108.01 Prosecution and Progress
108.01 Subletting of Contract
The Department will not allow the Contractor to sublet, sell, assign, or otherwise dispose of the Contract, or any portion thereof, or any of the Contractor's rights, title, or interest therein without the written or electronic consent of the S tate Construction Engineer or an authorized representative. Perform at least 50 percent of the Contract amount, based on the contract unit prices, using its own organization, unless the Contract allows a greater percentage. The Department will consider t he Contractor's own organization to include only workers employed and paid directly by the Contractor, equipment owned or rented by the Contractor, and materials purchased by the Contractor for its use in performing Contract work. This does not include em ployees, equipment, or materials purchased by or incorporated into work of any subcontractor, assignee, or agent of the Contractor. The Department considers the use of entire work crews or major components of work crews and equipment of another contractor to be subcontracting, subject to approval by the Resident Engineer. The Department will not allow the Contractor to include another contractor’s work crews, or major components of such work crews, on the Contractor’s certified payroll. At any location w ithin the project where work is in progress by either the Contractor or an approved subcontractor, have a competent superintendent or supervisor who is an employee of the Contractor responsible for all construction operations, and who has full authority to direct performance of the work in accordance with Contract requirements. All subcontracts shall incorporate the Contract, either by physical inclusion or by reference. All subcontracts shall incorporate and include all Federally imposed requirements pert aining to equal opportunity, disadvantage business opportunity, Title VI of the Civil Rights Act of 1964, the Davis -Bacon Act, prompt payment to subcontractors, service companies, service providers, or material suppliers (49 C.F.R. § 26.29) and such other requirements as may be contractually imposed. The Department reserves the right to inspect all subcontract documents. Make all subcontracting documentation available for inspection at his/her usual place of business during normal business hours. Have subcontractors, service companies, or material suppliers acknowledge the inclusion of a FHWA Form 1273 as part of their agreement with the Contractor. The Department will approve subcontracts only for entire contract pay items required by the Contract by specified unit price and shall include all labor, equipment usage, materials, and manufactured products necessary to complete the unit. The Department will determine the value of subcontracted work using the contract bid price of the subcontracted work uni t. Obtain approval of each subcontract before the start of the work included in the subcontract. The Department will not allow “labor and equipment only” or “labor only” subcontracts, unless otherwise required by the Contract. The Department may not pa y for work performed by an unapproved subcontractor. The Department will not recognize or approve second or third tier subcontractors. The Contractor and approved subcontractors may retain and use the services of “Specialized Service Providers” if such se rvices are reasonably necessary for the performance of Contract work and if approved by the Resident Engineer. PROSECUTION AND PROGRESS 108.01 The Department considers “Specialized Service Providers” to be companies or individuals that perform services that may require specialized knowl edge, experience, equipment, or any combination of these. Specialized services must be necessary to the completion of a portion or component of a work unit and may not be separately identified as a Contract item. The Department will not include the cost of work performed by “Specialized Service Providers” as subcontracted work for calculating the subcontracted percentage of work. Specialized services include, but are not limited to, the following: Reinforcing steel placement or tying Rock blasting, Beam fabrication, Pier drilling, Drilled shaft CSL and SID testing. Welding, Concrete pumping, Profilographing, Bump grinding, Surveying and staking, Engineering and testing, Irrigation system or plumbing, Material hauling, and Watering. If the Contract identif ies contract pay items as “Specialty Items ,” the Department will allow approved subcontractors to perform the work and will deduct the cost of "Specialty Items" performed by subcontract from the total Contract amount before calculating the amount of work t he Contract requires be performed by the Contractor with its own organization. “Specialty Items” are contract pay items that are specific to the Contract and which are not normally found as a part of highway associated construction. Specialty items may r equire the services of skilled trades for construction of facilities, which are ancillary to the highway and may include carpenters, licensed plumbing and electrical tradesmen, and other skilled craftsmen who are not normally involved in highway constructi on. Submit requests for permission to sublet, or otherwise dispose of any portion of the Contract work, to the State Construction Engineer, by means of Department approved electronic media or in writing. Include in the request a statement showing that t he organization (subcontractor) that will perform the work is particularly experienced and equipped for such work. Give assurance that the minimum wage for labor, as stated in the proposal, shall apply to labor performed on all work sublet. No subcontra cts, or transfers of the Contract, shall in any case release the Contractor of its liability under the Contract and bonds. Should the Contractor assign any of its right, title, or interest in the Contract, said assignment shall be made only with the full k nowledge and written consent of the Surety. It is specifically understood that a violation of this subsection will constitute an act of default on the part of the Contractor.
108.03 Prosecution and Pro Gress
108.02 Notice To Proceed An D Preconstruction Co Nference
The Notice to Proceed is the written authorization for the Contractor to proceed with the Contract work. In no case shall work, other than mobilization, start before the Department issues the Notice to Proceed. The Department will begin charging Contract Time from the time work actually starts, but not later than the effective date of the Notice to Proceed. Provisions in the Contract may establish project - specific details regarding access to the work and time charges. After the Contractor receives the Notice to Proceed and befo re the start of construction, the Contractor and Resident Engineer shall hold a preconstruction conference. Have the following people present at the preconstruction conference: The project superintendent, Other representatives or responsible officials wh o will be involved during the construction of the project, and Representatives of any subcontractors. The Resident Engineer may invite officials of local county and municipal governments, representatives of affected utility companies and other agencies to establish a working understanding and to provide for the coordination of the work among the various parties, allowing the work to proceed with minimum delay. The discussion of the project at the preconstruction conference may include, but not be limited to , issues regarding the following: The Contractor’s plans and schedules, Location of the work beginning, Utilities, Right of way, Agreements affecting the construction, Compliance with permits that have been issued, Unusual conditions, Compliance with Disadvantaged Business Enterprise (DBE) goals, and Other applicable requirements such as stormwater management, pollution controls and other pertinent items. The parties at the preconstruction conference may discuss contract items to ensure that all partie s understand the type of materials required, the method of construction, and the method of measurement and payment.
