add the hourly operating rate found in the Blue Book for similar equipment of the same horsepower. 109.05 78 For equipment brought to the Project exclu sively for force account work and on the Project for less than a month, multiply the monthly rate ( R) by the factor listed below: TABLE 109.05 -1 Working Hours Factor Less than or equal to 8.0 2.00 8.1 to 175.9 2.048 - (hours/168) 176 or greater 1.00 The term “WORKING HOURS,” as used in Table 109.05 -1, includes only those hours the equipment is actually in operation performing force account work; apply the factor, as determined above, to these actual working hours only. Calculate compensation for any i dle time according to 109.05.C.4.c without application of the factor. The Department will pay as working equipment for the entire Workday equipment used intermittently during the Workday. The following criteria qualify for intermittently used equipment:
1.Equipment dedicated to the force account exclusively all day and not used on bid work.
2.Equipment works before and after the intermittent idle period and its total working time during the Workday is at least 2 hours. Equipment that is captive to the force account work (i.e. it must remain at the force account site), but does not qualify for intermittently used owned equipment, is paid as idle equipment according to C&MS Section 109.05.C.4.c. for the time it is not working.
c.Hourly Idle Equipment Rate. For equipment that is in operational condition, on site, and necessary for force account Work, but is idle, the Department will pay an hourly idle equipment rate. The procedure to determine the hourly idle equipment rate for Contractor owned equipmen t is as follows: HIER = RAF ARA (R / 176) (1/2) Where: HIER = Hourly idle equipment rate. RAF = Regional adjustment factor shown in the Blue Book. ARA = Age rate adjustment factor shown in the Blue Book. R = Current Blue Book monthly rate. If rented equipment necessary for force account work is idle, the Department will pay the Contractor for the actual invoiced rates prorated for the duration of the idle period. The actual invoiced rates must be reasonably in line with the Blue Book rates and approved by the Engineer. The Department will pay a 15 percent markup for overhead and profit for the actual invoiced rates during the idle period. The Department will not pay idle owned equipment costs for more than 8 hours in a 24 -hour day or 40 hours in a week. 109.05 79 The Department will not pay for inoperable equipment. The Engineer may order specific equipment to the site up to 5 days before its planned usage. If this equipment is not used for other work, the Department will pay for it as idle equipment until used. The Department will pay for the cost of idle owned or rented equipment when the Work was suspended for the convenience of the State. The Department will not pay the cost of idle equipment when the Work was suspended by the Contractor for the Contrac tor’s own reasons. The Department will only pay for the number of Calendar Days during the existence of the suspension. The Department will not compensate the Contractor for days that the Engineer determined were lost to weather. The Department will only p ay for equipment physically located at the Project site that was received to prosecute the scheduled work during the delay. Compensation for idle equipment will stop at the completion of the force account Work or at the end of the suspension of Work.
d.Rented Equipment. The Department will pay a 15 percent markup for overhead and profit for all rented equipment, its corresponding Blue Book hourly operating costs, and State and Local sales taxes.
1.Equipment Rented Solely for Force Account Work. If the Contractor rents or leases equipment from a third party exclusively for force account Work, the Department will pay the actual invoiced amount. The actual invoiced rates must be reasonably in line with the Blue Book and approved by the Engineer. The Departme nt will pay a 15 percent markup for overhead and profit for all rented equipment paid for by the actual invoices. Add the Blue Book hourly operating cost to the marked up actual invoiced rates.
2.Equipment Rented for Original Contract Work, but Used for Force Account Work. If the Contractor uses rented equipment currently on the Project for original Contract Work to perform force account Work, then determine the hourly outside -rented equipment rate as follows: HRER = (HRI 115%) + HOC Where: HRER = hourly rented equipment rate HRI = hourly rental invoice costs prorated for the actual number of hours that rented equipment is operated solely on force account work. Use a monthly invoice rate divided by 176, a weekly invoice rate divided by 40, or a daily i nvoice rate divided by 8. HOC = hourly operating cost shown in the Blue Book The Department will not compensate for rental rates that exceed the Blue Book rates unless approved in advance of the Work by the Engineer.
