108.01 79 SECTION 108 – PROSECUTION AND PROGRESS
108.01 Subletting of Contract ................................ ................................ .... 79
108.02 Beginning of Construction ................................ ............................. 81
108.03 Prosecution of Construction ................................ ........................... 81
108.04 Character of Workers; Methods and Equipment ............................ 89
108.05 Temporary Suspension of Construction ................................ ......... 90
108.06 Determination of Time for Completion ................................ ......... 91
108.07 Determination of Contract Time Extensions and Excusable
Delays ................................ ................................ ............................ 91
108.08 Final Acceptance ................................ ................................ ............ 94
108.09 Failure to Complete the Work on Time ................................ ......... 94
108.10 Termination of the Contract ................................ ........................... 95
108.01 Subletting of Contract
Do not sublet, allow second tier sublet, sell, transfer, assign, or otherwise dispose of the Contract or any portion t hereof or a right, title, or interest in the Contract without the Engineer’s written consent. If the Engineer consents to subletting or second tier subletting a portion of the Contract, the Contractor shall self-perform work amounting to not less than 30% of the total original Contract cost. For items designated in the Contract as “specialty items,” the Contractor may sublet or second tier sublet this work and deduct the cost of such specialty items from the total original cost before computing the amount of the Work required to be self -performed by the Contractor with its own organization. As stated above, unless there is a Special Provision 108A in the proposal, the following items are designated as Specialty Items: Item 105-01 – Construction Stakes, Lin es and Grades Item 202-01.02 – Removal of Asbestos Item 209 – EPSC Item 411-12.** Shoulder Scoring Item 501-03.12 – Concrete Shoulder Rumble Strip Item 602-03 – Steel Structures Item 602-04 – Steel Structures Item 602-10.13 / .14 – Navigational Lighting Item 602-10.81 – Heat Straightening 108.01 80 Item 603-02 – Repainting Steel Structures Item 603-05 – Containment and Disposal of Waste Item 604-04.01 – Applied Texture Finish (New Structures), Item 604-04.02 – Applied Texture Finish (Existing Structures) Item 604-04.62 – Clean and Texture Finish Median Barrier Item 604-05.31 – Bridge Deck Grooving (Mechanical) Item 604.07 – Retaining Wall Item 604-42.01 – Underwater Divers Item 606-26.05 – Core Drilling for Piles (Abandoned) Item 617 – Bridge Deck Sealant Item 624 – Retaining Wall Items Item 625-01.08,10,11 – Inclinometer, Drilled Shaft Inspections Item 640 – Weigh Station Items Item 705 – Guardrail, Anchors, etc. Item 706 – Guardrail Items Item 707 – Fencing Items Item 712 – Traffic Control Items Item 713 – Signing Items Item 714 – Lighting Items Item 716 – Pavement Marking Items Item 720-03, 720-04, 720-05, 720-06, 720-07, 720-08, 720-09 – Railroad Highway Crossing Item 721-01.06 – Irrigation System Repair Item 721 -10, 721-11.20, 721 -11.30, 721 -12 – Landscape and Irrigation Item 725 – ITS items Item 730 – Traffic Signal Items Item 79* – Utility Items Item 750.01 – Mitigation Site Item 801 – Seeding Item 802 – Landscaping Items Item 803-01 – Sodding Item 805 – Erosion Control Item 806 – Project Mowing When portions of the Contract are to be sublet, the Contractor shall furnish all statements of proposed subcontracts on the proper form with the required number of copies. The Department must approve each proposed subcontract or tiered subcontract before t hat particular subcontract is put into effect. Upon request, the Department will furnish the proper prequalification forms to the Contractor. As a part of this proposal the Contractor agrees as follows: 108.02 81 1. No personnel will work on the Project under the terms of this Contract except legal employees and legal employees of official subcontractors.
2.Contractor books and records will be available for inspection by State or Federal auditors at any time to confirm the above requirement. The Contractor shall incorporate the provisions of the preceding two paragraphs into all subcontracts. Violation of these terms may subject the Contractor or subcontractors to suspension from eligibility to bid on construction projects, at the Commissioner’s discretion. Subletting or transferring the Contract will not release the Contractor from liability under the Contract and bonds.