108.03 Prosecution and Prog Ress
Provide sufficient materials, equipment, and labor to guarantee the completion of the project within the Co ntract Time. Submit an as -planned progress schedule to the Resident Engineer for review and acceptance before starting work. The progress schedule will establish the Contractor’s planned construction operations. The Resident Engineer will use the progre ss schedule to monitor the progress of the work. The progress PROSECUTION AND PROGRESS 108.03 schedule will provide for completion of the project within the Contract Time and will use all of the time provided by the Contract. The Department will allow the Contractor to provide a progres s schedule in the form of an activities schedule chart (ASC) and written narrative (WN) in accordance with Subsection 108.03.A, “Activities Schedule Chart and Written Narrative,” or a critical path schedule in accorda nce with Subsection 108.03.B, “Critical Path Method (CPM) Schedule,” unless the Contract specifically requires a CPM schedule.
A.Activities Schedule Chart and Written Narrative The ASC and WN shall provide a detailed break down of the time (working days or completion date) involved in performing major construction activities for the duration of the project. The ASC shall be used for the coordination and Department monitoring of major work in the Contract, including th e activities of subcontractors, vendors, and suppliers.
1.Schedule Requirements Ensure that all ASCs it submits to the Department include the following: A bar chart, chronologically sequenced and time scaled, with a number of activities appropriate to t he project showing construction prosecution or preparation activities; Activity descriptions for each activity bar on the chart; and Activity durations by calendar days.
2.Written Narratives Ensure that all WNs it submits to the Department include the f ollowing: The proposed work process sequence showing major work activities required for the complete performance of all items of work under the Contract, including major shop drawing submittals, permits, fabrication, delivery activities, etc.; A description of readily identifiable work activities; A description for each bar identifying the trade or entity performing the work, the duration of the activity in work days, and the location of the work; and A description indicating work days per week, h olidays, number of shifts per day, number of hours per shift, and major equipment to be used.
3.Preparation of Initial Schedule Develop the initial ASC and WN and submit two copies of each to the Resident Engineer at the preconstruction conference. The Department will not allow the construction time, showed by the ASC and WN, for the entire project or any milestone to exceed the Contract Time. Following the Resident Engineer’s initial review of the ASC and WN, the Resident Engineer and Contractor shall meet for a joint review, correction, and adjustment of the schedule if required. If necessary, the Resident Engineer and the Contractor will repeat this process, and complete the initial schedule within 30 calendar days after the preconstruction conferenc e. If the Contractor does not provide an acceptable initial schedule by that date, the Department will withhold contract payments until the Department receives an acceptable initial schedule.
108.03 Prosecution and Progress
4.Progress Meetings The Resident Engineer and Contractor shal l hold progress meetings coinciding with submittal of progressive estimates to verify actual progress. In addition, the Department may require job -site progress meetings to address Change Orders, time extensions (if time extensions total at least 21 calend ar days), or other circumstances as directed by the Resident Engineer. Submit copies of revised progress schedules to the Resident Engineer.
B.Critical Path Method (CPM) Schedule A CPM progress schedule shall employ a network analysis system as describe d below. The Contractor is responsible for developing and implementing this system for the planning and scheduling of construction. As a minimum, prepare the network analysis system in a form acceptable to the Department. The Department will consider sc heduling methods other than CPM on an individual basis. The system shall consist of network diagrams, computer mathematical analysis, calendar, and narrative. The network diagram shall show the order and interdependence of activities and the sequence of t he work to be accomplished as planned by the Contractor in coordination with all subcontractors and other prime contractors. The basic concept of the network diagram shall be followed to show how the start of a given activity is dependent on the completio n of preceding activities and its completion restricts the start of following activities. The detailed network activities shall include, in addition to construction activities, the submittal and approval of materials and shop drawings, and the procurement, installation and testing of materials and equipment that the Resident Engineer determines significant. The system shall show early completion of certain portions of the project as required by the Contract. To provide the necessary level of detail, the De partment will not allow work activity durations longer than 30 calendar days, unless otherwise approved by the Resident Engineer. The Department reserves the right to limit the number of activities on the schedule to between 50 to 500 activities. Detail ed networks shall show a continuous flow from left to right, drafted on paper 24 in [610 mm] wide and 36 in [914 mm] long. The drafted network diagram shall contain readable alphanumeric characters. The network diagram arrangement shall allow sufficient room between diagram paths for “red line” modification of existing activity and/or diagram arrangement. Ensure the diagram shows the following information for each activity: Identification number, Description, and Duration in calendar days. Ensure that the critical path is highlighted to distinguish it from other diagram paths. The application software program used shall be capable of compiling all completed and partially completed activities. The program shall be capable of accepting revised completion dates as modified by approved time adjustments and recalculating all tabulation dates and total float accordingly. The software program shall be capable of listing the activities in sorts or schedules as follows: In order of activity numbers. By total flo at. PROSECUTION AND PROGRESS 108.03 Update the mathematical analysis of the network diagram monthly, unless waived by the Resident Engineer in writing. The cover sheet for each monthly update shall list the following: State job number, ODOT project number and description, Contractor nam