e.Moving of Equipment. The Departmen t will also pay for the time required to move needed equipment to the location of the force account work and to return it to its original location. The Department will pay for loading and 109.05 80 transportation costs instead of moving time if equipment is moved by means other than its own power. Moving time back to the original location or loading and transportation costs will not be allowed if the equipment is used at the site of the force account work on contract items or related work. The Department will consider the actual cost of transferring the equipment to the Project and returning it to the original location as an additional expense and pay for it as specified, for equipment moved on the Project exclusively for force account work. The Engineer will c onfirm the original location of the equipment before the Contractor moves and uses it for force account work. If the equipment is transported by a common carrier, the allowance is the invoiced amount paid for the freight plus 15 percent. However, if the Contractor’s forces transport the equipment, the allowable compensation will be Blue Book rate of the hauling unit and hourly Blue Book operating cost plus the driver’s wages and the cost of loading and unloading the equipment calculated according to 109.05. C.2.
5.Foreman’s Transportation. The Department will pay the Blue Book rate for every hour the foreman’s truck is on the force account site or moving to or from the site. This rate includes equipment cost, fuel and lubricants, overhead, profit, and mobile phone or two -way radios.
6.Subcontract Work. For Work performed by an approved subcontractor, the Department will pay an amount to cover administrative costs of 8% on the first $10,000 of work and 5% for work in excess of $10,000 as provided in 109.05.C.2 through 109.05.C.5. No additional mark -up is allowed for work of a sub - subcontractor or trucking services employed by a subcontractor.
7.Final Adjustment to Premium for Contract Bonds. The final bond premium amount for the payment and performance bonds will be computed based on the actual final con tract value. For the purpose of computing a bond premium adjustment the actual final contract value is defined as the whole sum of money, excluding any bond premium adjustment, which is passed from the Department to the Contractor as a result of the comple tion of the Work. If the actual final contract value is different from the original contract value, the premium shall be adjusted accordingly; either by refund of part of the original bond premium by the Contractor if the original contract value is larger than the actual final contract value; or by payment of additional bond premium by the Department if the original contract value is smaller than the actual final contract value. Additional payment by the Department or refund by the Contractor will be based on the difference between the invoiced bond premium for the original contract value and the invoiced bond premium for the actual final contract value without any markup. A final bond premium adjustment will not be made when the actual final contract value differs from the original contract value by less than $ 40,000.00. 109.05 81 8. Trucking.
a.Trucking firms and owner operators not subject to prevailing wage will be paid at the invoiced cost plus 8% on the first $10,000 of trucking and 5% for trucking in excess of $10,000 to cover administrative costs.
b.Trucking that is subject to the prevailing wage law will be compensated according to 109.05.C.1, 109.05.C.2, 109.05.C.4, 109.05.C.6,
109.05 C.10, and 109.05.C.11.
Provide documentation showing payment to trucking firms and owner - operators and owner -operations status. When the trucking is subject to prevailing wage, submit payroll and equipment usage records according to 109.05.C.2 and
109.05 C.4.
9.Professional and Specialized Work. The following work, when perfo rmed by a firm hired by the Contractor, is paid at the reasonable and fair market invoiced cost plus 8% on the first $10,000 of work and 5% for work in excess of $10,000.
a.Surveying.
b.Engineering design.
c.Specialized work that is not normally part of a Department Contract and is not normally subject to prevailing wage.
d.Installation, periodic maintenance, and removal of traffic control devices under Item 614 performed by a traffic control service or rental company, provided the workers are not on th e Project full -time. Maintenance of Traffic services performed by LEO.
e.Other professional or specialized work not contemplated at the time of Bid. Provide documentation showing payment for professional and specialized Work.
