1-37 Section 105 – Control of The Work
105.01 ROLE OF THE ENGINEER .
a.General . The Engineer will decide all questions which arise concerning the quality and acceptability of materials furnished, the manner of performance of the work, the rate of progress of the work, and compliance with the requirements of the Contract. The Engineer will decide all questions concerning interpretation of the Contract.
b.Quant ities, Orders, Disputes, Rejection of Materials or Work, Suspension of Work . The Engineer will determine the amount and quantity of the work performed and materials furnished that are to be paid for under the Contract. The Engineer will have the authority to enforce and make effective decisions and orders the Contractor fails to carry out promptly. In case of any dispute arising between the Contractor and the Engineer as to materials furnished or the manner of performing the work, the Engineer has the autho rity to reject the materials or to suspend the work until the dispute is decided by the Chief Engineer. The Engineer is not authorized to revoke, alter, enlarge, relax, or release any requirements of the Contract. The Engineer has the authority to suspend the work or withhold payment of all estimates due to the Contractor when necessary to secure proper compliance with the Contract.
c.Performance of Work by the Engineer ; Setoff . If the Contractor fails to perform work ordered by the Engineer, the Engineer may, upon written notice, proceed to perform the work as deemed necessary. The cost of performing the work will be deducted from any monies due or which may become due the Contractor under the Contract.
d.Advice by the Engineer . Advice given to the Cont ractor by the Engineer shall not be construed as binding the Agency in any way or releasing the Contractor from any obligations under the Contract. 105.02 AUTHORITY AND DUTIES OF THE ENGINEER . As the direct representative of the Chief Engineer, the Engineer on a project has immediate charge of the engineering details of the project and is responsible for the administration and satisfactory completion of the projects. The Engineer has the authority to reject defective material, to suspend any work that is being improperly performed, and to withhold payment until defective work has been corrected. The Engineer also has the authority to suspend work, or specific aspects of the work, if necessary to address a concern for safety of the workers or traveling public, or a serious environmental concern or violation. Notwithstanding any other provision of law, case law, regulation, or the Contract, no additional compensation shall be provided for any work suspensions of this sort.
1-38 105.03 AUTHORITY AND DUTIES OF INSPECTORS . Inspectors employed by the Agency are
authorized to inspect all work done and materials furnished and to perform other duties as directed by the Engineer. Inspections can extend to all or any part of the work and to the preparation, fabrication, or manufacture of the materials u sed. An inspector is not authorized to alter or waive the provisions of the Contract, to issue instructions contrary to the Contract, or to act for the Contractor. 105.04 CHIEF ENGINEER TO BE REFEREE .
a.General . The Chief Engineer will act as referee in all questi ons of dispute arising under the terms of the Contract. If the Contractor is aggrieved by the decision of the Chief Engineer, the Contractor may appeal the decision in writing to the Transportation Board via the Chief Engineer. Included with the notice of appeal shall be a complete outline of the nature and extent of the question or questions appealed together with any supporting documentation.
b.Limitation of Time to Appeal . Notwithstanding any other provision of law, case law, regulation, or the Contrac t, all appeals shall be made within 30 calendar day s of the decision to which the Contractor is aggrieved, and not thereafter. 105.0 5 COMPONENTS OF THE CONTRACT . A complete description of the work requires both the Contract, which is furnished to the Contractor by the Agency, and the working drawings, which are submitted to the Agency by the Contractor or the Contractor’s suppliers. The Agency will make available the Contract in a digital format and t he Contractor shall keep the Contract available on t he project at all times. 105.06 PLANS AND WORKING DRAWINGS .
a.General . Certain items and work activities require Plans, drawings, procedures, and other information to document the Contractor’s proposed actions to conform with Contract requirements. Drawings and procedures shall be submitted sufficiently in advance of the anticipated work to allow for reviews, comments, corrections, and if necessary, resubmittal. In the event that any condition requires a change to any previously approv ed or conforming working drawing s, the Contractor is required to submit updated draw ings prior to performing the work . Design calculations shall be included with the submittal of the working drawings for structural elements that have not been designed and detailed in the Contract, including temporary and permanent work. When a Contract item requires additional calculations to be submitted, the calculations shall be included with the submittal of the working drawing s. Manufacturer’s engineering data for pref abricated material s, including that for falsework and forms, shall be submitted with each set of working drawing s.
1-39 All submittals shall be transmitted electronically to the Agency unless prior approval has been
granted by the Engineer. Submittals shall be flattened prior to transmitting so that information added to the submittal becomes an integral part of the document rather than separate information on top of the document. The do cument shall have a clean appearance so that any comments or stamps placed as part of the submission cannot be mistaken as review comments. Resubmittals shall be free from previous review comments and have a clean appearance so that any comments or stamps placed cannot be mistaken as a review comment. All resubmittals shall include a separate summary of review comments and responses, including an explanation of how each review comment was addressed in the resubmittal. Drawing and detail sheets shall be pro vided as an ISO standard Portable Document Format (PDF) file. The PDF document properties shall be set up with an appropriate page size and engineering or architectural scale. The page size and scale shall be of sufficient size to permit to -scale plotting of the document(s) on paper for review, use in construction , and shall include the following:
1.Project name and number
2.Route number and location information
3.Contractor ’s name and address
4.Fabricator or supplier’s name and address
5.Sheet title or identification of details shown
6.The name of the detailer and the checker
7.Date and version of the drawings
8.Sheet number ______ of ______
b.Required Submittals . Working drawings submitted to detail work that has been designed and detailed in the Plans shall be submitted to the Agency for approv al. Fabrication draw ings are a type of working drawing that are submitted for approv al. Working drawings submitted to detail work that has not been designed in the Plans shall be designed and detailed by a professional engineer and submitted to the Agency to be reviewed for conformance with the Contract. These working drawing s shall ensure that the Contractor or Contractor’s suppliers have correctly interpreted the intent of the Contract. Construction drawings and design drawing s are types of working drawing s that are submitted to be reviewed for conformance.
1-40 Exceptions to this guidance will be detailed by the specification for the individual pay item .
No work shall begin on any item associated with a working drawing until all of the associated drawings have been approved, approved as noted, marked as conform ing, or conforming with comments by the Agency. The Contractor or fabricator shall assume all risk for material s ordered or work performed prior to written notification by the Agency.
1.Submittals for Approval . Approval of drawings and/or procedures does not relieve the Contractor or fabricator of compliance with all specification s and code requirements. The Agency assumes no responsibility for errors and/or omissions in the drawings and procedures. Drawings and procedures identified as being approved as noted indicate that specific clarification or conditional changes have been identified and take precedence over submitted information. Withholding of approval by the reviewer for selected details or procedures shall not constitute a basis for delay of performance of a non -related item of work that has approval to proceed. After approval of the drawin gs and/or procedures, no changes shall be made without the written approval of the Agency.
2.Submittals to be Reviewed for Conformance . When the submittal is reviewed for conformance , the Agency will review the submittal for compliance with the requirem ents of the Contract. The Contractor shall submit the required drawings and/or procedures in advance of the proposed work . The Contractor is entirely responsible for the work associated with these submittals. The Agency will not be responsible for errors i n dimensions, incorrect erection procedures, or design requirements. If the drawings and/or procedures have misinterpreted the Plans or specification s, the submittal will be returned as non-conforming. The submittal shall not be marked as conforming or conforming with comments until all of the required information has been received and reviewed. After the drawings have been marked conforming or conforming with comments, no changes shall be made without the written approval of the Agency. The Contractor or fabricator shall assume all risk for material s ordered or work performed prior to the changes being marked as conforming by the Agency.
1-41 (c) Categories of Working Drawings .
1.Fabrication Drawings .
a.General . Fabrication drawings are required for work performed by or in conjunction with material s furnished by a fabricator or supplier. They shall consist of complete details developed from information in the Contract, and field measurements to define dimensions, sizes, procedures, and material s necessary to complete fabrication and installation or erection of the work specified. Once a complete submittal has been received for approval, the reviewer shall be allowed 28 calendar day s for the initial review period and a 14 calendar day review period for each subsequent resubmittal unless stated otherwise in the specification requirements. The Contractor is entirely responsible for the work associated with these submittals. The Agency will not be responsible for errors in dimensions, incorrect erection procedures, design requirements, or successful completion of the work .
b.Ownership; Delivery; Procedures . Fabrication drawings shall be the property of the Agency. Prior to processing the final estimate , the Engineer shall verify that all as- builts have been received by the Agency.