108.02 Beginning of Construction
Do not begin the Work before receipt of the Work Order . The Work Order will stipulate the expected start date for construction and the date from which Contract time will be charged.
108.03 Prosecution of Construction
Plan and execute the Work in a manner to meet the required Contract time set forth in the Prop osal. Provide adequate manpower, equipment, and materials in accordance with the plan of operations and scheduling requirements described herein so that construction of the various items or groups of items can be carried out and completed within the Contr act time based on a completion date or dates, or calendar or working days. Once Work has begun on a given schedule or portion thereof, prosecute the Work fully and continuously according to the details and requirements of the Contract to its completion. The following Progress schedules will be required at a minimum:
A.Project Durations Less Than 90 Days Submit a plan of operation with sufficient detail to show the sequ ence and location of operations and the period of time required for completion of the porti on of the Work under each item or group of like items. Indicate in a plan of operations the manpower and equipment required to 108.03 82 handle the phases of the Work. The Engineer will use a straight -line plot to determine progress.
B.Project Durations 90 Days to 2 4 Months At the preconstruction meeting, submit a base line bar chart to the Engineer for review. Submit a hard copy and an electronic copy in the native file format in which the bar chart was generated. The baseline bar chart progress schedule shall include the following:
1.Activities that describe the essential features of the Work, activities that might delay Contract completion, and controlling activities;
2.The planned start and completion dates for each activity, the duration of each activity in workday s; and the calendar (number of workdays per week, holidays, number of shifts per day, and number of hours per shift) as described in the narrative. Durations should be no more than 20 workdays, unless approved by the Engineer;
3.The sequencing of all activi ties including predecessor(s) and successor(s). If scheduling software is used to create the bar chart schedule, submit related reports such as a predecessor and successor report, a sort by total float, and a sort by early start;
4.Dates related to the pro curement of materials, equipment, and articles of special manufacture; and dates related to the submission of working drawings, plans, and other data specified for review or approval by the Department;
5.Dates related to key Department inspections;
6.Dates related to specified activities by the Department and third parties; and
7.A schedule timeline broken down into weekly time periods with a vertical line to identify the first working day of each week. Include as part of the schedule a narrative listing :
1.The quantity and estimated daily production rate for controlling activities; 108.03 83 2. A calendar describing the number of work days per week, holidays, number of shifts per day, and number of hours per shift;
3.The planned number and types of crews;
4.Lists of Contractor’s expected equipment, Subcontractors, and each Subcontractor’s expected equipment; and
5.A number of anticipated adverse weather days for each month (for calendar day or completion date contracts). The Engineer and Contractor will review the draft baseline schedule at the preconstruction conference . The Engineer will accept the baseline schedule, provide review comments, or request additional information. As necessary, make appropriate adjustments or provide additional information. The Department may withhold payments or only make payments for the value of materials in accordance with 109.08 until the Engineer accepts the baseline schedule. The Engineer’s acceptance is based solely on whether the schedule meets the requirements of 108.03. Review comments made by the Engineer on the ba seline schedule will not relieve the Contractor from compliance with the Contract. The Contractor is responsible for scheduling, sequencing, and prosecuting the Work to comply with Contract requirements. The cost of preparing and updating the schedule i s incidental to all Contract items. Conduct periodic job site meetings with the Engineer monthly or as required by the complexity of the Project to assess progress. Submit an updated schedule on a monthly basis and submit within 10 calendar days following the progress estimate pay period cutoff date, to reflect actual progress and to document approved Contract Change Orders. Include the actual start and finish of each act ivity, percentage complete, the original duration and remaining duration of activitie s started and ongoing, and a summary of schedule changes necessitated by changes to the Project directed by the Engineer, as well as any resulting from changes in the Contractor’s planning or progress of the Work . Include with the monthly schedule update a cover letter that:
1.Identifies and explains any schedule revisions since the prior monthly update;
2.Includes a general description of the progress of the Work since the prior monthly update; and 108.03 84 3. Identifies any items of special interest. The Engineer rese rves the right to reject any such revisions. Submit the schedule updates to the Engineer for review within 48 hours after the job site meeting. If the Contractor fails to provide monthly schedule updates by the stipulated due date, the Engineer may withh old up to 10% of the monthly progress estimate payment until such time as an update has been provided and accepted in accordance with this provision.
