108PROSECUTION AND PROGRESS

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1-94SECTION 108 – PROSECUTION AND PROGRESS

108.01SUBLETTING OR ASSIGNMENT OF THE CONTRACT

or any portion thereof, or of its right, title , or interest therein to any individual, firm, corporation, or other entity without the written consent of the Engineer. The Contractor shall file with the Agency copies of all executed subcontracts and other documents. An approved subcontract or shall not in turn sublet or assign any of the work pertaining to the subcontract without the Contractor obtaining further permission from the Agency. In no event shall Agency approval release the Contractor from responsibility and liability under the Contract and bo nds.

organization amounting to at least 50% of the total Contract work amount, minus specialty items. The Contractor’s own organization includes only workers employed and paid directly by the Contractor and equipment owned, leased, or rented by it from a non -debarred individual or entity, with or without operators. The term own organization does not includ e employees or equipment of a subcontractor , assignee, agent, or supplier of the Contractor. When determining whether the Contractor is in compliance with this 50% requirement, the following shall apply:

Contract shall be included in the amount upon which the 50% requirement is computed.

subcontract , unit p rices. If only a part of a Contract item is to be sublet, its proportional value shall be determined on the same basis.

materials into the project , these actions must be considered in combination and as constituting a single subcontract .

computing the amount of work required to be performed by the C ontractor’s own organization. Specialty items will be designated as such in the Special Provisions and may be performed by subcontract .

administration of the C ontract, comply with the following performance requirements:

108 1-95 (1) Commercially Useful Function . The Contractor and subcontract or(s) must each perform a commercially useful function. This means that the Contractor/ subcontract or is responsible for the execution of a distinct element of the work of a Contract and carries out its responsibilities by actually performing, managing, and supervising the work involved. The Contractor/ subcontract or must have the latitude to independently :

Contractor/ subcontract or shall not broker work for another firm or act as a bidding conduit.

any subcontracted work is performed in accordance with the Contract requirements, the Contractor shall be required to furnish:

who has full authority to direct performance of the work in accordance with the Contract requirements and who is responsible for all construction operations on the project regardless of who performs the work .

who is authorized to receive orders and to issue binding directions concerning safety to all persons except Agency representatives associated with the project , whether employed by the Contractor, subcontract ors, or material suppliers.

Construction Engineer determines are necessary to ensure the performance of the Contract (e.g. supervisory, managerial , and engineering personnel ).

payroll the employees of another firm for the purpose of avoiding federal or state regulations or the provisions of the Contract.

108 1-96 108.02 APPROVAL TO BEGIN WORK . Prior to being issued a Notice to Proceed (NTP), a preconstruction conference shall be held with the Agency and the Contractor. The purpose of this conference will be to discuss the Contractor’s general plan of operation and any special requirements of the Contract. The Contractor shall be prepared to discuss their schedule, EPSC plan, and any special methods or equipment they intend to use. The Contractor shall not commence construction operations until the written NTP has been issued. The NTP will be iss ued once all administrative submittals have been approved or found to be in conformance by the Agency and all other preconstruction activities required by the Contract have been completed.

108.03PROSECUTION AND PROGRESS OF THE WORK

the preconstruction conference. The progress schedule shall show the proposed sequence of work and when the Contractor proposes to complete the various items of work within the times established in the Contract. During the progress of the work , the Contractor shall confer with the Engineer concerning performance of the work in accordance with the conforming schedule. The conforming schedule shall be used as a basis for establishing major constructi on operations and for checking the progress of the work . A Notice to Proceed will not be issued until the progress schedule has been found to be in conformance.

times, in a manner, and with sufficient materials, equipment , and labor so as to ensure its completion within the times set forth in the Contract.

discontinued by the Contractor for any reason, the Contractor shall notify the Engineer at least 24 hours before resuming operations.