2.Construction Drawings . For an item or element of work that permits the Contractor optional details, procedures, and material s, the Contractor shall prepare and submit to be reviewed for conformance detailed drawings , calculations, and procedures of how the Contractor proposes to perform and control the work . Construction drawings , calculations, and procedures shall be stamped and signed by a professional engineer . The professional engineer is responsible for the design, performance of the designed element, and preparation of the construction drawing s calculations, and procedures. Once a complete submittal has been received, the reviewer shall be allowed 21 calendar days for the initial review period and 14 calendar day s for review of a submittal returned as non-conforming unless stated otherwise in the specification requirements. T he Contractor is entirely responsible for the work associated with these submittals. The Agency will not be responsible for errors in dimensions, incorrect erection procedures, design requirements, or successful completion of the work .
3.Design Drawings . For an item or element of work to be permanently incorporated in the project which has not been designed and detailed in the Plans, the Contractor shall prepare and submit to be reviewed for conformance detailed design calculations, procedures, and drawin gs for the item or element of work . Design drawings , calculations, and procedures shall be stamped and signed by a professional engineer .
1-42 105.07 Conformity With Plans and Allowable Deviations .
a.General . The work shall be performed in reasonably close conformity with the lines, grades, cross - sections, dimensions, and material requirements, including tolerances, shown in the Contract. Any deviation from the Contract required will be determined by the Engineer and authorized in writing.
b.Acceptance of Non -Conforming Materials or Work; Price Adjustment . If the material s or the finished product in which the material s are used do not conform to the Contract requirements, but reasonably acceptable work has been produced, the Engineer will determine if the work will be accepted and remain in place. If accepted, the Engineer will do cument the basis of acceptance, which may require a Contract modification and price adjustment.
c.Rejection of Non -Conforming Materials or Work; Treatment of Rejected Materials or Work . If the material s or the finished product in which the material s are used do not conform to the Contract requirements, and the Engineer determines that the product is unsatisfactory, the Engineer will direct the work or material s be removed, replaced , or otherwise corrected by the Contractor at the Contractor’s expense. 105.08 COOPERATION BY THE CONTRACTOR . The Contractor shall:
a.Provide Bid Documents . Promptly provide copies of all bid documents upon request by the Engineer, including but not limited to all information used to prepare the bid proposal. Failure to provide such documents may result in the waiver of any right to bring a claim for additional compen sation under Subsection 105.20.
b.Have a Competent Superintendent . Have on the project at all times a competent and reliable English -speaking superin tendent authorized to receive orders and to act for the Contractor. The Contractor shall make every effort to provide continuity in the position of superin tendent. However, the Agency reserves the right to refuse or terminate the assignment of any superin tendent on the project ; this shall not be grounds for a claim under Subsection 105.20.
c.Have a Competent Safety Officer . Have available on the project at all times during the prosecution of the work a competent and reliable English -speaking employee designated as the safety officer. This person shall be authorized to re ceive orders and issue binding directions concerning safety to all persons associated with the project who are employed by the Contractor, subcontractor s, or material suppliers. This individual shall be well versed in all applicable OSHA regulations, shall be capable of implementing a plan to conform to these regulations, and shall have the authority to stop operations on the project . The safety officer shall maintain a complete copy of the safety plan(s) for the Contract , which shall be available at all times during the prosecution of the work for inspection and/or copying by the Engineer.
1-43 (d) Provide Emergency Contacts . Furnish to the Engineer a list of addresses and telephone numbers
of the Contractor’s personnel who can be reached in an emergency. The Contractor shall alert certain personnel to stand by and shall inform the Engineer of all arrangements therefore.
e.Provide Facilities; Information; Assistance; Samples; Control Points . Provide all reasonable facilities and furnish the in formation, assistance, and samples required by the Engineer or inspector to properly inspect and test material s and quality of work ; and cooperate in setting and preserving stakes, benchmarks, and other control points used in laying out the work . 105.09 COOPERATION WITH UTILITIES .
a.General . The Agency will notify all utilit y companies, pipeline owners, and other known parties affected and endeavor to have all necessary adjustments of the public or private utilit y fixtures, pipelines, and other appurtenances within or adjacent to the limits of construction made as soon as practical.
b.Moving Utility Property; Owner’s Expense . Water lines, gas lines, wire lines, service connections, water and gas meter boxes, wate r and gas valve boxes, light poles, cableways, signals, and all other utilit y appurtenances within the limits of the proposed construction which are to be relocated or adjusted are to be moved by the owners at their expense, unless otherwise provided in th e Contract.
c.Utility Interference; No Claim for Delays . The Contractor acknowledges and understands that, at the time of bid submission, it has considered all of the permanent and temporary utilit y facilities or appurtenances in their present and/or rel ocated positions as shown on the Plans and evident at the site. Notwithstanding any other provision of law, case law, regulation, or the Contract, no additional compensation will be allowed for any delays, inconvenience or damage sustained by the Contracto r due to any interference from utilit ies, utilit y companies, utilit y facilities, appurtenances, or the operation of moving them.
d.Utility Relocation for Contractor’s Convenience . Should the Contractor desire temporary changes of location of any utilit y facilities or appurtenances for convenience in performing the work , the Contractor shall satisfy the Agency that the proposed relocation does not interfere with its own or other Cont ractors’ operations or the requirements of the work and does not cause an obstruction or a hazard to the traveling public . The Contractor shall be responsible for requesting such relocation work of a utilit y and/or other affected parties. Such relocation work shall be done solely at the Contractor’s expense. 105.10 COOPERATION BETWEEN CONTRACTORS .
a.Agency Right to Contract . The Agency reserves the right to contract for and perform other or additional work on or near the work covered by the Contract at any time.
1-44 (b) No Interference with Other Contractors . When separate Contract s are let within the limits of a
project , each Contractor shall conduct its own work so as not to interfere with or hinder the progress or completion of the work being performed by other Contractors. Contractors working on the same project shall cooperate with each other as specified or ordered by the Engineer.
c.Liability, Indemnification, Defense . Each Contractor involved shall assume all liability, financial or otherwise, in connection with its own Contract and shall defend, inde mnify, protect , and save harmless the Agency from any and all damages or claim s that may arise because of inconvenience, delay, or loss experienced by the Contractor because of the presence and operations of other Contractors working within the limits of the same project . 105.11 CONSTRUCTION STAKES .
a.Initial Layout . Unless other methods of placing stakes are provided in the Contract, the Engineer will be responsible for setting sufficient points to establish the initial alignment and elevation of the proposed work . The Contractor shall check the proposed grades; any mistakes or errors identified shall immediately be brought to the attention of the Engineer, and adjustments will be made by the Engineer.
b.Permanent Marking Layout . Once the wearing course has been placed, the Engineer will establish the layout for the permanent centerline traffic markings, including passing zones, breaks for town highway s and side roads, and any other items required for the centerline markings. The Contractor shall be responsible for the layout of all non -centerline markings.
c.Responsibility for Layout . The Contractor shall be responsible for the preservation of all stakes and markings and shall replace any stakes or grades that are destroyed or disturbed. No claim shall be brought and no additional compensation will be paid on account of any alleged inaccuracies in the construction layout, including any additional layout that the Engineer may perform that is not covered in this subsection , unless the Contractor notifies the Engineer of the inaccuracies in writing at least 24 hours prior to commencement of the work .
d.Qualified Personnel . All other stakes, templates, and other material s, either in addition to or in replacement of th e original set, which may be required for the construction operation s, shall be furnished, set, and properly referenced by qualified personnel employed by the Contractor.
e.Contractor Layout . The Contractor shall stake out the work and make known the imm ediate plan or procedure of the next work contemplated . The Contractor shall inform the Engineer sufficiently in advance of construction to permit the Engineer to take the necessary measurements for the computation of quantities and to check the Contractor ’s layout. The Contractor shall lay out in a timely manner and maintain a sufficient number of grade stakes so the Engineer can monitor and regulate all portions of the Contract work .
f.Cost. The cost of this work shall be considered as incidental to th e Contract as a whole and shall be included in the unit price bid for the Contract items involved.