C.Project Durations Greater Than 24 Months or When Required By Contract Develop a Critical Path Method (CPM) project execution schedule and subsequent updates as required or as specifically requested by the Engineer. Generate the CPM schedule using Primavera Project Management (P6) scheduling software.
1.CPM Schedule Submission Requirements. Include with all schedule submissions to the Engineer one hard copy and one electronic copy of the schedule. Provide the following items with each schedule submission:
a.Electronic schedule file in .xer format;
b.Gantt Chart in PDF format fit to 11x17 inch paper and showing the Activity ID, Activity Description, Original Duration, Remaining Duration, Total Float, and Calendar ID. The Gantt Charts to be included are:
i.The project Critical Path sorted by early start; ii. All uncompleted work activities as of the data date sorted by area and early start; iii. 60-day look-ahead sorted by early start;
c.Narrative report in PDF file format fit to 8.5x11 inch paper and including:
i.Detailed approach to sequencing the work, including assumptions and restrictions considered in development and updates of the schedule; 108.03 85 ii. Description of the Critical Path; iii. Description of the near -critical paths, defined as those activities not on the Critica l Path with total float less than 20 days of total float; iv. Identification of potential conflicts that may affect the schedule and how they might be mitigated;
v.Identification of submittal approvals necessary for the work to proceed as shown; vi. Description of t he calendars including identification of workdays per week, holidays, number of shifts per day, and number of hours per shift; vii. Description of how the schedule accommodates adverse weather days for each month; and viii. Description of execution plan, including number and type of crews, a list of subcontractors ’ crews, and expected equipment , but not limited to large equipment transport and delivery, transportation permits for oversized/overweight loads, and availability.
2.Initial Project Schedule. Within thirty (3 0) calendar days after the Contract Award, submit an Initial Project Schedule (IPS) to the Engineer for review and acceptance. A detailed plan shall be completed as described in Baseline CPM Schedule, for all work contemplated for the first one hundred an d twenty (120) calendar days after the Work Order is issued. The IPS shall begin with the date of Award and also include all other work thereafter in sufficient detail to identify the Critical Path and identify all contractual milestones. Submission of t he IPS shall be in accordance with the requirements of this subsection. The IPS will be reviewed at the Pre -Construction Conference. IPS schedule must be accepted prior to Contractor beginning Work.
3.Baseline CPM Schedule. Within ninety (90) calendar day s after the Effective Date, submit a draft baseline CPM schedule to the Engineer and hold a meeting to review. Define and sequence 108.03 86 activities to accurately describe the Project and to meet Contract requirements, the scope of work, phasing, accommodations for traffic, and interim, milestone, and project completion dates. Use working days to create the schedule, beginning with the date of Award. The baseline CPM shall include, in their entirety, the detailed activities representing the entire duration of t he Project. Ensure that the CPM schedule identifies and includes the following:
a.Planned start and completion dates for each activity;
b.Alphanumeric coding structure and activity identification system;
c.Duration of each activity (stated in work ing days, and with no activities of more than twenty (20) working days, unless approved by the Engineer;
d.Finish-to-start relationships among activities, without leads or lags, unless otherwise approved by the Engineer;
e.Interim, milestone, and project completion dates specified in the Contract as the only contractual constraints in the schedule logic;
f.The Critical Path identifying the controlling activities of the Work;
g.The project identification number shall remain the same for the entire duration of the Project;
h.Activities related to the procurement of materials, equipment, and articles of special manufacture;
i.Activities related to the submission of working drawings, plans, and other data specified for review or approval by the Engineer;
j.Activities related to Department inspections and approvals; and
k.Specified activities performed by the Department, subcontractors, suppliers, and third parties such as utilities and railroads. 108.03 87 Float is defined as the amount of time between the date when an activity can start (ea rly start) and the date when an activity must start (late start). Float is a shared commodity between the Contractor and the Department, and either party has full use of the float until it is depleted. Do not use float suppression techniques, such as preferential sequencing (arranging critical path through activities more susceptible to a Department -caused delay), special lead/lag logic restraints, zero total or free float constraints, extended activity times, manipulated calendars, or constraint dates ot her than as required by the Contract. The Engineer and Contractor will review the draft baseline CPM schedule at a meeting specific for the review of the schedule . The Engineer will accept the draft baseline CPM schedule, provide review comments, or reque st additional information. Make appropriate adjustments or provide additional information within 14 calendar days . The Department may withhold payments or only make payments for the value of materials in accordance with 109.08 until the Engineer accepts the baseline CPM schedule. The Engineer’s acceptance is based solely on whether the baseline schedule meets the requirements of 108.03. Review comments made by the Engineer on the initial schedule will not relieve the Contractor from compliance with the Contract. The Contractor is responsible for scheduling, sequencing, and prosecuting the Work to comply with the Contract requirements. The cost of preparing and updating the schedule is incidental to all Contract items.