e, Reporting period, Scheduled completion date, and Actual completion date and variation from schedule. At the preconstruction conference, submit a preliminary network analysis system defining the Contractor’s planned operation for the first 60 calendar days after the date of the notice to proceed and shall show the Contractor’s general approach for the balance of the project. Within 30 calendar days after the date of the preconstruction conference, submit to the Resident Engineer a complete network analysi s system consisting of the computer mathematical analysis and diagram, unless extended in writing by the Resident Engineer. Submit four copies of the initial diagram, calendar, and computer analysis, and four copies of the monthly updated computer analys is. The Resident Engineer will review the detailed network analysis system for logic and conformance to the Contracts, including any special notations in the plans pertaining to sequence of operations. Within 15 calendar days after the Resident Engineer’s receipt of the detailed network analysis system, the Contractor and the Resident Engineer shall meet for joint review, correction, and adjustment of the schedule, if necessary. The Department will not allow the construction time, as determined by the CPM schedule, for the entire project or any milestone, to exceed the Contract Time. Revise the schedule logic or activity durations if the schedule does not meet any milestone date or Contract Completion Date. After this joint meeting, but within 15 calend ar days of the Resident Engineer and Contractor agreeing on schedule logic or activity duration changes, submit to the Resident Engineer a revised schedule, including four copies of the diagram, an activity number order sort, and a total float sort. If n ecessary, the Resident Engineer and the Contractor will repeat this process, and, complete the initial schedule within 30 calendar days after the preconstruction conference. If the Contractor does not provide an acceptable initial schedule by that date, t he Department will withhold contract payments until the Department receives an acceptable initial schedule. The Department and the Contractor will hold monthly job -site progress meetings to update the progress schedule. The Resident Engineer will review t he progress schedule update to verify start and finish dates of completed activities, remaining duration of uncompleted activities, and proposed revisions to logic, time estimate, or both. It is the Contractor’s responsibility to provide the Department wi th the status of activities at these progress meetings and to provide the progress schedule updates once the Resident Engineer has verified the status of activities. Create new CPM activities to reflect any precise period of delays that will affect the Co ntract Completion Date. The Contractor and the Department will agree on the start date and the finish date of the delay activities and the logic -dependent relationship to the activities of the affected predecessor and successor activities.
108.03 Prosecution and Progress
Submit four co pies of the progress schedule update illustrating the verified progress, no later than the fifth day of each month. The progress schedule update shall include an activity number sort, a total float sort, and a written narrative describing the critical pat h and logic revisions or modifications to the schedule, including, but not limited to, the following: Changes in the method or manner of the work, Changes to the Contracts, Extra work, Changes in activity durations, and Reasons for delay. The Department wi ll not allow logic revisions or modifications without prior approval by the Resident Engineer. If the Contractor does not provide a monthly network analysis system update by the date required above, the Department will withhold contract payments until the Department receives the monthly network analysis system update. Submit two copies of revised diagrams for the following: Delays to the completion of critical activities; Actual prosecution of the work that is significantly different than that represented on the schedule, as determined by the Resident Engineer; Additions, deletions, or revisions of activities required by Contract modification; and Revisions to the schedule's logic or calendar. The Resident Engineer will only adjust the Contract Time in acco rdance with Subsection 108.07, “Administration and Extension of Contract Time.” As determined by computer analysis, only delays in activities, which affect milestone dates, critical path, or Contract Completion Dates, w ill be considered for a time extension under this subsection. If the Contractor seeks a time extension of any milestone or the Contract Completion Date, furnish documentation as required by the Department to enable the Department to determine whether a tim e extension is appropriate under the terms of the Contract. Float is a commodity owned by the Contract (Contractor and Department) and may be used by the Department or Contractor on a first -come first -serve basis.
C.A + B Contract Administration Time wil l be assessed against the Contract from the time work commences, or from the Effective date of the Notice to Proceed, whichever is earlier. “B” Time will be assessed against the Contract from the time work commences, or from the Effective Date of the Notic e to Proceed, whichever is earlier. The time bid (“B” Bid) will be administered in accordance with Subsection 108.08, “Incentive/Disincentive for Early/Late Completion.” Unless otherwise specified, the time bid (“B” B id) to substantially complete the project includes all working and non -working days, weekends, special events, holidays, normal adverse and unusually adverse weather days, and lost time resulting from such weather conditions. Claims for delay or lost time will be considered by the Engineer on the basis of actual delay, and adjustments to the contract time or the “B” Bid may be made as appropriate for purposes of calculating incentive and PROSECUTION AND PROGRESS 108.05 disincentive payments. In order to consider any delay it must be sho wn to affect the critical path of the project schedule. Unusually severe weather days may be recognized only for the purpose of identifying time not subject to liquidated damages, unless these delays are the result of a natural disaster as declared by the State or Federal Government. Disincentives will continue to be assessed until substantial completion is achieved. The time required by the Engineer for performing normal inspections, testing and review duties shall be considered as included in the time b id. Every effort will be made by the Engineer to perform normal inspection testing and review in a manner which will not delay work progress.
