111DELAY CLAIMS

111.01COMPENSABLE DELAYS—The Department is responsible for delay damages arising only from

delays created by its negligent acts or omissions and from Utility Infrastructure and Utility Adjustment delays as specified in Section 105.06 . Unless otherwise specified, assume the risk of damages from all other causes of delay.

111.02GENERAL CONDITIONS CONCERNING DELAY CLAIMS—Because of the nature and extent of

damages arising out of work that has been delayed; of the need for the Department to be made aware of potential delay claims promptly after the cause or causes of delay have arisen so that record -keeping can begin; and of the parties' intent to have all such claims as fully documented as possible, strict adherence to the provisions of this section is an essential condition precedent to filing a delay claim with the Board of Claims. The following items of damage cannot be included in any delay claim against the Department:

• Profit,

• loss of profit,

• labor inefficiencies,

• home office overhead, including but not limited to costs of any kind for home office personnel, and

• consequential damages, including but not limited to loss of bonding capacity, loss of bidding opportunities, and insolvency.

111.03NOTIFICATION OF DELAY CLAIM—Notwithstanding the provisions specified in Section 105.01,

within 10 calendar days of any negligent act or omission of the Department or of any Utility Infrastructure or Utility Adjustment delay as specified in Section 105.06, notify the Inspector -in-Charge that operations have been or will be delayed and that a claim for delay damages either is going to or might be filed with the Board of Claims. Confirm such notification in writing to the District Executive within 10 calendar days of such notification to the Inspector-in-Charge.

111.04PROCEDURES—Upon notifying the Inspector -in-Charge as provided above, keep records, on a

daily basis, of all labor, material, equipment, and site overhead expenses for all operations that are affected by the delay. Identify in such daily records each operation and the station or stations thereof affected by the delay. The Department’s forces will also keep daily records of all labor, equipment, material, and site overhead expenses for all operations affected by the delay. On each Monday, compare the previous week's daily records with those kept by th e Department and review for accuracy. Report to the District Executive, within 10 calendar days of each such review, all disagreements with such records. Refusal or failure to meet to review the Department's records or to report disagreements with such records will create an irrebuttable presumption in favor of the Department that its records are accurate. Make no claim for delay costs of any kind allegedly incurred, before notifying the Inspector-in-Charge that operations have been delayed. On a weekly basis, prepare and submit to the Inspector-in-Charge written reports containing the following information:

Adjustment as specified in Section 105.06 delayed each operation, and an estimation of how much time is required to complete the project.

• An explanation as to how those extra costs, including site overhead costs, relate to the delay and how they are being calculated and measured;

• An identification of all project employees for whom costs are being compiled; and

• An identification of the manufacturer's numbers for all items of equipment for which costs are being compiled.

Upon completion of the project, submit to the Inspector-in-Charge and the District Executive copies of a report containing the following information:

• An itemization and explanation of the measurement and basis of all extra costs being sought, including all reports certified by an accountant;

• A description of the operations that were delayed, including all reports by scheduling experts or other consultants, if any;

• All actions taken by the Contractor to minimize the delay and to minimize the delay costs incurred;

• An as-built chart, CPM scheme, or other diagram, depicting in graphic form how the operations were adversely affected; and,

• For delays related to Utility Infrastructure and Utility Adjustments, an explanation of why the delay was unforeseen based on the contract documents and a careful pre-bid examination of the project site, or of any waste or borrow sites designated in the proposal.

The District Executive will review the submission and any reports prepared by the Inspector -in-Charge. If, in the opinion of the District Executive, the Department is not liable for any delay, a written decision will be issued. Comply with the provisions of Section 105.01 if the District Executive's decision is disputed. If the District Executive determines that the Department delayed operations, a review of the damages claimed will be made and a written decision will be issued. Comply with the provisions of Section 105.01 if the District Executive's decision is disputed. For operation delayed by a Utility Infrastructure or Utility Adjustment as specified in Section 105.06, concurrence of the district Executive’s decision by the Director of Project Delivery is also required. Only expenses for extra labor, material, equipment, and site overhead will be considered by the Department. Ten percent will be added to these costs to cover allocable home office overhead. Likewise, in the event a delay claim is filed with the Board of Claims, only the foregoing expenses may be claimed. When computing additional equipment expenses, do not use, in any way, the Rental Rate Blue Book for Construction Equipment or any other rental rate book. For equipment that is owned, u se actual records kept in the usual course of business, and compute increased ownership expenses pursuant to Generally Accepted Accounting Principles (GAAP). For equipment that is rented or leased, use the rental agreement or actual invoices to compute increased rental expenses. Equipment that is rented or leased from an entity that is a division, affiliate, or subsidiary of, or that is in any other way related to, the Contractor or its parent company, will be considered owned equipment.