108.04LIMITATIONS OF OPERATIONS . The Contractor shall conduct the work at all times in a

manner and sequence that will ensure the least interference with traffic. The Contractor shall have due regard to the location of detours and to the provisions for handling traffic. The Contractor shall not commence work to the prejudice or detriment of work previously started. The Engineer may require the Contractor to complete an area on which work is in progress before work is commenced on other areas if the opening of the area in progress is essential to public convenience.

108 1-97 108.05 CHARACTER OF WORKERS, METHODS, AND EQUIPMENT .

work in the manners and times required by the Contract .

perform the work assigned to them. Workers engaged in specialty or skilled work shall have sufficient skill, experience , and experience with equipment required to perform such work properly and satisfactorily.

electrician (master or journeyman). Electrical work shall be defined as any work which involves making connections to electrical components or splices in wiring that are, or will be, carrying 100 volts or more. Under the supervision of means that the licensed electrician employed on the project shall be ph ysically present on the project and shall be actively supervising the work .

who, in the opinion of the Engineer , does not perform work in a proper and skillful ma nner or is intemperate or disorderly shall, at the written order of the Engineer, be removed immediately by the Contractor or subcontract or employing such person and shall not be employed again in any portion of the work without the approval of the Enginee r.

required in Subsection 108.05(d) or fails to furnish suitable and sufficient personnel for the proper prosecution of the work , the Engineer may withhold all monies which are or may become due and/or may suspend the work by written order until the Contractor complies with the order.

mechanical condition to meet the requirements of the work and to produce work of satisfactory quality. Equipment used on the project shall not cause injury to the roadway , adjacent property, or other highways.

Contractor are not prescribed in the Contract, the Contractor is free to use any methods or equipment that it demonstrates to the satisfaction of the Engineer will accomplish the work in conformity with the requirements of the Contract, and provided they pose no safety risk to the workers, inspection staff, traveling public, or general public.

the use of certain methods and equipment , those methods and equipment shall be used unless otherwise authorized by the Engineer.

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1-98If the Contractor desires to use a method or type of equipment other than those specified in the

Contract, the Contractor shall request approval from the Engineer to do so. The request shall be in writing and shall include a full description of the methods and equipment proposed to be used and an explanation of the r easons for desiring to make the change. If approval is given, it will be on the condition that the Contractor will be fully responsible for producing work in conformity with Contract requirements. If, after trial use of the substituted methods or equipme nt, the Engineer determines that the work produced does not meet Contract requirements, the Contractor shall discontinue the use of the substitute method or equipment and shall complete the remaining work with the specified methods and equipment . The Contr actor shall remove the deficient work and replace it with work of specified quality or take such other corrective action as the Engineer may direct. No change will be made in basis of payment for the construction items involved or in Contract time as a res ult of authorizing a change in methods or equipment . The changing of methods and equipment prescribed shall not be justification for a claim.

108.06LABOR AND RENTAL PREFERENCE . In accordance with 19 V.S.A . § 17, the Contractor shall

give preference to Vermont labor and trucks owned in Vermont. This requirement shall not apply to any Contract , or any part thereof, financed with federal funds.

108.07MEETING PERSONNEL REQUIREMENTS . Contractors are encouraged to use the services of

the local offices of the Vermont Department of Labor to meet their personnel requirements. Recruitment of workers in all occupations and skills is conducted by the Vermont Department of Labor, initially from

the immediate labor market areas, and when workers with the required skills are not available locally,

through the nationwide workforce clearance system of the U.S. Department of Labor.

Available workers may be obtained from the Vermont Department of Labor and from the Agency’s Office

of Civil Rights and Labor Compliance.

108.08TEMPORARY SUSPENSION OF WORK

necessary on account of:

satisfactory work, or to perform one or more provisions of the Contract.

dangerous, harmful to the environment, or in violation of a permit or other authorization

for the project.