1.Incentive Payments Incentive payments will be administered in accordance with Subsection 108.08, “Incentive/Disincentive for Early/Late Completion.”
2.Disincentive Assessments Deductions for disincentives, including liquidated damages, will be assessed in accordance with Subsection 108.08, “Incentive/Disincentive for Early/Late Completion.” Liquidated damages will be charged effective one minute following the expiration of the contract time and will continue until the project is completed. Liquidated damages will be assessed in addition to the disincentive assessment, if applicable, and will be charged against each progressive estimate until completion is achieved.
3.Schedule Prepare and submit a Critical Path Method (CPM) analysis in accordance with Subs ection
108.03 B within 30 days of the award of the contract. Submit any revisions made to the original
schedule to the Engineer. Upon request, but no more than once every 30 days, prepare and submit CPM updates to the Engineer. Include costs of preparin g and maintaining the CPM in other items of pay.
108.04 Limitation of Operat Ions
Perform construction operations to ensure the least interference with traffic, regarding the location of detours and the provisions for handling traffic. If the opening of a section of the project is essential to public convenience, the Resident Engineer may direct the Contractor to finish that section of the project before starting another section or sections.
108.05 Character of Workers
Employ sufficient resources for pros ecuting all classes of work in the manner and time required by the Contract. Ensure all workers have sufficient skill and experience to properly perform their assigned work. If a worker, employed by the Contractor or subcontractors, does not perform the work in a proper and skillful manner or is intemperate or disorderly, remove the worker from the project at the written request of the Resident Engineer, and shall not be re -employed without the approval of the Resident Engineer. If the Contractor or subc ontractor fails to remove the worker, or fails to provide suitable and sufficient
108.07 Prosecution and Progress
personnel for the proper prosecution of the Work, the Resident Engineer may suspend the Work by written Shut Down Order in accordance with Subsection 104.05, “Suspension of Work Ordered by the Resident Engineer,” until the Contractor or subcontractor removes the worker or provides sufficient personnel. If the Contractor fails to provide a qualified work force or supervision to properly pro secute work, the Department may refuse to issue Proposal Forms for future contracts in accordance with Subsection 102.04, “Refusal of Proposals. ”
108.06 Methods and Equipmen T
The Contractor is responsible for the follow ing: Providing and using equipment of sufficient size and mechanical condition to produce work that meets the Contract requirements; and Ensuring the equipment used does not cause damage to the roadway, adjacent property, or other highways. If the Contract specifically requires methods and equipment the Contractor is to use, the Contractor may not use other methods and equipment unless requested in writing and approved by the Resident Engineer. The request shall include a description of the methods and equ ipment proposed and the reasons for changing from those required by the Contract. If the Resident Engineer approves the change, the Contractor is responsible for producing work meeting the Contract requirements. The Resident Engineer may, if demonstrable improvement in the work or time savings occur change the following: The basis of payment for the involved contract items, or The Contract Time. If the Resident Engineer determines that the work produced using the substituted methods or equipment does not meet the Contract requirements, discontinue use of the substitute methods or equipment and complete the remaining work using the methods and equipment required by the Contract. Repair or remove and replace deficient work at no additional cost to the Depa rtment.
108.07 Administration and E Xtension of Contract Time
A.General The Proposal Forms and Contract will state the Contract Time. The Resident Engineer will provide a monthly statement (Time and Diary Report) to the Contractor showing the number of da ys charged to the Contract for the preceding month and the number of days remaining for completion of the Contract as of the end of the preceding month. If the Contractor disagrees with the statement, submit a written protest to the Resident Engineer with in 10 calendar days of receiving the statement and shall include reasons why it believes the statement to be incorrect. If the Contractor does not submit the protest within 10 calendar days, the Contractor will waive all rights to protest that time charge . A separate written protest of time charges submitted within the required 10 calendar day period is a requirement that must be satisfied before any corrections will be made to assessed Contract Time charges. PROSECUTION AND PROGRESS 108.07
B.Calendar Day Contract If the Contract Time is on a calendar day basis, it shall consist of the number of calendar days required by the Contract, counting from the effective date of the Notice to Proceed or from the date the Contractor begins work, whichever is earlier, including all Sundays, holida ys, and non -work days, except as otherwise required by the Contract. The Department will exclude time charges for all calendar days elapsing between effective dates of any orders of the Engineer to suspend work and to resume work after suspensions, not th e fault of the Contractor. The Engineer may suspend time charges once the project reaches substantial completion, as defined in Subsection 105.17.A, “Substantial Completion. ” This suspension is contingent upon the Contractor’s diligence in completing any remaining work. The Resident Engineer will grant time extensions or suspensions for a calendar day contract that contains incentive/disincentive provisions for the time period subject to the incentive/disincentive provision in accordance with applicable Contract provisions and Subsection 108.08, “Incentive/Disincentive for Early/Late Completion.”