1-45 105.12 Inspection of Work .
a.General; Contractor to Help Engineer . The Engineer or their designated representative shall be allowed access to all parts of the work at all times and shall be furnished by the Contractor all information and assistance necessary to make a complete and detailed inspection. The Contractor shall furnish such help as the Engineer desires and/or needs to ascertain whether or not the work is performed in accordance with the requirements and the intent of the Contract.
b.Examination o f Completed Work . If, before the acceptance of the work , the Engineer requests, the Contractor shall remove or uncover portion s of the finished work as the Engineer may direct. After the examination, the Contractor shall restore the portion of the work to the standard required by the Contract. If the work thus exposed or examined proves acceptable, the expenses of uncovering or removing and replacing the parts removed shall be paid for as extra work as defined in Subsection 109.06 ; but if the work exposed o r examined is unacceptable, the expenses of uncovering or removing and replacing the parts removed shall be borne by the Contractor.
c.All Work Requires Supervision or Inspection . The Agency will not be required to pay for any work done or material s used without supervision or inspection by the Engineer or an inspector . Supervision/inspection includes project , mill, plant, or shop inspection of any work furnished under the Contract.
d.Inspection by Others . When any unit of government or of a public or p rivate entity is to pay a portion of the cost of the work covered by the Contract, its respective representatives shall have the right to inspect the work . Such inspection shall not make any entity a party to this Contract and shall not interfere with the rights of either party hereunder. 105.13 REMOVAL OF UNACCEPTABLE AND UNAUTHORIZED WORK .
a.General . All work which does not conform to the requirements of the Contract will be considered unacceptable unless otherwise determined to be acceptable under the provisions of Subsection 105.0 7.
b.Removal and Replacement of Unacceptable Work . Unacceptable work , whether the result of poor quality of work , use of defective material s, damage through carelessness , or any other cause found to exist prior to the a cceptance of the work , shall be removed immediately and replaced in an acceptable manner.
1-46 (c) All Work Must Be Authorized . Work shall be performed only with lines and grades having been
provided by the Engineer. Work performed contrary to the instructions of the Engineer, beyond the lines shown on the Plans, or without authority will be considered unauthorized and no payment therefore will be made. Work so done may be ordered removed or replaced at the Contractor’s expense.
d.Failure to Compl y with Order of Engineer . Upon failure by the Contractor to comply forthwith with any order of the Engineer communicated under the provisions of this subsection , the Engineer will have authority to require unacceptable work to be remedied or removed and replaced and to require unauthorized work to be removed. In either case, the Engineer is authorized to deduct the costs from any monies due or to become due to the Contractor.
e.Responsibility for Agency Expense . Any expens e incurred by the Agency in making removals, renewals, or repairs which the Contractor has failed or refused to make shall be paid for out of any monies due or which may become due the Contractor or may be charged against one or more Contract bonds.
f.No Compensation for Additional Time . No additional Contract time shall be warranted for any of the work described in this subsection . 105.14 SUNDAY S, HOLIDAY S, HOURLY RESTRICTIONS , AND NIGHT WORK .
a.Sundays . Unless otherwise specified in the Contract or authorized in writing by the Engineer, t he Contractor shall not perform construction operation s on Sundays.
b.Holidays . Unless otherwise specified in the Contract or authorized in writing by the Engineer, the Contractor shall not work during the following holiday periods : New Year’s Day January 1st Martin Luther King Jr. Day Third Monday in January Presidents’ Day Third Monday in February Town Meeting Day First Tuesday in March Memorial Day Last Monday in May Independence Day July 4th Bennington Battle Day August 16th Labor Day First Monday in September Indigenous Peoples’ Day Second Monday in October Veterans Day November 11th Thanksgiving Day Fourth Thursday in November Day After Thanksgiving Day After Thanksgiving Christmas Day December 25th
1-47 If a holiday falls on a Sunday, the Monday immediately following it shall be considered the
holiday. If a holiday falls on a Saturday, the Friday immediately preceding it shall be considered the holiday. Designated holiday periods shall begin at 12:00 noon on the day before the weekend or holiday, whichever applies, and shall end at 6:00 a.m. on the day after the holiday or the weekend, as appropriate. The Engineer may require the Contractor to cease construction operations for the entire day before if a holiday falls on a Tuesda y, or for the entire day after if a holiday falls on a Thursday.
c.Hourly Restrictions . The Contract may specify that the Contractor is either prohibited from or required to work during certain hours or may limit the type of operations that may be perfor med during certain hours. If work is performed between 7:00 p .m. and 6:00 a .m., the Contractor shall take measures to mitigate the noise caused by its construction operations. Wherever practicable, the Contractor should sequence work such that noisy activ ities occur concurrently. Other potential n oise reduction mitigation measures are outlined in the FHWA Highway Construction Noise Handbook . In addition, t he Contract may specify a maximum decibel limit or other required noise restrictions. The cost for mitigating noise will not be paid for separately but will be considered incidental to all other Contract items. At a minimum, the Contractor shall use the following noise mitigation techniques:
1.Use broadband sound (i.e. white -noise, whooshing sound) ty pes of backup alarms, or adjustable backup alarms where the volume can be adjusted down for the ambient noise level.
2.Shield or insulate stationary equipment such as air compressors and generators.
3.Employ systems to prevent slamming tailgates on du mp trucks.
d.Night Work . Work performed at night , as defined in Subsection 101.02 , will require a lighting plan as specified in Section 641 .
e.Applica bility . The limitations in this subsection shall not apply for the purposes of maintenance, emergency repairs, and proper protection of the work, including but not limited to the curing of concrete and the repair and servicing of equipment. The limitations in this subsection also shall not relieve the Contractor of any responsibility for the work involved as set forth in Subsection 105.0 8, Subsection 107.17 , or elsewhere in the Contract.
1-48 105.15 CONVICT LABOR . No incarcerated convict labor shall be employed on the Contract .
105.16 LOAD RESTRICTIONS .
a.General . The Contractor and all subcontractor s, suppliers, or others involved in any project -related activities shall comply with all legal load restrictions specified in 23 V.S.A. § 1392 in the hauling of equipment or material on public roads, including that beyond the limits of the project . The application for and possession of any hauling or related permit will not relieve the Contractor or others involved in any project -related activities of any liability that may arise due to any damage resulting from the use or moving of equipment , vehicles, or a ny other project -related activity.
b.Limitations on Use of Equipment and Vehicles . Use of equipment and vehicles is subject to the following:
1.No vehicle or equipment exceeding the load restrictions cited in 23 V.S.A. § 1392 will be permitted on any structure as defined by the Engineer.
2.The operation of any equipment or vehicle of such weight or any other project -related equipment loaded so as to cause damage to structures, the roadway , or to any other type of active construction will not be p ermitted, regardless of the limits set forth in 23 V.S.A .
3.Hauling or operation of said vehicles or equipment over any permanent course of any bituminous pavement or any structure during active construction will not be permitted.
4.Notwithstanding tho se restrictions above, the Contractor shall be responsible for any and all damage incurred to any public roadway as defined in 23 V.S.A. due to the use of any equipment or vehicles related to project activities.
c.Penalty and Reduction for Overweight Ope ration . Each vehicle entering or leaving the project limits shall be within the legal load limit or the load limit imposed by a current overload permit for the roadway s and structures. Should any vehicle not meet these requirements, in addition to the appr opriate penalty under 23 V.S.A. § 1391a , the difference in weight between the legal load limit and the gross vehicle weight shall be converted to the appropriate measurement quantity for the item involved and treble this amount shall be deducted from the q uantity of the item to be paid the Contractor. The Contractor shall not deduct this amount from the payment to its trucking subcontracto rs or suppliers.
d.Provision of Overweight Permit Copies . The Contractor shall provide copies of overweight permits to the Engineer prior to the commencement of hauling. Copies of permits provided after hauling has begun will not be considered to be in effect for the project prior to the time that the Engineer receives the copy.