10.Payment for Force Account Work. Submit an analysis of estimated cost prepared in accordance with 109.05C for work that will be performed on a force account basis. Attach an original affidavit to the analysis stating: “Labor rates shown are the actual rates paid for labor, unit pri ces for materials and rates for owned and rented equipment have been estimated on the basis they are not in excess of those charged in the area in which the work will be performed.” The Engineer will process an Estimated Cost of Force Account (ECFA) if the amount of the force account work is likely to be greater than $100,000 and is expected to take more than two weeks to complete. The Engineer will process an Actual Cost of Force Account (ACFA) to make any necessary adjustment between the ECFA and the fin al itemized costs for the force account work. For force account work estimated to be less than $100,000 and anticipated to require less than two weeks to perform, the Engineer will process an Actual Cost of Force Account (ACFA) at the conclusion of the wor k. 109.05 82 Submit biweekly itemized statement of costs prepared from the Daily Force Account Records to the Engineer as the work is being performed. The Engineer will process estimates as the force account work is performed. Payment will only be made upon receipt of the Contractor’s itemized statement of costs. Upon conclusion of the work performed by an ECFA or work performed by an ACFA submit an itemized statement of the actual costs prepared from the Daily Force Account Record and utilizing the Department’s el ectronic template titled “Electronic Force Account.” Submit a compact disk (CD), labeled with the Contractor ’s name and the project number, and a hard copy of the “Electronic Force Account.” The “Electronic Force Account” template can be downloaded from th e following website: www.dot.state.oh.us/divisions/constructionmgt/admin/pages/default.aspx The Engineer may approve an alternative electronic template provided all calculations and printouts are equivalent to those generated by the “Electronic Force Account” template. Attach an original affidavit to the hard copy stating: “The name, classification, total hours worked and rates paid each person listed on the Summary of Actual Cost are substantiated by actual records of persons employed on the force a ccount work. All unit prices for materials and rates for owned and rented equipment listed on the Summary of Actual Costs are substantiated by actual records of materials and equipment actually used in performance of the force account work and the price of any owned equipment not previously agreed upon does not exceed prices charged for similar equipment in the area in which the work was performed.” Daily Force Account Records signed by both the Department and Contractor will govern over other Department an d Contractor records subject to the following:
a.When the Contractor is subject to a Union Contract that requires a minimum number of paid hours, the compensation will be for the verified contract minimum hours.
b.Material quantity disagreements will be resolved by field measurements of the installed quantities or the Engineer’s estimate of the amount of temporary or un -measurable material used. The Engineer may also review and consider the Contractor’s material invoices and material certifications to ma ke the final determination. In the event the Contractor declines to sign the Daily Force Account Record, the Department’s records shall govern. Any resulting dispute must be pursued in accordance with 108.06.G.
D.Delay Costs.
1.General. If the Departmen t agrees that it has caused a delay, the Department will pay for the costs specified in 109.05.D as allowed by 108.06.D, unless these costs have been previously paid as listed in 109.05.B or 109.05.C. Such payment constitutes full compensation for any and all delay costs 109.05 83 The Department will make no payment for delays occurring during the period from December 1 to April 30 unless the Contractor’s approved progress schedule depicts critical Work occurring throughout this period. The Department will not pay fo r delay costs until the Contractor submits an itemized statement of those costs. Provide the content specified in 109.05.C.1, for the applicable items in this statement and as follows:
a.Proof of cost of Superintendent, or other project staff salaries, wages, and payroll taxes and insurance.
b.Proof of cost of office rent, utilities, land rent, and office supplies.
c.Proof of escalated cost for labor and material.
d.Proof of material storage costs.
2.Allowable Delay Costs
a.Extended Labor. Compute l abor costs during delays as specified in 109.05.C.2 for all non -salaried personnel remaining on the Project as required under collective bargaining agreements or for other Engineer -approved reasons.
b.Escalated Labor. To receive payment for escalated labo r costs, demonstrate that the Department -caused delay forced the Work to be performed during a period when labor costs were higher than planned at the time of Bid. Provide adequate support documentation for the costs, allowances, and benefits specified in 109.05.C.2. The Department will pay wages and fringes with a 20 percent mark -up to cover administrative costs.