1.Extensions for Adverse Weather The Department will consider the occurrence of adverse weather conditions during the Contract Time to be a basis for extending the Contract Time if the time or Work is not already suspended for other reasons. The Resident Engineer will determine extensions of the Contract Time for adverse weather condi tions on a daily basis and will only extend the Contract Time if adverse weather prevents the performance of work activities critical to milestone or Contract completion. Make every reasonable effort to minimize the impact of the adverse weather conditio ns. The Department will consider days designated by an appropriate authority as “ozone alert days” to be adverse weather days, if that authority requires the Contractor to suspend or delay work activities that are critical to milestone or Contract completi on. Make every reasonable effort to minimize the impact of ozone alert days. The Resident Engineer may justify and document an extension to the Contract Time due to adverse weather by crediting an adverse weather day on the monthly Time and Diary Report with an explanation for the credit. The Contractor may file a written protest of the time charges indicated on the monthly report in accordance with Subsection 108.07.A, “Administration and Extension of Contract Time , General. ” If the Resident Engineer did not justify and document the extension to the Contract Time on the Time and Diary Report, the Resident Engineer will justify and document the extension with a Change Order.
2.Extension for Non -weather Related Del ays Beyond the Contractor’s Control The Department may consider the occurrence of delays to the Contractor’s operations that are beyond the Contractor’s control to be a basis for extending the Contract Time, if the time or work is not already suspended for other reasons. Provide written notice to the Resident Engineer within 7 calendar days of the start of any delay the Contractor believes justifies an extension to the Contract Time. Within 30 calendar days of the
108.07 Prosecution and Pro Gress
end of the delay, submit a written reques t to the Resident Engineer for the extension to the Contract Time that includes reasons for the extensions and supporting documentation. If the Contractor does not provide the written notice or submit the written request within the time allowed, the Resid ent Engineer will not consider the request for the delay. The Contractor may only request extensions to the Contract Time for the delays that meet the following criteria: Beyond the Contractor’s control; Not the fault of the Contractor or its subcontracto rs, suppliers, and vendors; and Prevent or impede the performance of work activities that are critical to milestone or Contract completion. The Department will base the number of calendar days in the Contract Time as awarded on the original quantities in a ccordance with Subsection 102.05, “Interpretation of Quantities and Bid Proposal. ” If satisfactory completion of the Contract requires additional quantities work, greater than those stated in the Proposal Forms, the Re sident Engineer may increase the Contract Time commensurate with the amount and difficulty of the additional work. The Contractor may use scheduling methods described in Subsection 108.03(a), unless scheduling method, way prescribed in Subsection 108.03(b) is required by the Contract. The Resident Engineer will only consider time extensions for additional work or delays beyond the Contractor’s control that adversely impact the Co ntractor’s schedule and sequence of work and extend the Contract completion past the Contract Time. The Department will not consider the following Contractor arguments as grounds for an extension to the Contract Time: The Proposal Forms and the Contract d id not state a sufficient Contract Time, or Previously un -protested time charges were incorrect. Extended Contract Time approved by the Resident Engineer shall be in full force and affect the same as though it were the original Contract Time. If the Reside nt Engineer determines that an extension to the Contract Time that is due to non - weather delays is justified, the Resident Engineer will justify and document the extension with a Change Order.
3.Winter Time Suspension The Contractor may request a winter time suspension of time charges and work during the time period between December 21st and the following February 15th. The Contractor must make this request in writing to the Engineer at least ten (10) working days prior to the beginning date of the wint er time suspension. Upon receipt of the Contractor’s written request, the Engineer will perform a field review of the project to determine if a winter time suspension is suitable. As part of the review, consideration will be given to the following applica ble project components: more than 85% complete adverse impacts to the prosecution and progress of other projects on the interstate system lane or ramp closures PROSECUTION AND PROGRESS 108.07 lane or edge drop offs without a recoverable slope areas that require patching, obstructions (i. e. manholes, valve boxes, etc.) in the roadway that could hamper snow and ice removal exposed structural surfaces or subgrade areas that could pond water construction debris, materials, or equipment in the roadway clear zone temporary erosion control measures in place proper signage and striping in place driveways and side roads are accessible scheduled project deliveries and services (i.e. materials, inspections, etc.) expiring permits environmental mitigation as required by the contract; and items of work which, if left undone or unattended, would not be in the best interest of the Department or traveling public After this review, the Engineer will notify the Contractor in writing that the request for suspensions is approved, or that the request for s uspension is denied, citing the justification for such denial. If the Resident Engineer approves the request, make all necessary arrangements to leave the project in a safe manner. The Contractor will continue to maintain the project work site during this time suspension in accordance with Subsection 105.14, “Maintenance During Construction.” Items which do not affect the operational capacity or safety of the roadway that is open to traffic will not be subject to the 2 4 hour correction requirement. Any maintenance performed during the winter time suspension will be performed by the Contractor at no additional cost to the Department. Upon completion of the winter time suspension, the Engineer will perform a field review of the project to ensure that any previously constructed elements of the project have not been damaged. If any damage is discovered, the Contractor will return these elements to their condition prior to the winter time suspension at no additional cost to the Department. The winter time suspension is not to be used as a means for the Contractor to avoid time charges for weekends and holidays. If the Contractor chooses to perform work during the winter time suspension, the suspension will cease to be in ef fect and time charges will resume. Notify the Resident Engineer if work is to resume prior to February 15th. Liquidated damages will not be assessed for any portion of a winter time suspension that occurs after expiration of the contract time. A requested winter time suspension will not suspend time charges subject to an incentive/disincentive provision.
C.Fixed Completion Date Contract If the Contract Time is a Fixed Completion Date, satisfactorily complete all work under the Contract on or before that da te in accordance with Subsection 105.17, “Project Completion and Acceptance.”