1-49 (e) Provision of Tare Weight . The Contractor shall provide the Engineer with tare weight s for all
vehicles carrying or delivering material s to be used on a project . A tare weight shall be the weight of the unloaded vehicle with full fuel tank and water tank as applicable.
f.Application to All Vehicles Used for the Project . These requirements, including the overload reduction, shall apply to the Contractor’s vehicles as well as all other vehicles used in conjunction with the construction of this project , including the vehicles of subcont ractor s and suppliers. 105.17 MAINTENANCE OF THE PROJECT DURING CONSTRUCTION .
a.General . The Contractor shall maintain the work during construction and until the work is accepted. This maintenance shall constitute continuous and effective performance of the work day- by-day with adequate equipment and forces so that the project is kept in satisfactory condition at all times.
b.Costs . All cost of maintenance work during construction and before acceptance of the work shall be included in the Contract unit price s for the various pay item s, and the Contractor will not be paid an additional amount for such work .
c.Maintenance During Shutdown . In the event the work is ordered shut down for failure to comply with the provisions of the Contract or for any other reas on, the Contractor shall maintain the project as provided herein and provide such ingress and egress for local residents as necessary during the period of shutdown. 105.18 FAILURE TO MAINTAIN THE PROJECT . Failure on the part of the Contractor to properly maintain the work will result in the Engineer immediately notifying the Contractor to comply with the required maintenance provisions. If, after receipt of such notice, the Contractor fails to remedy the situation to the Engineer’s satisfaction, the Engineer will proceed with adequate forces and equipment to maintain the project ; the cost of this maintenance will be deducted from monies due or which may become due the Contractor under the Contract. 105.19 FINAL INSPECTION AND ACCEPTANCE .
a.General . The Contract will not be accepted until all of the work required by the Contract has been satisfactorily completed.
b.Procedure . Upon notice from the Contractor of their intent to achieve substantial complet ion, the Engineer will review the work and issue a written order if the project has achieved substantial completion . The written order will document the date on which the project achieved substantial completion .
1-50 The Engineer will arrange a date for a final inspection of the work . As a result of the final
inspection a final punch list will be developed and provided to the superin tendent. When the punch list is completed and all work provided for and contemplated b y the Contract is found to be completed, the Contractor will be informed in writing that the project is complete and accepted. 105.20 CLAIMS FOR ADJUSTMENT .
a.Claims Process – In General . Whenever the Contract or learns that a condition and/or issue may result in costs and/or delays that were not anticipated by the Contract or at the time of bid, the Contract or shall provide the Engineer with notice of that fact immediately or as soon as reasonably possible. It is critical that the Agency be aware of potential Claims at the earliest opportunity so that it can carefully monitor the potential additional costs and potentially assist the Contract or in taking steps to mitigate those additional costs. Thus, the Contract or shall promptly file a Notice of Intent to File a Cl aim. If the Contract or later decides to file a Claim for additional compensation under the Contract , that Claim must provide certain key pieces of information to the Construction Engineer so that the claim can be evaluated expeditiously. If necessary, th e Construction Engineer will contact the Contract or for additional information about the Claim and may request a meeting with the Contract or. The Construction Engineer typically does not invite legal counsel to such meetings unless the Contract or chooses t o have its own legal representation at the meeting.
b.Notice – Procedural Requirements . In order to bring a Claim for additional compensation for costs and conditions not clearly covered under the Contract, the Contractor shall provide written notice (“Notice of Intent to File a Claim for Additional Compensation ” or the “Notice”) to the Engineer before incurring any costs or conducting any work that could in any way be included in any such Claim for additional compensation under the Contract (the “Claim ”). The Engineer’s written acknowledgement of receipt of the Notice and the Contractor’s daily reporting under this subsection, shall not be construed as an approval by the Agency of the merits of the Claim .
c.Notice – Substantive Requirements . The words “N otice of Intent to File a Claim” shall appear in large print at the top of the document. The Notice shall specify the ba sis for the Claim, including the nature of the Claim, the reason why the Contractor believes that the Agency is responsible for payment of the Claim, and a description of the additional compensation, including reference to each activity associated with the work and/or material s, including reference to any impacts to the Contractor’s progress schedule , as defined in Subsection 108.03 (a), or CPM schedule , as defined in Section 63 3. If the Contractor fails to provide the Notice as specified herein, the Contractor waives its right to bring the Claim under the Contract and the Agency may deny the Claim on this basis alone.
1-51 (d) Notice Documen tation Requirements . Upon providing the Notice of Intent to File a Claim, the
project superintendent shall commence daily records for all labor hours, equipment hours (idle and operating), and material s involved with the work or material s at issue in the Notice and submit such records to the Engineer on a daily basis. (“Daily Records”). Such records shall separate the work and/or material s subject to the Claim from the undisputed work , and include a written analysis of how the work and/or material s at issue in the Notice impact (s) the critical path. If the Contractor fails to provide such records to the Engineer as required herein, the Contractor waives its right to bring the Claim, and the Agency may deny the Claim on this basis alone.
e.Claim Documentation Requirements . The Contractor shall provide the Construction Engineer with the following documentation in support of the claim (“Claim Documentation”) . This documentation shall be structured, formatted, and labeled as noted.
1.Part 1 . A detailed statement of the claim , including the date on which the Contractor first became aware of the actions or conditions giving rise to the Claim, all necessary dates, location s, and work and material items at issue in the Claim , including copies of the Daily Records . Pages shall be labeled page 1 -1 through page 1 -X.
2.Part 2. A copy of the Notice of Intent to File a Claim . Pages shall be labeled page 2 -1 through page 2 -X.
3.Part 3. A list of the names of all Agency employees and agents, including consultants, the Contractor believes have knowledge or information concerning the facts giving rise to the Claim . Pages shall be labeled page 3 -1 through page 3 -X.
4.Part 4. A list of the names of all Contractor employees and agents, including subcontractor s, whom the Contractor believes have knowledge or information concerning the facts giving rise to the Claim . Pages shall be labeled page 4 -1 through page 4 -X.
5.Part 5. A list of the sp ecific provisions of the Contract that the Contractor believes support the Claim, and a description of why the Contractor believes those provisions support the Claim . Pages shall be labeled page 5 -1 through page 5 -X.
6.Part 6. A list of all documents and all written statements that the Contractor believes support the Claim , and copies of the same . Pages shall be labeled page 6 -1 through page 6-X.
7.Part 7. A statement as to whether additional compensation , an extension of time, or both, are being requested in the Claim . Pages shall be labeled page 7 -1 through page 7 -X.
1-52 (8) Part 8. If a time extension is being requested in the Claim , a statement as to the specific
number of days being requested, supported w ith reference to how the facts underlying the Claim affected the Contractor’s performance schedule, including how such facts affected the critical path. Reference shall be made to the Contractor’s baseline CPM schedule and any updates or revisions thereto, and a schedule analysis providing evidence of delays to the critical path shall be provided. If no time extension is being requested in the Claim, a statement to that effect shall be provided. Pages shall be labeled page 8-1 through page 8 - X.
9.Part 9. If additional compensation is being requested, an itemized listing of the total amount of any and all costs being sough t in the Claim , listed by category of work , including , but not limited to, work items, labor and material s costs, and costs relating to delays associated with performing the work . Such documentation shall include invoices for rented equipment , the EquipmentWatch Rental Rate Blue Book analysis for owned equipment , and subcontractor agreements. If no additional compensation is being requested in the Claim, a statement to that effect shall be provided. Pages shall be labeled page 9 -1 through page 9 -X.
10.Part 1 0. For ever y Claim , the Contractor shall provide a separate document containing the following Claims Certification. Under penalty of law for perjury or falsification, the undersigned, [insert individual’s name, job title, and company name], certifies that this claim for additional compensation for work on the Contract is a true and accurate statement of the actual costs incurred (in the amount of [insert amount], exclusive of interest) and is fully documented and supported unde r the Contract between the parties . The Claims Certification shall be signed, dated, and notarized and executed by a senior officer of the Contractor with legal authority to bind the Contractor, or if the Contractor is a sole proprietor, by the proprieto r. The Claims Certification may be used in any proceeding s regarding false Claims under 31 U.S.C. § 3729 or 32 V.S. A. § 631 . This p age shall be labeled page 10 -1.
f.Procedure for the Initial Adjudication of Claims . The initial determination of the merits of the Claim will be made by the Construction Engineer.
1.Completeness Determination . The Construction Engineer will determine whether the Claim Documentation provided by the Contractor meets the requirements of Subsection 105.20(e). If the Claim Documentation is not complete, structured, formatted, and labeled as required, it will be deemed incomplete and the Contractor will be required to resubmit it in its entirety.