c.Idle Equipment or Equipment Demobilization. The Department will pay the Contractor according to 109.05.C.4.c for idle equipment, other than small tools, that must remain on the Project during the delays. The Department will pay the Contractor’s transportation costs to remove and return equipment not required on the Project during the delays. No other equipment costs are recoverable as a result o f delay.
d.Material Escalation or Material Storage. The Department will pay the Contractor for increased material costs or material storage costs due to the delay. Obtain the Engineer’s approval before storing materials due to a delay. Payment will be bas ed upon the accepted quantity of work performed during the period for which escalated costs have been approved. The Department will pay increased material costs with an 8 percent mark -up to cover administrative costs and any material waste inherent to the Work.
e.Field Overhead. The Department will pay any Contractor or subcontractor for field overhead costs which include the cost of supervision, field office and office supplies, and utilities for which payment is not provided for in
109.05 D.2.f, during a delay period provided all of the following criteria are met:
1.The Contractor or subcontractor has incurred an excusable, compensable delay that delays the Work at least 10 Calendar Days beyond the original Completion Date. These days are cumulative th roughout the project. 109.05 84 (2) The delay for which payment of field overhead is sought is only due to delays defined in 108.06.D.2, 108.06.D.3, 108.06.D.5 or for delays due to revised Work as specified in 104.02.B or 104.02.F. The Department will pay the salary and fringes plus a 5 percent markup for field personnel identified in Table 109.05 -4. TABLE 109.05 -4 Original Contract Amount Field Personnel Up to $5,000,000 One Superintendent $5,000,001 to $50,000,000 One Superintendent, One Assistant Superintendent or One Engineer, One Clerk Over $50,000,000 One Superintendent, One Assistant Superintendent, One Engineer, One Clerk Superintendent’s transportation is compensable at the same rate allowed for forema n’s transportation in Section 109.05.C.5, which includes the cost of mobile communication devices. The allowed hours are when the superintendent is at the project site. Superintendent’s subsistence, provided this is the company’s terms of compensation to s uch employees, as documented by the Contractor’s written company policy or contracts with their employees. The Contractor’s or subcontractor’s field office costs include field office trailers, tool trailers, office equipment rental, temporary toilets, and other incidental facilities and supplies. Compute these costs on a Calendar Day basis. Owned trailers are paid at the Blue Book rate. Rented trailers are paid at the invoiced cost plus a 15 percent markup. Rented office space, toilets, and office equipment are allowed a 5 percent markup. Purchased office supplies are allowed a 5 percent markup. Office utilities include, but are not limited to, telephone, electric, water, and natural gas. Compute these costs on a Calendar Day basis and allow a 5 percent mark up.
f.Home Office Overhead. The Department will pay the Contractor for home office overhead, unabsorbed home office overhead, extended home office overhead, and all other overhead costs for which payment is not provided for in
109.05 D.2.e, including over head costs that would otherwise be calculated using the
Eichleay formula or some other apportionment formula, provided all of the following criteria are met:
1.The Contractor has incurred an excusable, compensable delay that delays the Work at least 10 Calendar Days beyond the original Completion Date. These days are cumulative throughout the project.
2.The delay for which payment of home office overhead is sought is only due to delays defined in 108.06.D.2, 108.06.D.3 and 108.06.D.5. Any subcontracto r that has approved C -92’s for subcontracted work totaling $4,000,000 or more is eligible for reimbursement of home office 109.05 85 overhead provided the criteria set forth in 109.05.D.2.f.(1) and 109.05.D.2.f.(2) are met. Payment will be made for every eligible da y beyond the original contract completion date at the rate determined by 109.05.D.2.f.i. Payment for eligible days occurring during an unanticipated construction period will be calculated in accordance with 109.05.D.2.f.ii. Payment for eligible days occurr ing during an unanticipated winter period will be calculated in accordance with