4.Schedule Updates . Update the schedule on a monthly basis to show current progress. Include the following with each update:
a.Actual start and finish dates of each activi ty or remaining durations of activities started but not yet completed;
b.“Out of Sequence Progress” activities that have posted progress without predecessors being completed are not allowed without written approval of the Engineer;
c.Updated Critical Path ; and
d.Narrative report , as outlined in 108.03.C.1.c , and also including: 108.03 88 i. Sources of delay with a detailed history of the delay, corrective action, and schedule adjustments to correct the delay; ii. Work planned for the succeeding update period ; iii. Pending change ord ers; and iv. Changes made to the CPM schedule. Changes include additions, deletions, or revisions to activities due to the issuance of a change order, changes to an activity duration, changes to relationships between activities, or changes to the planned seq uence of Work or the method and manner of its performance including any schedule changes due to changes in the planning or progress of the Work. Submit the updated schedule electronically to the Engineer in accordance with the requirements of this subsecti on. The Engineer reserves the right to reject any schedule updates because of changes in relationships between activities on the critical path, inadequate or inaccurate narrative updates, or other deficiencies in the schedule updates as required in this s ubsection. If the Contractor fails to provide monthly schedule updates, or address the Engineer’s comments regarding the monthly schedule update, within 10 calendar days following the progress estimate pay period cut off date, the Engineer may withhold up to 10% of the monthly estimate payment, until such time as an acceptable update has been provided.
D.Schedule Revisions The Engineer will determine the progress of the Contract by either the time versus money straight line method or the schedule updates submitted by the Contractor. If actual construction falls behind the plan of operations or schedule by more than 15 % or 60 calendar days, whichever is less , offer for approval a revised schedule that reflects timely completion. Otherwise, the Engineer may r equest a revised schedule. Circumstances that may lead to such a request include the following:
1.A delay (actual or projected) to scheduled milestone or project completion dates 15% or more behind schedule; 108.04 89 2. A difference between the actual sequence or durat ion of work and that depicted in the schedule; and
3.The issuance of a Change Order that alters the planned sequence of work or the method and manner of its performance by adding, deleting, or revising activities. Prepare and submit the revised schedule with in ten (10) calendar days after the Engineer’s request. The Engineer may accept the revised schedule, reject the revised schedule, or request additional information. Address the reasons for rejection or submit the information requested no more than ten (10) calendar days after the Engineer’s request. If the Contractor cannot justify the unsatisfactory progress, the Department may remove the Contractor from the Department’s list of qualified bidders in accordance with 102.01. In addition to the Contractor, any affiliated or subsidiary companies, com panies in which the Contractor holds a significant interest, and companies in which officers or stockholders hold a significant interest may be removed from the Department’s list of qualified bidders. The Department will give appropriate written notice to the Contractor. The Department will not reinstate a Contractor disqualified from bidding until the Department considers the progress satisfactory or until the Contract(s) is completed and accepted, whichever occurs first. The above sanction will remain in effect until rescinded by the Department . Do not stop prosecution of the Work without the written consent of the Engineer. If the Work is stopped, give 24 hours’ notice to the Engineer before resuming operations. Unless provided for in the Contract, conduct night work only with the Engineer’s written permission.