108.07 Prosecution and Progress
The Contractor may only request extensions to the Fixed Completion Date for the delays that meet the following criteria: Beyond the Contract or’s control; Not the fault of the Contractor or its subcontractors, suppliers, and vendors; and Prevent or impede the performance of work activities that are critical to milestone or Contract completion. The Department will not allow extension to the Fixe d Completion Date caused by adverse weather, foreseeable causes, or conditions under the control of the Contractor. Subsection 108.07.B, “Calendar Day Contract, ” shall not apply to any Contract containing a Fixed Com pletion Date. If the Resident Engineer determines that an extension to the Fixed Completion Date is justified, the Resident Engineer will justify and document the extension with a Change Order.
D.Delays to Contract Time All requests for adjustment to Con tract Time shall identify delays actually encountered that prevent or impede the performance of work activities that are critical to milestone or Contract completion, in accordance with Subsection 108.07.B(2), “Exte nsion for Non -weather Related Delays Beyond the Contractor’s Control,” or Subsection 108.07.C, “Fixed Completion Date Contract,” at a point in time when such work was scheduled to be in progress. Use only a progress schedule submitted to the Department in accordance with Subsection 108.03.A, “Activities Schedule Chart and Written Narrative,” or Subsection 108.03.B, “Critical Path Method (CPM ) Schedule, ” before the start of the delayed work to support the Contractor’s request for an extension to the Contract Time or delay damages.
1.Excusable (Non compensable Delay) The Department will consider delays caused by the following for extensions t o the Contract Time: Acts of God, Acts of the public enemy, Fires, Floods, Epidemics, Quarantine restrictions, Strikes, Freight embargoes, Documented national or regional material shortages which are industry wide, State or national emergency declarations, Unusually severe weather, and Delays not caused by the Contractor’s fault or negligence. Delays necessitated by compliance with certain federally mandated programs that occur after the Contract is let may provide a basis for an excusable delay. The Depar tment will not allow additional compensation to the Contractor for such delays. PROSECUTION AND PROGRESS 108.07
2.Compensable Delay The Resident Engineer will consider additional compensation for Department caused delays that prevent the start of work on successive activities and will adversely impact Contract completion. Float time in the scheduling of successive work elements is a shared commodity and the Department will not pay the Contractor for the use of float time. The Department will pay additional compensation by Change Order in accordance with Subsection 109.10, “Compensation for Project Delays.”
3.Notification of Delay Within 7 calendar days of the occurrence of a delay, provide written notification to the Resident Engineer of such a de lay, and show that a request for delay consideration will be filed with the Department.
4.Procedures Following Notification of Delay After notifying the Resident Engineer of the request for delay consideration, keep daily records of all costs for non -salaried labor, material, and equipment for all operations affected by the delay. Maintain a daily record of each affected operation, including station locations. The Resident Engineer will also maintain a daily record of the affected operations. On the f irst work day of each week, the Contractor and Resident Engineer will meet and compare their previous week’s daily records, and prepare and submit written reports to the Resident Engineer containing the following information: Number of days behind schedule ; A summary of all operations that have been delayed, or will be delayed; In the case of a compensable delay, explain how the Department’s act or omission delayed each operation, and estimate the amount of time required to complete the project; and Contra ctor may request compensation for extra costs incurred as identified in Subsection 109.04, “Differing Site Conditions, Changes, and Extra Work.” Provide written notice to the Resident Engineer within 30 calendar days of the meeting, and shall include any disagreements between the records. If the Contractor does not meet with the Resident Engineer to compare daily records or to report disagreement s between the records, the Department will consider the Resident Engineer’s records to be accurate. The Department will not allow requests for delay costs allegedly incurred before the Contractor notified the Resident Engineer.
5.Procedures Following Com pletion of Work Alleged to be Delayed Submit to the Resident Engineer a report containing the following information, within 30 calendar days of project completion or completion of phase of work allegedly delayed: A description of the operations that were delayed and the documentation and explanation of the reason for the delay, including all reports prepared for the Contractor by consultants, if used; An as -built chart, or other graphical depiction of how the operations were delayed, and;
108.08 Prosecution and Progress
An item by item m easurement and explanation of extra costs requested for reimbursement due to the delay. The Resident Engineer will review the Contractor’s report and available inspection diaries, records, and reports. The Resident Engineer will provide a written decision to the Contractor within 60 calendar days of the receipt of the Contractor’s report. The decision will contain notification of any additional time the Resident Engineer will grant. In the case of compensable delays, if the Resident Engineer determines th at the Department is responsible for delays to the Contractor’s operation, the Resident Engineer’s written decision will identify the nature and extent of any delay and the compensation which may be due to the Contractor in accordance with Subsection 109.10, “Compensation for Project Delays.”