109.05 D.2.f.iii.
i.Home Office Overhead Daily Rate Calculate the home office overhead daily rate using the following formula: Daily HOOP = (A × C)/B Where: A = original con tract amount B = contract duration in Calendar Days C = value from Table 109.05 -5 TABLE 109.05 -5 Original Contract Amount C Up to $5,000,000 0.08 $5,000,001 to $25,000,000 0.06 Over $25,000,000 0.05 Daily HOOP = home office overhead daily rate Contract duration term, B, includes every Calendar Day from the execution of the Contract, unless otherwise specified by the Director, to the original Contract Completion Date. When the Contractor requests home office overhead compensation for a subcontra ctor, use the above formula to calculate the subcontractor’s Daily HOOP; however, in the subcontractor calculation, A is equal to the subcontractor’s portion of the original contract amount as determined by the sum of all approved C -92’s issued for the sub contracted work. (ii) Home Office Overhead Payment for an Unanticipated Construction Period Calculate the home office overhead payment for an unanticipated construction period occurring between May 1 and November 30 using the following formula: CP HOOP = D aily HOOP × D Where: D = sum of all excusable, compensable delays in Calendar Days minus the sum of all delays due to 108.06.D.1 and 108.06.D.4 in Calendar Days Daily HOOP = daily home office overhead rate 109.05 86 CP HOOP = home office overhead payment for an unanticipated construction period occurring between May 1 and November The excusable, compensable delay term, D, is the additional, unanticipated extended period for work performed between May 1 and November 30 in Calendar Days. (iii) Home Office Overh ead Payment for an Unanticipated Winter Period Calculate the payment for home office overhead for an unanticipated winter period occurring between December 1 and April 30 using the following formula: WP HOOP = Daily HOOP × F × D/E Where: D = sum of all ex cusable, compensable delays in Calendar Days minus the sum of all delays due to 108.06.D.1 and 108.06.D.4 in Calendar Days E = sum of all excusable, compensable delays in Calendar Days plus the sum of all excusable, non -compensable delays in Calendar Days F = 151 for a non -leap year or 152 for a leap year Daily HOOP = daily home office overhead rate WP HOOP = home office overhead payment for an unanticipated winter period occurring between December 1 and April 30 Payment for Home Office Overhead for an unanticipated winter period will not be made when the value of the remaining work is below the lesser of $500,000.00 or 10 percent of the estimated final contract value. (iv) Total Home Office Overhead Payment Calculate the total home office overhead payment using the following formula: Total HOOP = CP HOOP + WP HOOP Where: CP HOOP = home office overhead payment for an unanticipated construction period occurring between May 1 and November WP HOOP = home office overhead payment for an unanticipated winter period occurring between December 1 and April 30 Total HOOP = total home office overhead payment
g.Subsistence and Travel Allowance. The Department will pay costs for subsistence and travel allowances for labor that must remain on the Project during the delays, when such payments are required by the collective bargaining agreement or other employment contracts applicable to the classes of labor employed on the project. Overnight lodging will be reimbursed if the person is at a location greater th an forty -five miles from their residence up to a maximum of $106 109.06 87 per day. Meals and incidental expenses will reimbursed up to a maximum of $56 per day. The Department will not pay a percent markup on these costs.
E.Changes in Materials . Changes in material specifications that result in increased cost to the Contractor are compensated by lump sum adjustment to the reference number. The allowed compensation is equal to the invoice supported material cost increase plus 15 percent markup for profit and overhead. Material cost savings resulting from a specification change shall be credited to the project by a lump sum adjustment to the reference number plus a 15 percent markup if the originally specified material has not been ordered. If the original mat erial was ordered before the Contractor was informed of the change, the savings markup allowed is 2.5 percent in order to exclude profit on the original bid price and pay only for incurred overhead.
109.06 Directed Acceleration. The Engineer may order the Contractor to
accelerate the Work to avoid delay costs or to complete the Project early. The Director and the Contractor will negotiate acceleration costs.
109.07 Inefficiency. The Department will compensate the Contractor for
inefficiency or loss of pro ductivity resulting from 104.02 Revisions to the Contract Documents. Use the Measured Mile analysis comparing the productivity of work impacted by a change to the productivity of similar work performed under un - impacted conditions to prove and quantify the inefficiency.
109.08 Unrecoverable Costs. The Contractor is not entitled to additional
compensation for costs not specifically allowed or provided for in 109.05 including, but not limited to, the following:
A.Loss of anticipated profit.