1-53 The Construction Engineer will endeavor to make the Completeness Determination within
30 calendar days of receipt of the Claim. Where this 30 calendar day period is unfeasible, the Construction Engineer will inform the Contractor as to the status of the Completeness Determination, if necessary , on a quarterly basis. The review and analysis of the merits of the Claim may be postponed pending the Completeness Determination. The Construction Engineer will inform the Contractor, in writing, that the Completeness Determination has been issued.
2.Claims Analysis . Once the Construction Engineer has issued the Completeness Determination, the Construction Engineer w ill begin a principled, merits -based analysis of the Claim ( “Initial Claim Judgment” or “ICJ”). The Construction Engineer may seek additional documentation from the Contractor, including but not limited to a full set of the Contractor’s original bid prepar ation package.
a.The Construction Engineer may interview employees of the Contractor and subcontractor s and conduct other interviews or seek additional documents from other entities, including the Agency. The Construction Engineer may also hold an inform al hearing with the Contractor to ask any follow -up and clarifying questions, and to give the Contractor a full and fair opportunity to present the merits of the Claim. The Construction Engineer will endeavor to keep the Contractor informed as to the status of the Claim, if necessary, on a quarterly basis.
b.The Construction Engineer will make all reasonable efforts to issue, in writing, the ICJ, allowing or denying the Claim , in whole or in part, within 180 calendar day s of the Completeness Determination. The ICJ shall include findings of fact and conclusions of law with respect to the specific contract ual provisions governing the Claim.
g.Appeal to the Chief Engineer . If the Contractor is aggrieved by the ICJ, an appeal may be made to the Chief Engineer. Notwithstanding any other provision of law, case law, regulation, or the Contract, all appeals shall be made within 30 calendar days of the decision to which the Contractor is aggrieved, and not thereafter.
1.Review . The Chief Engineer will review the ICJ and determine whether additional documents or interviews will be necessary to decide the appeal. The Chief Engineer may interview or re -interview employees of the Contractor and subcontractor s and conduct other interviews or seek additional documents from other entities, including the Agency. The Chief Engineer may also hold an informal he aring with the Contractor to ask any follow -up and clarifying questions, and to give the Contractor a full and fair opportunity to present the merits of the Claim. The Chief Engineer will endeavor to keep the Contractor informed as to the status of the Cla im, if necessary, on a quarterly basis.
1-54 (2) Decision -Making . The Chief Engineer will make all reasonable efforts to issue, in writing,
the Agency’s final determination on the merits of the Claim (“Final Claim Judgment” or “FCJ ”), as required under paragr aph eight of Form CA-111B , “Dispute Resolution, Exclusivity of Administrative Remedies ,” within 180 calendar day s of the date of the appeal. The FCJ may affirm the ICJ in whole or in part, or may allow or deny the Claim , in whole or in part, on other grounds. The FCJ shall include findings of fact and conclusions of law with respect to the specific contract ual provisions governing the Claim.
3.Quasi -Judicial Appeal . If the Contractor is aggrieved by the FCJ, it may seek appellate review of the FCJ before the Transportation Board pursuant to Subsection 105.0 4. The Transportation Board shall defer to the factual findings of the FCJ and review t he legal conclusions of the FCJ de novo.
h.Time for Claims; Appeals . Notwithstanding any other provision of law, case law, regulation, or the Contract, all Claim s by the Contractor shall be submitted in writing within 90 calendar day s after the acceptance date of the Contract or within 90 calendar day s of the Notice of Intent to File a Claim, whichever occurs first, and not thereafter ( the “Claim Filing Period ”). Such Claim s shall meet the requirements set forth above, including , but not limited to , complete documentation supporting the Claim. Any additional time granted by the Construction Engineer because the Claim was incomplete or for the time to produce supplemental information shall not be the subject of any demand for interest payments or for attorneys’ fees and/or other costs. If the Contractor fails to file the Claim within the Claim Filing Period, the Contractor waives its right to bring the Claim. If the disputed work continues to be performed beyond the Claim Filing Period, the Contractor shall submit a written request to extend the Claim Filing Period prior to the expiration of the Claim Filing Period. The Contractor shall submit such requests for extension of the Claims Filing Period every 90 calendar day s until the disputed work is completed. Once the disputed work is complete, the Contractor must submit the complete Claim within the latest approved Claim Filing Period, or 90 calendar day s from t he date the disputed work was completed, whichever is first, and not thereafter. 105.21 PAYROLLS .
a.General . The Contractor shall maintain and make available payroll records as required in the Contract. This requirement shall also apply to the work of any subcontract or having a subcontract for any part of the work performed on the job. Any costs associated with this work will not be paid for directly but will be considered incidental to the Cont ract pay item s.
1-55 (b) Examination, Authority . The Contractor hereby authorizes the Engineer or the Engineer’s
authorized representative to examine the Contractor’s orders for construction work ers on file with the local employment office of the Vermont Dep artment of Labor .
c.Additional Contract Requirement . For construction and transportation project s with a value over $250,000, the Contractor shall implement a payroll process by which during every pay period the Contractor shall submit a list all workers who were on the jobsite during the pay period, including those employed by subcontractors and independent contractors, the work performed by those workers on the jobsite, and a daily census of the jobsite. This information, including confirmation that Contractors, subcontractor s, and independent contractors have the appropriate workers’ compensation coverage for all workers at the jobsite, and similar inform ation for the subcontractor s regarding their subcontractor s, shall also be provided to the Vermont Department of Labor and to the Vermont Department of Financial Regulation, upon request, and shall be available to the public. 105.22 ENVIRONMENTAL REGULATI ON. The Contractor shall perform all project related operations so as to give protection to the natural and cultural resources of the state. The Contractor shall conduct the work in conformance with all regulations and permit conditions applicable to the Contract . If the Contractor proposes to perfo rm the work differently than the manner provided in the Contract, the Contractor shall obtain approval from the appropriate regulating entities prior to performing the work . The costs associated with obtaining and complying with permits required to perform the work will not be paid for directly, but will be considered incidental to the Contract. 105.23 EROSION PREVENTION AND SEDIMENT CONTROL .
a.Submission of Plans . Unless otherwise required by Contract to comply with Subsection 653.03 , the Contractor shall submit a plan in writing for the prevention of erosion and control of sedimentation and pollution o n the project and on associated access roads, material waste and borrow area s, and staging area s. The plan shall be submitted no later than the preconstruction conference and a Notice to Proceed will not be issued until the plan has been found to be in conform ance.
b.Erosion Prevention and Sediment Control Measures . Erosion prevention and sediment control measures shall be installed and maintained in conformance with the Contract. Unless otherwise specified in the Contract, this work shall be performed as described in this section, Section 653 , and The Low Risk Site Handbook for Erosion Prevention and Sediment Control published by the Vermont Agency of Natural Resources .
1-56 (c) Engineer’s Authority; General . The Engineer has authority to limit the surface area of erodible
earth material exposed by construction activities and to direct the Contractor to provide immediate permanent or temporary erosion prevention and sediment control measures to minimize adverse effects on resources. This may include restricting the area of clearing and grubbing, excavation, borrow, and embankment operations such that these activities are commensurate with the Contractor’s capability to install erosion prevention and sediment con trol measures in accordance with the erosion prevention and sediment control plan .
d.Temporary and Permanent Erosion Prevention and Sediment Control . The Contractor shall incorporate all temporary and permanent erosion prevention and sediment control me asures into the project at the earliest reasonable time. Temporary erosion prevention and sediment control measures shall be used to prevent erosion and to correct conditions that develop during construction prior to installation of permanent measures. As the earthwork proceeds, slopes shall be graded to finish grade whenever practical , and all disturbed areas shall be stabilized by seeding and mulching or other acceptable methods within 48 hours of disturbance.
e.Erosion Control for Clearing and Grubbin g. Clearing and grubbing shall be performed so that the resulting exposed surfaces are stabilized with temporary or permanent measures within 48 hours.
f.Conflicts . In the event of conflict between the requirements of this subsection and those of federal , state, or local agencies, the more restrictive provisions shall apply as determined by the Engineer.
g.Suspension of Operations . If construction operation s are suspended, areas of exposed earth shall be stabilized. If permanent sta bilization is not possible, exposed areas shall be shaped and then covered with mulch or matting to intercept and divert runoff to locations where the least amount of erosion will result. During a suspension of construction operation s, the Contractor shall act immediately to correct any deficiencies that develop with the erosion prevention and sediment control measures and/or stabilized areas.
h.Maintenance of Temporary Erosion Prevention and Sediment Control Measures . Temporary erosion prevention and sediment control measures shall be acceptably maintained until both the permanent drainage facilities have been constructed and vegetation has been established throughout the project . 105.24 POLLUTION CONTROL .
a.General . The Contractor shall exercise every reasonable precaution to prevent pollution of the air, land and water of the state and shall comply with applicable statutes and regulations relating to the prevention and remediation of pollution.