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th to March 31 st , inclusive, no construction work of any kind

shall be done except by written permission from the Regional Construction Engineer, and only

under such conditions as specified therein. Permission will only be granted for work which will

result in a direct benefit to the state or the traveling public, unless otherwise stated in the Contract.

Items which may be considered as a benefit include, but are not limited to, shorter Contract

duration, a cost savings, increased safety for the traveling public, and an ability to ensure the

quality of work. The Contractor shall request permission in writing, detailing what Contract items

may be affected, a schedule of work, and the benefits to the state or traveling public. The Agency

reserves the right, at its sole discretion, to rescind permission to work during the seasonal closure

period. The rescission will not be justification for additional compensation.

seasonal closure period shall be as specified in Subsection 104.04.

of the Engineer. Such permission will not be unreasonably withheld.

Contract shall continue.

108.09SUSPENSIONS OF WORK ORDERED BY THE ENGINEER

the work is suspended or delayed by the Engineer for an unreasonable period of time (not originally

anticipated, customary, or inherent to the construction industry) and the Contractor believes that

additional compensation and/or Contract time is due as a result of such suspension or delay, the

Contractor shall submit to the Engineer in writing a request for adjustment within 7 calendar days

of receipt of the notice to resume work. The request shall set forth the reasons and support for such

adjustment.

Contractor’s request in accordance with Subsection 108.16. If the Engineer agrees that the cost

and/or time required for the performance of the Contract has increased as a result of the

suspension/delay and the suspension/delay was caused by conditions beyond the control of and

not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused

by weather, the Engineer will make an adjustment (excluding profit) and modify the Contract in

writing accordingly. The Contractor will be notified of the Engineer’s determination of whether or

not an adjustment of the Contract is warranted.

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Contractor has submitted the request for adjustment within the time prescribed.

allowed under this subsection to the extent that performance would have been suspended or

delayed by any other cause, or for which an adjustment is provided or excluded under any other

term or condition of the Contract.

108.10INCENTIVE AND DISINCENTIVE PERIODS. When specified in the Contract, the Contractor

will be required to complete certain identified work during an incentive, disincentive, or incentive/

disincentive period, hereinafter referred to as an I/D period. The intent of this period is to incentivize the

Contractor to complete the identified work as rapidly as possible. The following requirements will apply

to the I/D period.

shall submit a letter to the Engineer for review and approval specifying the begin construction date

for the I/D period. This letter shall be received by the Engineer a minimum of 14 calendar days

prior to the begin construction date specified in the letter.

The I/D period is a fixed date and will not be changed for any reason whatsoever unless done so

by the Chief Engineer, and then only under extreme conditions as determined by, and at the sole

discretion of, the Chief Engineer.

superintendent, Contractor’s project manager, the Engineer, the Project Manager, Public Outreach

Coordinator (if applicable), municipal officials, the local emergency service providers, Vermont

State Police, and the local Regional Planning Commission to discuss durations of work, types of

night work, work sequencing, and other issues. The Contractor shall be responsible for setting this

meeting up and making appropriate contacts. This meeting shall be held a minimum of 14 calendar

days prior to the start of the I/D period.

When specified in the Contract, there shall also be a public information meeting prior to the start

of the I/D period. The Contractor’s superintendent and Contractor’s project manager shall be

available to attend. The Contractor shall be prepared to discuss the construction schedule with the

public. The Public Outreach Coordinator will be responsible for setting this meeting up and making

appropriate contacts. This meeting shall be held a minimum of 21 calendar days prior to the start

of the I/D period.

Weekly meetings between the Contractor, Engineer, and other pertinent parties as determined by

the Engineer shall be held during the I/D period to discuss the project progress and future

construction activities, and current CPM progress schedules and narratives.

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the I/D period.

All prefabricated concrete elements, or other components as specified in the Contract, required to

complete the identified work shall be authorized for shipment prior to the start of the I/D period.

that the actual amounts used in the construction of a project may vary from the estimate will not

be a basis or cause for changing any of the conditions for I/D.