108.04 Character of Workers ; Methods and Equipment
A.Workers Employ, at all times, satisfactory labor and equipment for prosecuting the required classes of work to full completion in the manner and time specified. The Engineer may direct the Contractor in writing to discharge any personnel employed by the Contracto r or by any subcontractor, who in the opinion of the Engineer, does not perform work in a proper and skillful manner, or who is disrespectful, 108.05 90 intemperate, disorderly, or otherwise objectionable. Such personnel shall not be employed again on the Work. Do not engage the services of any person or persons who are, or have been, during the period of the Contract, in the employment of the Department, except regularly retired employees, without the Engineer’s written approval. In addition, do not engage the ser vices of any firm or any principal officer or employee of a firm that participated in the development of the design of the Project to be constructed under the Contract.
B.Methods and Equipment Provide equipment of sufficient size and mechanical condition to produce a satisfactory quality of work and meet the time schedule in the plan of operations. During the course of construction, maintain all equipment in satisfactory operating condition. The Engineer may order the Contractor to remove from the Work equi pment that becomes less than satisfactory. Do not use equipment that will damage any portion of the Work, or other property, either public or private. When the methods and equipment for accomplishing the construction are not specified in the Contract, use any methods or equipment that will accomplish the work in conformance with the Contract requirements. When construction methods and equipment are specified, use such methods and equipment unless the Engineer authorizes alternative methods or equipment in accordance with 105.17. The Department will not change the basis of payment for the Contract items or time as a result of the substitution of methods or equipment.
108.05 Temporary Suspension of Construction
If it should become necessary to temporarily suspend construction for an undefined period, store all materials to not obstruct or impede the traveling public and to prevent damage to the materials. During the suspension, take every precaution t o prevent damage or deterioration of the Work; provide suitable drainage of the road by opening ditches, shoulder drains, and other similar measures; and erect temporary structures where necessary. 108.06 91 108.06 Determination of Time for Completion Complete the Work in accordance with 104.01 and 105.03 within the number of working days or calendar days, or by the completion date specified in the Contract.
A.Working Days For working day contracts, the Contract time consists of the number of working days specified to completion. The Engineer will assess working days and apprise the Contract or, monthly, of the number of accumulated working days charged against the Contract. File any protest in connection with working day charges within five (5) working days of receipt of the Engineer’s assessment. The Engineer will review such protest and t he supporting information and will render a decision either affirming or correcting, in writing, the accumulated number of working days previously reported.
B.Calendar Days or Completion Date For calendar day contracts, the Contract time consists of the number of calendar days stated in the Contract counting from the effective date of the Engineer’s order to commence with the Work, including all Sundays, holidays and non -work days to completion. For completion date contracts, complete th e Work on or before the fixed calendar date specified in the Contract. The Engineer will extend the Contract time for completion for the number of calendar days elapsing between the effective dates of any orders of the Engineer to suspend work and to res ume work for Engineer - ordered suspensions, or for excusable delays in accordance with 108.07.
108.07 Determination of Contract Time Extensions and Excusable
Delays
A.General The Engineer will extend the Contract ti me or completion date only if an excusable delay, in accordance with 108.07.B and 108.07.C, affects the critical path of the Work shown on the accepted progress schedule. Time extensions will be evaluated using the most recently submitted and accepted project schedule in accordance with 108.03. Notify the 108.07 92 Engineer in accordance with 104.03 and submit a written request for a time extension including a schedule update with an analysis showing the impact of the delay on the critical path and documentation to support this request. If the Engineer finds that the Work was delayed because of condi tions beyond the control and without the fault of the Contractor, and the request is justified, the Engineer will extend the time for completion by a properly executed Change Order in such amount, either calendar days or working days, as properly supported by the schedule analysis. The extended time for completion will be in full force and effect as though it were the original time for completion. If the Project does not require a schedule in accordance with 108.03, and satisfactory fulfillment of the Contract requires a change to the Work in accordance with 104.02, which may require a time extension, the Engineer will evaluate the Contractor’s request and determine whether the change has affected the completion of the Project. If the change resulted in an increase in quantities for a major item of work, as defined in 101.03, the Engineer may proportionally increase the Contract time allowed for performance of the major it em of work. If the Project contains an incentive provision for early completion and the Engineer has extended the Contract time or completion date, the incentive date for early completion will not be adjusted unless otherwise allowed in the Contract or approved by the Engineer.