1-57 (b) Bridge Operation s. For project s with bridge activities including demolition, painting, cleaning,
cutting, welding, or grinding operations, the Contractor shall include a description of any proposed containment measures as part of their erosion prevention and sediment cont rol plan , submitted in accordance with Subsection 105.23(a). When the bridge activities listed above are in progress where lead paint is known or suspected, the Contractor shall use containment devices to retain all generated materials. The Contractor shall also consult with the Vermont Department of Health to determine if a lead abatement permit is required. When required, the Contractor shall coordinate with the Agency ’s Hazardous Materials and Waste Coordinator to administer the permit request.
c.Coated/Treated Materials . The Contractor shall comply with all pollution control , health, and transportation regulations when cleaning, handling, moving, repainting, cutting, welding, sanding, or grinding any coated or treated materials.
d.Noise and Air Pollution . The Contractor shall employ standard methods to minimize noise and ai r pollution associated with construction operation s. The methods employed shall be acceptable to the Engineer and compatible with the location of the work . The burning of tires or other manufactured products is prohibited. In accordance with 23 V.S.A. § 1 110, equipment shall not be permitted to idle for more than 5 minutes in a 60 minute period .
e.Contaminated Materials and Hazardous Waste .
1.Unanticipated Contamination . Should evidence of unanticipated contamination (such as chemical or petroleum odors or presence of non -native materials including, but not limited to, solid waste, asphalt, or ash) be discovered during construction, the Contractor shall immediately notify the Engineer. The Agency will work with the Contractor to notify regulators as necessary and to develop a plan to manage the materials, waste, or both.
2.Generated Contamination . The Contractor shall provide documentation to the Engineer that any generated contaminated material or hazardous waste was characterized as necessary and disposed of in conformance with all applicable regulations.
f.Limits on Use of Mechanized Equipment . Unless otherwise approved in writing and permitted by the appropriate federal or state regulating authority, mechanized equipment shall not b e operated in the waters of the state.
g.Water Quality . Pollutants, including , but not limited to , chemicals, paints, fuels, lubricants, bitumen, raw sewage, sediment , or other waste, shall not be discharged into or alongside wetlands, waters of the state, or natural or constructed channel s leading thereto. Any construction activity in or adjacent to regulated waters shall comply with the Vermont Water Quality Standards .
1-58 105.25 Opening Off-Site Activity Areas .
a.General . The Contractor shall demonstrate that the proposed off-site activity ( OSA ) area is in accordance with all Contract permits and that the following requirements are met:
1.The final shape, slope, and contour of the land in and about the area will not be undesirable aesthetically or as it relates to drainage .
2.The OSA area i s consistent with any duly adopted development plan, land use plan , or land capability plan, whether site specific, local, or regional .
3.The entrance is at the most desirable angle or perspective from any nearby highway s, residences, and other facilities .
4.Clearing performed in OSA areas shall comply with the requirements of Subsection 201.06 . The Contractor shall remove, stockpile, and preserve topsoil, sod, and other suitable material from the surface of the area prior to proceeding with other operations .
5.The Contractor shall have all erosion prevention and sediment control measures, as indica ted in the conform ing erosion prevention and sediment control plan , in place prior to use of the area. At a minimum, the requirements of The Low Risk Site Handbook for Erosion Prevention and Sediment Control published by the Vermont Agency of Natural Resources shall be used as best management practices for OSA areas.
b.Clearances .
1.Exempt Sites . Certain types of sites for certain activities are exempt from requiring further review of potential natural and cultural resource impacts. A list of these exemptions is part of the Off-Site Activity Exemption Record form that is available on the Agency ’s website. To use an exempt OSA area, the Contractor shall complete this form and then submit it to the Engineer.
2.Non-exempt Sites . For non -exempt OSA areas, the Contractor shall complete the Off-Site Activity Submittal form that is available on the Agency’s website. The completed form shall be submitted to the Environmental Section to review potential natural and cultural resource i mpacts. A copy of this form shall also be submitted to the Engineer. Within 21 calendar day s, the Environmental Section will provide an OSA review form indicating conformance or non -conformance of the site, along with any specific conditions.
c.Permits . The Contractor and/or the property owner shall be required to obtain or amend all necessary federal , state, and local permits and clearances prior to using an area for an Agency project . Any fees related to applications for such permits shall be the respo nsibility of the Contractor.
1-59 105.26 Maintaining Off-Site Activity Areas .
a.General . The Contractor shall conduct operations at OSA areas so as to minimize air pollution. The Contractor shall keep in a condition acceptable to the Engineer the portions of an area where a pit or pits have been opened and shall maintain all access roads with sufficient dust control and proper drainage to prevent damage to adjacent properties. Area operations shall be restricted to normal working hours except with the express written approval of the Engineer and shall be in accordance with all permit conditions. All OSA areas shall comply with the environmental regulatio ns described in Subsection 105. 22 and the pollution control described in Subsection 105.2 4.
b.Area Erosion Prevention and Sediment Control Measures . Installation and maintenance of erosion prevention and sediment control measures at OSA areas shall be co nsistent with the conforming erosion prevention and sediment control plan for the specific area. The on-site plan coordinator (OSPC) shall review these areas as required in the Contract.
c.Seasonal Shutdown . For areas that will be used for more than one construction season , the Contractor shall grade to no steeper than 1:3 ( V:H) and seed and mulch disturbed fill areas prior to shutting down for the season. 105.27 CLOSING OFF-SITE ACTIVITY AREAS . With the exception of those areas which will remain open for commercial use, the Contractor shall complete the following prior to the completion and acceptance of the project :
a.Shaping . The Contractor shall shape the entire area to leave banks in a neat and presentable cond ition, properly and thoroughly graded and drained.
b.Vegetation Establishment . Vegetation shall be established on all disturbed areas.
c.Removal of Debris . All stones, boulders, stumps, and debris shall be removed or satisfactorily disposed of.
d.Angle of Slopes . Slopes shall not be left steeper than 1:3 ( V:H) for earthen fills. Slopes shall not be left steeper than 1:2 (V:H) for fill made up of stone or concrete. The tops of slopes and toes of slopes shall be neatly rounded.
e.Spreading Stripped Material . Stockpiled sod, topsoil, and other stripped material shall be evenly spread over the surface of the area. The complete area shall be seeded and mulched in acco rdance with Section 65 1.
1-60 105.28 Payment for Erosion Prevention and Sediment Control .
a.General . Unless otherwise indicated in the Contract, all material s, installation, monitoring, maintenance and, where necessary, removal for those erosion prev ention and sediment control measures required by the Plans and/or the Engineer that are not items in the Contract will not be paid for directly, but will be considered incidental to all other Contract items. Environmental protection work in connection with erosion prevention and sediment control for the opening, maintaining, and closing of OSA areas and pollution control measures will not be paid for directly, but will be considered incidental to all other Contract items. Costs for damage to OSA areas, to the owners thereof, or to adjacent property owners shall be the responsibility of the Contractor.
b.Temporary Erosion Prevention and Sediment Control Measures . Required temporary erosion prevention and sedi ment control work not attributable to the Contractor’s negligence, carelessness, or failure to install permanent controls will be performed and paid for as specified in Subsection 105.28(a), or as ordered by the Engineer. Temporary erosion prevention and s ediment control measures required due to the Contractor’s negligence, carelessness, or failure to install permanent controls as a part of the scheduled work or as ordered by the Engineer shall be performed by the Contractor at the Contractor’s expense.
c.Failure to Control Erosion, Pollution, or Siltation . In case of repeated failures by the Contractor to control erosion, pollution, or siltation, the Engineer may employ outside assistance or use state forces to provide the necessary corrective measures. Such incurred direct costs, plus project engineering co sts, will be charged to the Contract and appropriate deductions made from any money or monies due or to become due the Contractor. 105.29 VALUE ENGINEERING .
a.General . The intent of value engineering (VE) is to provide an incentive to the Contractor to initiate, develop, and present to the Engineer for consideration cost reduction proposals involving changes in the drawings, designs, specification s, or other requirements of the Contract. These provisions do not apply unless the proposal submitted is specifically identified by the Contractor as being presented for consideration as a VE proposal. The change in cost proposals contemplated are those that would require a chang e order modifying the Contract and would produce an overall savings to the public by providing items or methods other than those specified in the Contract and/or reduce future maintenance costs without impairing or compromising essential functions and char acteristics such as service life, safety, durability, reliability, economy of operation, ease of maintenance, and necessary standardized features.