B.Consequential damages, including loss of bonding capacity, loss of bidding opportunities, insolvency, and the effects of force account work on other projects, or business interruption.
C.Indirect costs.
D.Attorney’s fees, claim preparation expenses, and the costs of l itigation.
109.09 Estimates. If satisfactory progress is being made, the Contractor will
receive monthly payments equaling the Work and materials in place. The monthly payment is approximate, and all partial estimates and payments are subject to correction in the Final Estimate and payment. Payment for Work and materials shall not, in any way, prevent later rejection when defective Work or material is discovered, or constitute acceptance under 109.11 or 109.12. Any pay item deficient in material approval ca n be withheld for payment on an estimate. Except for estimates generated during Project finalization, the Department will not pay an estimate until the Contractor certifies to the Engineer that the work for which payment is being made was performed in acco rdance with the contract. Certification will be made on forms provided by the Department. The Department may pay estimates twice each month if the Engineer concludes the amount of work performed is sufficient. 109.10 88 No estimate or payment shall be construed as a cceptance of defective Work or improper materials. The Department will not pay the adjusted final estimate until the Contractor remedies all defective Work and accepted Work damaged by the Contractor’s operations. Interest will be paid in accordance with O RC 126.30 when warranted.
109.10 Payment for Delivered Materials. The Department will pay, up to 75
percent of the applicable contract item, for the invoiced cost of the delivered and approved materials before they are incorporated in the Work, if the approved materials are delivered, accepted, and properly stored on the project or stored in acceptable storage places in the vicinity of the Project. The Department will pay for the cost of approved materials before they are incorporated in the Work when a sked by the Contractor, if the Engineer determines that it is not practical to deliver the material to the Project site. This provision applies only to bulky materials that are durable in nature and represent a significant portion of the project cost, such as aggregates, steel, and precast concrete. The Department will pay for un -fabricated structural steel if the following requirements are met:
A.The Contractor has provided both the Engineer and the Office of Materials Management an itemized invoice from the steel mill for the steel for which reimbursement is requested
B.Project structural Steel design plans are complete with no forthcoming revisions. For design build projects, Contractor accepted show drawings per 501.04, will need to be provided. C Contractor accepted certified test data for all steel in question along with mill shipping notices have been received by the Office of Materials Management per 501.06.
D.The steel is properly stored to allow inspection by the Office of Materials Manageme nt. It shall also be properly set apart from other material and identified as belonging to ODOT.
E.The Contractor will provide the Engineer a written statement that under 106, the Contractor is responsible for the steel that has been paid for until the a ctual steel is erected and accepted in the field.
F.Payment shall only be authorized after all the aforementioned documentation has been received by the Office of Materials Management and the steel has been inspected by the Office of Materials Management to verify that all steel listed in the itemized invoice has been received by the fabricator and properly stored. The amount to be paid shall be equivalent to the itemized invoice from the steel mill, but shall not exceed 50% of the bid price for the struc tural steel. The Department will not pay delivered materials on small warehouse items or for plant materials.
109.11 Partial Acceptance. Upon completion of a portion of the Work, the
Contractor may request acceptance of a completed portion of the Work. 109.12 89 A. An inspection may be performed on a completed portion of the project roadway section provided:
1.All safety items are in place including permanent pavement markings.
2.Traffic is in its final pattern.
3.A completed portion of the project constitutes a completed geographic section of the project or a direction of traffic on a divided highway.
4.Is in accordance with other contract provisions.
B.An inspection may be performed on a completed bridge provided:
1.All work on the bridge and approaches are complete, including all safety items and permanent pavement markings.
2.The Contractor will not return to the bridge for any work except as allowed in 4.
3.Traffic is in its final pattern.
4.Painting of structural steel is either completed or scheduled to be performed.