B.Excusable , Non-Compensable Delays Excusable, non -compensable delays are delays caused by force majeure events that are not the fault of either the Contractor or the Department. The Department will not provide additional compensation for excusable, non-compensable delays. The following force majeure events may be causes for excusable non-compensable delays:
1.Natural Disasters – Floods, fires, tornadoes, earthquakes, infestations , epidemics, pandemics, or other natural disasters where a Declaration of Emergency has been declared for the affected area of the State;
2.Extreme or Adverse Weather – Unusually severe or adverse weather for an extended period of time that greatly exceeds w eather pattern history as determined by the Engineer ; 108.07 93 3. Major Acts of Violence – War, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest;
4.Utility Delays – Delays caused by utilities unless caused by the failure of the Department to follow the procedures set forth in TCA §54-5-801 et seq.
5.Government Actions – Actions by governmental agencies or courts, such as those described in 108.10.B, that stop or delay the Contractor’s performanc e of the Work if the Contractor was not at fault in creating the condition that led to the government agency or court action;
6.Shortage of Materials – Extraordinary delays in material deliveries that the Contractor cannot foresee resulting from freight emba rgoes, government acts, or area wide material shortages ; and
7.Labor Disputes – Delays from labor strikes , stoppages, or slowdowns that are beyond the Contractor’s, subcontractor’s, or supplier’s power to settle and not caused by improper acts or omissions o f the Contractor or subcontractors. If the Contractor incurs liquidated damages pursuant to 108.09 and if the Department extends the Contract time for an excusable, non - compensable delay, the Department will relieve the Contract or from associated liquidated damages under 108.09 commensurate with the time extension.
C.Excusable , Compensable Delays Excusable, compensable delays are delays affecting the critical path of Work that are determined to be the result of changes in the Work in accordance with 104.02. If the Contractor incurs liquidated damages pursuant to 108.09 and if the Department extends the Contract t ime for an excusable, compensable delay, the Department will relieve the Contractor from associated liquidated damages under 108.09 commensurate with the time extension. The Department will determine compensation for delay in a ccordance with 109.06. 108.08 94 D. Concurrent Delays Concurrent delays are separate critical delays that occur at the same time. When an excusable, non-compensable delay is concurrent with a n excusable, compensable delay, the Contractor is entitled to additional time but not entitled to additional compensation. When a non -excusable delay is concurrent with an excusable delay, the Contractor is not entitled to a time extension or additional compensation.
108.08 Final Acceptance
The Engineer will make final acceptance in accordance with 105.15 and the following:
A.State Funded Projects Upon presumptive completion of the Project an d due notice from the Contractor, the Engineer will make an inspection. If all items of work are satisfactorily completed, the Engineer will accept the Project and stop time charges as of the date of the inspection. However, if the inspection reveals tha t some items of work remain to be completed, the Engineer will direct the Contractor to complete these items and continue charging time until all Work has been satisfactorily completed, regardless of the number of inspections required prior to final accept ance.
B.Federal-Aid Projects The procedure for Federal -aid projects will be the same as noted above for wholly State funded projects except that time charges will be suspended during the time interval between presumptive acceptance by the Engineer and the da te of inspection by the FHWA. Should the FHWA find any work unsatisfactory during the inspection, the Engineer will resume time charges from the day after the inspection date until the work is corrected. In the event further inspections by FHWA are required, the procedure described herein will be repeated until final acceptance of the Project.
108.09 Failure to Complete the Work on Time
For each calendar day over and above the stipulated completion date on which any portion of the Work remains incomplete , the Department will deduct a sum of money from monies due the Contractor, not as a penalty but 108.10 95 as liquidated damages . The amounts to be deducted shall be as specified in Table 108.09 -1. Table 108.09 -1: Liquidated Damages for Failure to Complete the Work on Time Original Contract Amount ($) Daily Charge ($/day) 0 to 500,000 400.00 > 500,000 to 1,000,000 580.00 > 1,000,000 to 2,000,000 800.00 > 2,000,000 to 10,000,000 1,000.00 >10,000,000 to 20,000,000 1,600.00 >20,000,000 2,500.00 Allowing the Contractor to continue and finish the Work or any part of it after the completion date, or after the date to which the time for completion may have been extended, will in no way waive the rights of either party under the Contract.