1-61 A VE proposal shall contain proven features that have been used under similar conditions, and is
presented as such, and does not contain equivalent options already provided in the Contract. The Agency will not be responsible for schedule delays that occur as a result of the Contractor ’s desire to pursue a VE proposal.
b.Procedure .
1.General . Unless mutually agreed otherwise, the VE proposal approval process will occur in three steps:
a.A conceptual VE proposal submission and review .
b.A detailed VE proposal submission and evaluation .
c.If the VE proposal is approved, a change order modifying the C ontract, including the amount of payment due to the Contractor and credit due to the Agency.
2.Conceptual Value Engineering Proposal . To begin the VE proposal approval process, the Contractor shall submit a written Conceptual Value Engineering Proposal ( CVEP) to the Engineer for consideration. The CVEP is not a formal and complete submittal based upon detailed technical analysis, but instead relays a conceptual idea based upon the Contractor’s knowledge and expertise. The CVEP sh all include the following information based upon the Contractor’s best knowledge and understanding:
a.General Description . A narrative that describes the proposed change in concept and includes the basic differences between the existing Contract and the proposed change.
b.Advantages and Disadvantages . A listing and brief description of the comparative advantages and disadvantages of the CVEP including effects on the service life, safety, durability, reliability, economy of operation, ease of maintenance, and any other facto rs significantly altered by the CVEP.
c.Impacts to Permits and/or Third -Party Agreements . A description of steps necessary to address existing permits, new permits, or third -party agreements that may be impacted or required in order to initiate the propos ed change(s). In addition, the Contractor shall describe its expectation of securing or modifying these documents, who is responsible for securing them, and required timeframe(s).
1-62 d. Identification of Prior Similar CVEPs . If the CVEP was submitted previ ously on
another Agency project , the date, the project name and number, and the action taken by the Agency shall be indicated.
e.Known Use or Testing . A description of any previous use or testing of the concept(s) included in the CVEP that is known to the Contractor, including the tester, the conditions, and the results.
f.Estimate of Net Savings . An estimate of the Net Savings as defined in Subsection 105.2 9(c). This amount shall not include the cost to prepare and submit the CVEP.
g.Estimate of Deve lopment Costs . A scope of work and related cost estimate to develop and submit a Detailed Value Engineering Proposal (DVEP). This estimate shall include a detailed estimate of both the engineering costs the Contractor will incur in preparing the DVEP (the “Internal DVEP Costs”) and the cost the Contractor will incur to obtain specialty engineering services that the Contractor cannot perform and which are necessary to prepare the DVEP (the “External DVEP Costs”) (collectively, the “DVEP Costs”). If the Contr actor establishes, to the satisfaction of the Construction Engineer, that it does not have the financial resources to incur the DVEP Costs, the Agency may, in its sole discretion, decide to advance the Contactor up to 50% of the DVEP Costs. In no event wil l the Agency pay more than 50% of the DVEP Costs, nor will the DVEP Costs exceed 50% of the Net Savings amount, as defined in Subsection 105.2 9(c)(3).
h.Savings and Schedule Impacts . An estimate of the time necessary for the Contractor to submit a DVEP and the time -sensitivity of the savings identified. Such estimate shall specify the date by which the Agency must approve the DVEP to obtain the maximum cost reduction, and the latest date by which the Agency must approve the DVEP for the Contractor t o avoid significant impacts on the estimated Net Savings or the Contractor’s schedule of work . If the Agency determines that the time for response is insufficient for review, the Contractor will be promptly notified. The Contractor shall identify the date by which if the DVEP is not approved the VE will be withdrawn and the original work can commence without delay to the project .
i.Plans and Specifications . A set of preliminary plans and specifications, prepared as construction drawing s in accordance wit h Subsection 105.0 6, showing the proposed revisions relative to the original Contract feat ures and requirements. VE proposals that require engineering design, computations, or analysis shall be prepared under the responsible charge of , and sealed and signe d by, a professional engineer . The plan, specification, and engineering changes should be progressed far enough along to clearly show the design intent and be able to provide a quality cost estimate.
1-63 j. CVEP Presentation . Within 7 calendar day s of submitting a CVEP, the Contractor
shall be available to attend a meeting scheduled by the Agency for the purpose of presenting and answering questions regarding the CVEP. The purpose of the meeting is to discuss possible risks, design implications, an d schedule impacts associated with the VE proposal. If applicable, the Contractor shall be accompanied by their engineer responsible for the plan and specification revisions associated with the VE proposal.
k.Agency Review . The Agency will use its best e fforts to review a conforming CVEP and respond to the Contractor within 14 calendar day s of receipt. The Agency may, at its sole discretion:
1.Invite the Contractor to submit a DVEP .
2.Reject the CVEP for reasons that will be described briefly .
3.Reque st additional information.
3.Detailed Value Engineering Proposal . If invited by the Agency as provided in Subsection 105.2 9(b)(2)k .1., the Contractor may submit a Detailed Value Engineering Proposal (DVEP ). DVEPs will be processed in the same manner as prescribed for any other alterations of the Contract that require a change order and shall contain, as a minimum, the following information:
a.Description . A description of what is being changed, altered, or d eleted, and why, and what is being proposed to improve upon the originally designed feature.
b.Itemization . An itemization of the requirements of the Contract ( Plans, specification s, pay item s, and unit price s) that must be changed and a recommendation of how to make each change, including a description of the advantages and disadvantages and where these items have been successfully used on other project s before or tested elsewhere.
c.Computation of Net Savin gs. A detailed computation of the estimated net savings to be generated as defined in Subs ection 105.2 9(c)(3), actual DVEP development costs, and estimated savings and schedule impacts, including approval date(s) required. If the Agency determines that the time for response is insufficient for review, the Contractor will be promptly notified.
1-64 d. Prediction of Other Costs . A prediction of any effects the proposed changes would
have on other costs to the Agency, including environmental effects, traffic impacts, and preventive action or treatment costs.
e.Plans and Specifications . A complete set of plans and specifications, prepared as construction drawing s in accordance with Subsection 105.0 6, showing the proposed revisions relative to the origi nal Contract features and requirements. All DVEPs that require engineering design, computations, or analysis shall be prepared under the responsible charge of and signed and sealed by a professional engineer .
f.Contract Completion . A statement as to the e ffect the proposal would have on the time for the completion of the Contract. An e xtension to the original Contract completion date will generally not be approved.
4.Evaluation of the DVEP . The Agency will evaluate the DVEP and consider the following:
a.The Agency may request any additional information that it determines is necessary to properly evaluate the DVEP. Where design changes are proposed, such additional information may include results of field investigations and surveys, design computations, s pecifications, and any field changes already incorporated into the project . The Contractor shall promptly provide any such requested information.
b.The Agency may require the Contractor to provide additional information to verify the Contractor’s cost analysis.
c.When the Agency is acting as the contracting authority for a locally owned facility, the local governing body must also provide approval. The Contractor shall present their proposal to the local governing body and allow suffi cient time to present the proposal and receive comments.
5.Evaluation Response . The Agency will use its best effort to evaluate a conforming DVEP and provide the Contractor with a written response within 30 calendar day s of receipt of all of the informat ion it has determined was necessary to properly evaluate the DVEP. Such a response will include a brief description of the Agency’s reason(s) for its decision. The Agency, at its sole discretion, will either accept the DVEP, accept it with contingencies , or reject it.
1-65 (6) No Liability for Delay . The Agency shall not be liable for any delay in acting upon any VE
proposal submitted. The Contractor may withdraw in whole or in part any VE proposal not accepted within the period specified in the proposal. The decision of the Agency as to the acceptance or rejection of VE proposals will be final and will not be subject to the provisions of Subsection 105.0 4 or Subsection 105.20.