108.08 Incentive/Disincenti Ve for Early/Late Co Mpletion
If it is in the public’s interest to complete the project at the earliest possible date, the Contract may include an incentiv e/disincentive provision detailing applicable dates and work stages covered by the provision. For each calendar day the project or section of the project is opened to unrestricted continuous traffic before or after the date required by the Contract, the De partment will increase or decrease its payment to the Contractor, by the amount established by the Contract. The Department considers “unrestricted continuous traffic” to mean no lane closures will be granted for any of the Contractor’s operations necessar y to complete the project, and that traffic will follow the final lane configuration as required by the plans for the finished surface for the roadway with lane striping and permanent safety features completed. The Resident Engineer will determine when the project or section of the project is complete to open the roadway to unrestricted continuous traffic. Subsection 108.09, “Failure to Complete on Time, ” relating to Liquidated Damages will remain in effect and apply to the total Contract Time. Concurrent Liquidated Damages and disincentive assessments may occur. The Department will pay the Contractor the amount of incentive, in a progressive estimate, as funds are encumbered for such payment. Once the Contractor earns an incentive, the Resident Engineer will start a Change Order for presentation at the next available Commission meeting to request any additional funds necessary for payment of the incentive. The Resident Engineer will deduct the amount of disincentive fr om the next progressive estimate. Should the amount of disincentive or Liquidated Damages exceed the amount due for work performed in a specific pay period, reimburse the Department for the difference within 45 calendar days of notice that payment is due. Under an incentive/disincentive provision, the Engineer may grant time extensions for any of the following when such occurrences adversely affect work on the critical path of the CPM schedule: Significant change that results in quantity overruns in accorda nce with Subsection 104.04, “Significant Changes in the Character of Work” ; PROSECUTION AND PROGRESS 108.09 Addition of any new item of work, not offset by the underrun of a contract item, that qualifies as a major pay item as defined in Subsection 101.05.BC ; Significant error in the plans or change of scope that clearly delays work on the critical path of the project; Unknown subsurface utilities; Delays that are demonstrably outside the control of the Contract or caused by governmental agency or railroad company inactivity. Under an incentive/disincentive provision, the Resident Engineer will not grant time extensions for the following: Labor disputes or delays in material deliveries, unless it can be shown that such disputes or delays are industry wide; and Adverse weather conditions, with the exception of emergency declarations as recognized by the Department.
108.09 Failure To Complete On Time
For each calendar day the work remains incomplete after the Contrac t Time, the Resident Engineer will deduct from the amount due the Contractor in accordance with Table 108:1, “Schedule of Liquidated Damages.” Liquidated Damages are not to be considered as a penalty, but rather a recovery of costs incurred by the Departm ent due to the added cost of engineering, inspection, testing, and other extra expenditures of public funds made necessary by the Contractor’s failure to complete the work within the Contract Time. The Resident Engineer assesses Liquidated Damages as an a lternative to the more difficult and time consuming calculation of determining the actual Department costs. The Department does not waive its rights under the Contract by allowing the Contractor or Surety to continue and finish work after the Contract Time has elapsed. Table 108:1 Schedule of Liquidated Damages Contract amount, $ Daily assessment rate, $ ≤200,000 300 >200,000 – 1,000,000 600 >1,000,000 – 5,000,000 800 >5,000,000 – 10,000,000 1,200 >10,000,000 1,500 If the Resident Engineer determines the work is substantially complete and is in a condition for safe and convenient use by the traveling public, the Resident Engineer may end the assessment of all or any portion of the accrued Liquidated Damages, except for Fixed Completion Date Contracts.
108.10 Prosecution and Progress
108.10 Default of Contract
The Engineer may declare the Contract in default and advise the Contractor and the Surety of the actions required for remedy if the Contractor does any of the following: Does not start the work by the date required by the Contract; Does not perform the work with sufficient resources including qualified on -site supervision, skilled personnel, and equipment necessary to assure the timely completion of the work; Does not perform the work in accordance with the contracts; Neglects or refuses to remove and replace rejected materials or unacceptable work; Discontinues the prosecution of the work; Does not resume work within a reasonable time after written notice to do so, or Becomes insolvent, is declared bankrupt, or commits any act of bankruptcy or insolvency; Allows any final judgment to remain unsatisfied for 10 calendar days; Makes an assignment for the benefit of creditors; Does not comply with contracts regarding minimum wage payments or EEO requirements; or Is convicted of any felony involving fraud, moral turpitude, or offenses against the public contracting laws of the United States or any State of the United States. (For purposes of this subsection the Department will consider entry of a plea of guilty or nolo conten dere to be equivalent to a conviction.) The Engineer will provide written notice to the Contractor and Surety of such delay, neglect, or default. If the Contractor or Surety does not proceed in accordance with the notice within 10 calendar days of receipt , the Department has full power and authority, without violating the Contract, to take the prosecution of the Work from the Contractor. The Department may appropriate or use materials at the project site and enter into an agreement with another Contractor for the completion of the remaining Work. If the Contractor has obtained materials for use on the project and has not incorporated the materials into the Work, the Department may purchase acceptable materials from the Contractor at actual cost. The Depar tment will determine the methods used for completion of the Contract. The Department will deduct the following from monies due the Contractor for completed work: All costs and charges incurred by the Department as a result of the default, including the cos t of completing the Work under contract, and Any applicable Liquidated Damages or disincentives. If such costs exceed the sum that would have been payable under the Contract, the Contractor and Surety shall be liable and shall pay the Department the balanc e of such costs. If the Department determines, after termination of the Contractor’s right to proceed, that the Contractor was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenie nce of the Department in accordance with Subsection 108.11, “Termination of Contract for Convenience of the Department.” The damages to which a Contractor may be entitled as a result of the improper default termination will be limited to appropriate amounts for the items listed in Subsection 108.11, “Termination of Contract for Convenience of the Department.” PROSECUTION AND PROGRESS 108.11
108.11 Termination of Contr Act for Convenience of The Department
If the Engineer determines that a termination is in the Department’s interest, the Department may end the entire Contract or any portion of the Contract. The Engineer will provide a written notice of termination to the Contractor specifying the extent of termina tion and the effective date.