108.10 Termination of the Contract
A.Default The Department reserves the right to terminate, by a written Contract Termination Notice, any Contract, of which these Specifications are a part, if the Contractor:
1.Fails to begin construction in accordance w ith the terms of the Work Order;
2.Fails to furnish sufficient labor or proper materials, or to use proper construction methods and equipment;
3.Performs the Work improperly and fails to remove and replace portions of the Work that are found to be unsatisfactory;
4.Discontinues prosecution of the Work w ithout the Engineer’s consent, or fails to resume operatio ns at any time ordered to do so; 108.10 96 5. Fails to maintain traffic in a safe and efficient manner, or to maintain completed p ortions of the Work effectively;
6.Fails to maintain a rate at which construction p rogress, in the Engineer’s opinion, is sufficient to ensure completion of the Work within the specified time;
7.Fails, in any degree, to maintain the same financial responsibility on the basis of which the Department pre -qualified the Contractor for submitting a proposal for th e Work and awarded the Contract; or
8.Fails or refuses to follow the proper orders of the Engineer. Under any such circumstance, the Engineer will serve written notice on the Contractor and its Surety of intent to terminate the Contract f or reasons that will be set forth therein. If within fifteen (15) days of delivery of such notice, the Contractor and its Surety, or the Surety has not taken sufficient steps to satisfy the Engineer of the correction of the circumstance at fault, the Depa rtment may, in its absolute discretion, order the Contract terminated. The Department may then appropriate or use any or all materials and equipment on the ground as may be suitable and acceptable and may enter into an agreement for the completion of the Contract according to the terms and provisions thereof, or use such other methods as in the opinion of the Engineer will be required for the completion of the Contract in an acceptable manner. The Department will deduct from any monies due or which may be come due the Contractor, all costs and charges incurred by the Department, together with the cost of completing the Work under Contract. If such costs exceed the sum that would have been payable under the Contract, then the Contractor and the Surety shall be liable and shall pay to the Department the amount of such excess. The Department will not relieve the Contractor and the Contractor’s Surety of the liability for liquidated damages assessed in accordance with
108.09 because of the default.
If it is determined that the Department’s default of the Contractor is improper, the default will revert to a termination for convenience, and the Department will compensate the Contractor in accordance with
109.05 B.
108.10 97 B. Without Fault The Department may, by a written Contract Termination Notice, with the approval of the FHWA where applicable, terminate any contract or a portion thereof after determining that for reasons beyond the control of the Contractor, the work contracted for cannot be completed. Such reasons for termination may include, but need not necessarily be limited to, one of the following:
1.An Executive Order of the President of the United States with respect to the p rosecution of war or in the interest of national defense.
2.The Engineer and Contractor each make a determination that, due to a shortage of critical materials required to complete the Work caused by allocation of these materials to work of a higher priority by the Federal Government or any agency thereof, it will be impossible to obtain these materials within a practical time limit and that it would be in the public interest to discontinue construction.
3.An injunction is imposed by a court of competen t jurisdiction that stops the Contractor from proceeding with the Work and causes a delay of such duration that it is in the public interest to terminate the Contract and the Contractor was not at fault in creating the condition that led to the court’s inj unction. The Engineer’s decision as to what is in the public interest and as to the Contractor’s fault, for the purpose of termination, shall be final. Restraining orders or injunctions obtained by a third party citizen action resulting from Federal or S tate environmental protection laws, or where acts or omissions or persons or agencies whether or not the Contractor primarily caused the issuance of such order or injunction, shall also be cause for termination.