7.Contingencies . The Agency may accept a DVEP with contingencies, which , if not met by the Contractor, will prompt the Agency to reject the DVEP before the execution of a change order . Contingencies may include , but are not limited to , the necessary approvals of permits, amendments, execution or amendments to third -party agree ments, specific deadlines for completion of submittals, or execution of permits, agreements, and/or amendments thereof.
8.Rejection/Termination . If the Agency rejects the DVEP, the DVEP process will terminate. The Agency, in its sole discretion, will det ermine whether to reimburse the Contractor for DVEP Costs, and if so, what percentage of those costs. In no event will the Agency pay more than 50% of the DVEP Costs. These costs will not include the cost to prepare the CVEP.
c.Accepted Proposals; Chang e Order . If a DVEP is accepted, or if it is accepted with conditions and the Contractor wants to proceed, the necessary Contract modifications will be effected by execution of a change order which will provide for equitable price adjustments giving the Contractor and the Agency equal shares in the net savings. Unless and until a proposal is effected by such Contract modification, the Contractor shall remain obligated to perform in accordance with the terms of the existing Contract. In addition to the requirements of Subsection 109.04 and Subsection 109.05 , the DVEP will set forth the credit due the Agency calculated as the difference between the cost of performing the work , as originally specified, and the amount payable to the Contr actor for the revised work . The payment for this Contract modification will only include the following amounts:
1.The cost of performing the work as revised by the DVEP at agreed upon unit or lump sum prices .
2.The DVEP development costs that the Agenc y agreed to reimburse the Contractor as provided in Subsection 105.2 9(b)(2)g. , if any .
1-66 (3) An amount equal to 50% of the Net Savings generated by the DVEP as determined by the
Agency, calculated as follows: 𝑁𝑆=𝐸𝐺𝑆+𝐶𝑆𝑃−𝐶𝑈𝐷𝐶−𝐴𝑉𝐸𝐶 where: NS = Net Savings generated by the DVEP. EGS = Estimated Gross Savings is an agreed upon difference between the cost of performing the work as originally specified in the Contract and the cost of performin g the work as revised by the DVEP. CSP = Cost Savings to the Public are those funds not expended by the public, including but not limited to reduced maintenance costs and reduced road user costs. CSP shall not include any cost savings attributable to a tim e period exceeding 10 years from the Contract completion date . CUDC = Contractor’s Unreimbursed Development Costs related to the preparation of the DVEP, including costs of the Contractor’s design subconsultants and subcontract ors, but excluding all such costs already paid by the Agency under Subsection 105.2 9(b)(2)g. AVEC = Agency’s VE Costs related to review, approval, and implementation of the DVEP including design costs, field inspection, and the value of any Agency -provided property. The change order effecting the necessary Contract modifications shall establish the Net Savings agreed upon and shall provide for such adjustment in the Contract price as will divide the Net Savings equally between the Contractor and the Agency. All reasonably incurred cos ts of developing the cost reduction proposal and implementing the changes, including any increased costs to the Agency resulting from its application, will be deducted from the total estimated decrease in the Contractor’s costs of performance to arrive at the Net Savings.
d.Subsequent Payment Adjustments . Upon completion of the portion of the work revised by the DVEP, the Agency, on its own initiative or upon request by the Contractor, may review the actual Net Savings realized by the DVEP. The Contractor will be afforded an opportunity to review and comment on such a review. If the actual Net Savings were greater than set forth in the change order , the increased savings will be shared equally between the Agency and the Contractor. If the Net Savings were less than set forth in the change order , the reduction in savings will be borne equally by th e Agency and the Contractor by a reduction of amounts otherwise due to the Contractor.
1-67 (e) General Conditions .
1.DVEPs will remain the property of the Contractor, provided that the Agency will have the unrestricted right to use any approved DVEP, or an y DVEP in which the Agency has reimbursed the Contractor for any portion of the development costs, on other Agency project s without notice, cost, or liability to the Contractor.
2.Only the Contractor may submit DVEPs. The Contractor shall review, be resp onsible for, and submit all proposals initiated by the Contractor’s subcontractor s.
3.The Contractor shall not anticipate Agency approval of a VE proposal when bidding or otherwise before approval of a DVEP. The Contractor is responsible for all delays c aused by the VE proposal that were not negotiated in the change order .
4.If a VE proposal is rejected by the Agency, the Contractor shall perform the work in accordance with the Contract.
5.Except as otherwise provided in this subsection , the Contractor shall have no claim against the Agency for additional compensation or time resulting from the delayed review or rejection of a DVEP, including but not limited to development costs, loss of ant icipated profits, and increased material or labor costs.
6.Cost sharing applies only to the Contract for which the DVEP was submitted.
7.Upon acceptance of a cost reduction proposal, any restrictions imposed by the Contrac tor on its use or on disclosure of the information submitted shall be void, and the Agency shall thereafter have the right to use, duplicate, and disclose in whole or in part any data necessary to the use of the proposal on this project or other project s.
8.Any time savings realized by implementation of VE proposals may result in a corresponding adjustment in the Contract completion time. No incentive pay will be provided for early completion days resulting from time savings of any approved VE proposals.
9.Because the Agency has no obligation to change the terms of the original Contract, all VE proposal decisions by the Agency are final and are not subject to the dispute resolution provisions provided in this Contract or otherwise available in law.
1-68 (10) The Contractor may withdraw any DVEP prior to the time the Contractor signs the change
order . If the Contractor elects to withdraw the DVEP in accordance with this provision, the Contractor waives its right under Subsection 105.2 9(b)(2)g. for reimbursement of DVEP costs, including any costs advanced to the Contractor. If such costs have been advanced, the Contractor shall reimburse the Agency for those costs within 30 calendar day s of withdrawing its DVEP.
11.Acceptance of a DVEP by the Agenc y does not indicate any assumption of liability by the Agency for any design errors and/or omissions associated with the DVEP implementation.
1-69 Section 106 – Control of Material
106.01 SOURCE OF SUPPLY AND QUALITY REQUIREMENTS . The material used in the work shall meet the requirements of the Agency’s Quality Assurance Program . The Agency ’s Quality Assurance Program , including the Materials Sampling Manual , has been developed to clearly articulate the processes for acceptance of material s in construction and maintenance. In order to expedite the inspection and testing of material s, the Contractor shall notify the Engineer of the proposed approved sources of material s at least 96 hours prior to delivery. Sources not previously approved by the Agency will require a minimum of four weeks’ advanced notification to complete the necessary inspection and testing of material s. At the option of the Engineer, material s may be approved at the source of supply before delivery is started. If it is found during acceptance that supplied material s from previously approved sources do not meet specification s, the Contractor shall take action to supply material s that meet specif ication s. 106.02 LOCAL MATERIAL SOURCES . The Contractor shall determine potential sources of material and the amount of equipment and work required to produce material meeting the specification s. The Agency’s Geologist maintains a list of material sources that have previously produced material s meeting specification s. The ability to purchase from the owner(s) of the source(s) and the quality of the material are not guaranteed by the Agency. The Contractor acknowledges that it is not possible to ascertain from samples the limits of a deposit and th at variations in quality in a material source are normal and to be expected. Exploration for new material sources will be the responsibility of the Contractor. The Engineer may order procurement of material from any portion of a material source and may rej ect portions of the material sources as unacceptable. It shall be the responsibility of the Contractor to acquire the right to take material s from any source together with the right to use such property as required for whatever purpose, including plant sit es, stockpiles, and haul roads. The Contractor shall pay all costs related thereto together with any costs resulting from exploring and developing these sources. 106.03 SAMPLES AND TESTS . All material s will be inspected, sampled, tested , or accepted by the Engineer as incorporated into the work . Under any applicable quality acceptance (QA) specification s, the Contractor shall perform all process quality control testing with the Engineer performing all quality acceptance testing. Any work in which untested and/or unaccepted material s are used without the approval or written permission of the Engineer shall be performed at the Contractor’s risk. Any work determined to be unacceptable and unauthorized will not be paid for. When modified AASH TO or ASTM test methods or Agency test methods are designated, the test method will be available from the Agency’s Materials Testing and Certification Section. Tests for compliance with specification requirements will be made by and at the expense of the A gency.
Source: Vermont Standard Specifications for Construction, 2024 Edition. Pages 53–84 of 1,380.