A.Submittals and Procedures After receipt of a notice of termination, immediately proceed with the following obligations: Stop work as specified in the notice; Place no further subcontracts or orders for materials, services, o r facilities, except as necessary to complete the continued portion of the Contract; end all subcontracts to the extent they relate to the work terminated; and Settle all outstanding liabilities and termination settlement proposals arising from the termina tion of the Contract. Transfer title and deliver to the Department the following items: Fabricated, partially fabricated, or un -fabricated parts; Work in progress; Completed work; Supplies; Other material produced or acquired for the work terminated; and Completed or partially completed plans, drawings, information, and other property that, if the Contract had been completed, would be required to be provided to the Department. The Contractor is responsible for the following tasks upon notice of termination : Complete performance of the work not terminated; Inventory acceptable materials that the Contractor has obtained for use on the project and has not incorporated into the work in conjunction with the Resident Engineer at a date chosen by the Resident Engi neer; and Take any action necessary, or that the Resident Engineer may direct, for the protection and preservation of the property related to the Contract that is in the possession of the Contractor and in which the Department has or may acquire an interes t.
B.Settlement Provisions If the Engineer orders termination of all or part of the Contract effective on a certain date, the Department will pay for completed items of work at the contract unit price as of that date. The Department will pay for contract items entirely eliminated by such termination in accordance with Subsection 109.05, “Payment for Cancelled Items.” The Department will pay for partially completed work either at agreed prices or in accordance with the following:
1.Additional Costs Within 60 calendar days of the effective termination date, submit a claim for additional damages or costs not covered in the Contract. Such claim may include the following cost items: Reasonable idle equipment time,
108.11 Prosecution and Pro Gress
Mobili zation efforts, Bidding and project investigative costs, Overhead expenses attributable to the project terminated, Subcontractor costs not otherwise paid, Actual idle labor cost if work is stopped before termination date, Guaranteed payments for private la nd usage as part of the Contract, and Other costs or damages documented by the Contractor. The Department will not consider anticipated profits as part of any settlement. The Contractor and the Department may agree upon the whole or any part of the amount due the Contractor because of the termination. The amount may include a reasonable allowance for profit on work completed. The agreed amount may not exceed the total contract price as reduced by the amount of payments previously made, and the contract pr ice of work not terminated. The Department will amend the Contract to include this agreed amount and will pay the Contractor the agreed amount.
2.Additional Cost Review If the Contractor and the Department fail to agree on the whole amount due the Contractor because of the termination of work, the Department will pay the amounts determined as follows, without duplicating any amounts agreed to in accordance with Subsection 108.11.B(1), “Additional Costs”: For Contract work performed before the effective date of termination, the total of the following: The cost of work performed; The cost of settling and paying termination settlement proposals under terminated subcontracts (not included in the cost of work performed) that are properly chargeable to the terminated portion of the Contract; and A sum, as profit, on the costs determined by the Department in accordance with Subsection 108.11.B(1), “Additional Costs,” to be fair and reasonable. The Department will not allow profit under Subsection 108.11.B, “Settlement Provisions,” if the Contractor’s costs incur red on work performed exceed the bid item payments made; The reasonable costs of settlement of the terminated work, including the following: Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and support data; The termination and settlement of subcontracts (excluding the amounts of such settlements); and Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the term ination inventory; The fair market value of termination inventory shall not include items or material that are destroyed, lost, stolen, or damaged to the extent as to be undeliverable to the Department or a buyer unless the Department expressly accepts the risk of such loss, theft, or damage; and MEASUREMENTS AND PAYMENT 109.01 The Department will calculate the amount due the Contractor under this clause and will deduct the following: All un -liquidated advance or other payments to the Contractor under the Contract; Any claim that the Dep artment has against the Contractor under the Contract; and The agreed price for, or the proceeds from the sale of, materials, supplies, or other items acquired and sold by the Contractor not recovered by or credited to the Department.
C.Partial Terminatio n If the termination is partial, the Contractor may submit a proposal to the Department for, and request review of, the unit prices on the continued portion of the Contract. The Department will review unit prices for the continued portion of the Contract and will revise such prices as necessary. Submit the proposal and request for a review of unit prices within 90 calendar days from the effective date of termination, unless extended in writing by the Resident Engineer. The Department may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated portion of the Contract, if these payments will not exceed the amount due the Contractor. Maintain all project records and make t hem available for audit to the extent necessary to verify amount and value of each item claimed. Project records include all books and other evidence bearing on the Contractor’s costs and expenses under the Contract. Make these records and documents available in accordance with Subsection 107.22, “Project Records.” Termination of the Contract or portion of the Contract shall not relieve the Contractor of contractual responsibilities for the work completed, nor shall i t relieve the Surety of its obligation for any just claim arising out of the work performed.
108.12 Lane Rental
If required by the Contract, pay a rental fee to the Department to restrict traffic flow on operable highway lanes. The purpose of this require ment is to encourage the Contractor to perform the work during non -peak traffic periods and to reduce traffic congestion during designated time periods. The Department will impose lane rental fees for all designated time periods for traffic lanes that are totally or partially impaired by Contractor operations. SECTION 109 MEASUREMENTS AND PAYMENT
109.01 Measurement of Quant Ities
A.General The Resident Engineer will measure all work completed under the Contract in accordance with the United States standard measure or the modernized metric International System of Units (SI).
Source: Oklahoma Standard Specifications for Highway Construction, 2019 Edition. Pages 94–112 of 935.