5.Is in accordance with other contract provisions. The Final Inspector will grant written partial acceptance for that portion of the Work or reject the Contractor’s request. Such written partial acceptance will designate what portion of t he Work is accepted, the date of acceptance, and the warranty provisions started by the partial acceptance. Partial acceptance will relieve the Contractor of maintenance responsibility for the designated portion of the Work. This does not relieve the Contr actor of responsibility to correct defective Work or repair damage caused by the Contractor or waive any other remedy to which the Department is entitled at law or in equity .
109.12 Final Acceptance .
A.Final Inspection . The Department will perform a Final Inspection for the sole purpose of relieving the Contractor of maintenance responsibility for the Work. The Final Inspection shall be a limited visual review of the Work and shall only serve as the Department’s verification that the Work appears substantially complete. Final Inspection does not waive any available rights or remedies of the Department, nor divest the Contractor of any responsibility for compliance with the contract or liability for damages. Notify the Engineer when the Project is complete and all of the Engineer’s punch list items are complete. If the Engineer agrees the Project is complete, then within 10 business days the District Final Inspector will inspect the Work and categorize it as one of the following:
1.Unacceptable or not complete.
2.Substantially complete with punch list items found by the Final Inspector. 109.12 90 3. Substantially complete. If the Final Inspector finds the Work substantially complete or substantially complete with punch list items, then the Contractor’s maint enance responsibilities end on the day of the Final Inspection, except for any maintenance related to unfinished punch list items. This does not relieve the Contractor of responsibility to correct defective Work or repair damage caused by the Contractor or waive any other remedy to which the Department is entitled at law or in equity. The Final Inspector will issue a Final Inspection Report that will document the findings of the inspection and start any warranty period.
B.Punch List . The Final Inspector wi ll issue to the Contractor a written punch list of work required as a condition of acceptance. For project involving multiple public agencies, the Final Inspector will receive and compile punch lists from all agencies that have authority to provide one pri or to issuing the Department’s punch list. The Final Inspector’s punch list will stipulate a reasonable time to complete the required Work. Failure of the Contractor to complete the punch list items by the stipulated time will result in the assessment of f ifty percent of the Liquidated Damages according to 108.07 for each Calendar Day for every day beyond the stipulated time the punch list work remains incomplete and beyond the revised Completion Date.
C.Finalization. The Contractor shall accept the final quantities as determined by the Engineer or provide a written notice indicating the reason for disagreement within 30 Calendar Days of receiving the Engineer’s list of final quantities. The prescribed 30 Calendar Day period can be modified by mutual agreem ent of the Contractor and the District Construction Engineer. If no notice of disagreement is received, then the final payment will be based on the Engineer’s list of final quantities. Supply all documents necessary for Project finalization within 60 Calen dar Days from the date that the Work is physically complete. These documents include:
1.Delinquent material certifications.
2.Delinquent certified payrolls or required revised payrolls.
3.Wage affidavit required by ORC Chapter 4115 on projects without a ny Federal funding.
4.Delinquent force account records.
5.If applicable, DBE affidavits.
6.Any other document required to complete finalization of the project. Failure to submit these acceptably completed documents will result in an administrative fee o f $100 per Calendar Day for every day that any of the required documents remain delinquent, starting 30 Calendar Days after receipt of written notification from the Engineer of a document deficiency.
D.Final Payment. Final payment is based on:
1.The agre ed final quantities or as determined by the Engineer if agreement is not possible, no compensation for unauthorized work is allowed. 109.12 91 2. Finding of substantial completion by the Final Inspector.
3.Receipt of acceptable finalization documents.
4.Contractor certification that the Work was performed in accordance with the contract.
E.Completion of Contract and Continuation of Contractor’s Responsibility. The Contract is complete, except for items covered by the required bonds, when the Contractor receives final payment. The DCA will issue a letter confirming completion of the contract, noting any exception as provided in Items 659 and 661 and any warranty. The date the final payment is approved by the District constitutes acceptance for the purpose of ORC 5 525.16. Neither Completion of the Contract nor substantial completion relieves the Contractor of any responsibilities to properly perform or correct the Work or to repair damage or waives any remedies to which the Department is entitled at law or in equity .
Source: Ohio Construction and Material Specifications, 2019 Edition. Pages 0–0 of 928.