C.Convenience The Department may, by a written Contract Termination Notice, with the approval of the FHWA where applicable, terminate any contract, or any portion thereof for the Department’s convenience, when the Engineer determines that a termination is in the best in terest of the Department. The Department may terminate the Contract for convenience at any time after the Department has made a determination to award a contract. Reasons for termination may include, but are not limited to: 108.10 98 1. Insufficient funds by the Depar tment due to extenuating circumstances;
2.Occurrence of an environmental situation of a significant nature that would require extensive and time -consuming delays in the work for the purposes of identification, evaluation, and possibly mitigation;
3.Occurrence of a previously undiscovered error in the bid documents; and
4.Any other circumstances the Department determines to be in the best interest of the Department or the public. In addition to the general reservation of the right to terminate for convenience unde r this Subsection, the bidding documents may provide for a termination of the Contract for convenience under this Subsection upon the occurrence or non -occurrence of a specified event after bid opening. Under any of the above circumstances for termination, the Engineer will deliver to the Contractor and the Surety a written Contract Termination Notice for reasons that will be set forth therein. The Notice shall specify the extent to which performance of work is terminated under the Contract and the effecti ve date of termination. Unless otherwise directed by the Engineer, upon receipt of a Contract Termination Notice, the Contractor, or its Surety, shall immediately:
1.Stop work as directed in the Notice;
2.Place no further orders or subcontracts for materials, services, or facilities except as approved by the Engineer to compl ete work not terminated;
3.Terminate all orders and subcontracts for the terminated work ;
4.Deliver to the Engineer completed or partially completed plans, drawings, information, and other property required to be furnished under the Contract;
5.Take actions that the Engineer directs to protect and preserve Contract-related property that is in the possession of the Contractor in which the Department has or may acquire an interest; 108.10 99 6. Provide all other information included in this section and as requested b y the Engineer; and
7.Complete all work not terminated. If the Department terminates the Contract or any portion thereof before completion of all items of work in the Contract, the Department will make payment for the actual number of units of items of work completed at the Contract unit prices and as mutually agreed for items or work partially completed in accordance with 109.05. The Department will not pay claims for loss of overhead or anticipated profits, including anticipated earnings on usage of owned equipment, and impact, delay, or other direct or indirect costs resulting from this termination as part of any settlement. The Department will pay for items tha t are eliminated in their entirety by the termination in accordance with 109.05. The Department may purchase acceptable materials, obtained by the Contractor for the Work, that have been inspected, tested, and accepted by the En gineer, and that are not incorporated in the Work. Submit the proof of actual cost, as shown by receipted bills and actual cost records. The Engineer, as shown by actual cost records, may designate all actual costs for delivery at such points of delivery to be added to this cost. If the Engineer and the Contractor do not agree to purchase such materials, the Department may reimburse the Contractor for any reasonable restocking fees and handling costs incurred by the Contractor in returning unused materia ls to the vendor. If only portions of the Work are eliminated, the Department may stop delivery and payment for unnecessary materials. Termination of a Contract or a portion thereof shall not relieve the Contractor of its responsibility for the completed work or work not included in the Notice of Termination, nor shall it relieve the Surety of its obligation for and concerning any just claims arising out of the work performed or remaining to be performed. 109.01 100 SECTION 109 – MEASUREMENT AND PAYMENT
109.01 Measurement of Quantities ................................ .......................... 100
109.02 Scope of Payment ................................ ................................ ......... 105
109.03 Compensation for Altered Quantities ................................ ........... 106
109.04 Methods of Payment for Additional or Altered Work .................. 106
109.05 Payment for Eliminated, Al tered, or Terminated Work ............... 114
109.06 Compensable Delay Costs ................................ ............................ 115
109.07 Non-Recoverable Costs ................................ ................................ 118
109.08 Partial Paymen t ................................ ................................ ............ 119
109.09 Payment for Stockpiled Materials ................................ ................ 119
109.10 Final Payment ................................ ................................ .............. 121
109.11 Payment of Costs Owed to the Department ................................ . 122
109.01 Measurement of Quantities
The Engineer will measure all work completed under the Contract according to United States standard measure, using measurement methods and computations conforming to sound engineering practice. The Engineer will measure actual quantities of work completed as described in the subsections entitled “Method of Measurement” for specific items of work. The Department will make payment based on these actual measured quantities. Accept estimated quanti ties designated in the Contract to be used as final payment quantities for the final payment, unless revised by approved Change Order. If there is a disagreement between the Contractor and the Department concerning the measured quantity of any pay item, th e Department will re - measure the item provided the Contractor enters into a Change Order to bear the expense of the re -measurement should it show no substantial change in the pay item quantity. The definition of “substantial change” will be stated in the Change Order and will depend on the item being checked and the nature of the specific Project. The Engineer will measure completed work as follows:
Source: Tennessee Standard Specifications for Road and Bridge Construction, 2021 Edition. Pages 88–108 of 1,072.