The Agency recognizes that additional work beyond the work indicated in the Plans is always

possible in any Contract. The Agency is willing to pay for necessary additional work in accordance

with the terms and requirements of the Contract, however, the Contractor shall absorb any resulting

construction time within the original project and CPM schedules, and there will be no adjustments

or changes to the I/D dates or conditions.

108.11DETERMINATION OF EXTENSION OF CONTRACT TIME FOR COMPLETION

number of days for completion is specified in the Contract, and when the Contractor fails to

substantially complete the work within the Contract time specified due to unforeseen conditions

beyond the control and without fault or negligence of the Contractor, the Contractor will be

credited additional Contract completion time on a full day basis as provided in Subsection

(b). The Finals Engineer will submit to the Contractor a Request for Extension of Time form

containing a preliminary review of extension of time in accordance with Subsection 108.11(b). If

the Contractor concurs with the preliminary review, the Contractor shall sign and return the form

to the Finals Engineer within 60 calendar days of the date of presentation (the “60 calendar day

period”).

If the Contractor disputes the preliminary review, the Contractor shall notify the Finals Engineer

within the 60 calendar day period and provide supportive documentation regarding the dispute.

Upon notification of a dispute, the Construction Section will research and provide a decision to

the Contractor. The Contractor may appeal this decision within 30 calendar days to the Chief

Engineer as provided in Subsection 105.04. Notwithstanding Subsection 105.04 and Subsection

105.20, failure to notify the Finals Engineer of a dispute within the 60 calendar day period shall

constitute concurrence with the preliminary review and be deemed a waiver of the Contractor’s

right to appeal, in which case the extension of time will be processed without the Contractor’s

signature.

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The Contractor may request an extension of time from the Engineer during the course of the

project.

No extension of time will be required when a substantial completion date is established prior to

the Contract completion date, as modified by applicable change orders.

suspended through no fault of the Contractor, a Contract completion date extension may be made

by the Engineer in the following circumstances:

Proceed or the Notice to Proceed.

progress of the work.

impact which could not generally be anticipated by the Contractor, either during the

bidding process or during construction, and catastrophic weather events such as floods,

droughts, fires, hurricanes, tornadoes, earthquakes, or landslides.

be extended by an amount equal to the elapsed time between effective dates of order to

suspend and order to resume.

are not attributable to the Contractor.

permanent injunctions, or judgments that are not attributable to the Contractor.

st to November 15 th , inclusive, on which the weather or the condition

of the ground caused suspension of the work.

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the time the Contract was entered.

Engineer documentary proof that a diligent effort has been made to obtain the materials

from all known sources and the inability to obtain the materials when originally planned

did in fact cause a delay in final completion of the entire work, and the delay could not be

avoided by revising the sequence of the Contractor’s operations. The Contractor shall

notify the Engineer in writing of the causes of delay caused by material shortages no later

than 15 calendar days from the beginning of any such delay and not thereafter.

an extension of time.

108.12FAILURE TO COMPLETE WORK ON TIME

plan its progress schedule and progress the work in order to complete the Contract on or before

the completion date or duration set forth in the Contract.

or more interim completion dates and specify elements of the work which must be completed by

such dates. For each working day following the interim completion date that the specified work is

not completed, liquidated damages of the amount specified in the Notice to Bidders will be

assessed. This amount will be specified as a percentage of the applicable daily charge per working

day of delay identified in Table 108.12A.

These liquidated damages are separate from, and will be imposed in addition to, liquidated

damages which may be imposed for failure to complete the Contract on time.

The provisions of Subsection 108.11 will not apply to the interim completion date unless otherwise

authorized by the Agency.

which any work remains incomplete after the completion date or duration specified in the Contract

for completion of the work involved, there shall be deducted from any monies due the Contractor

the amount shown in Table 108.12A, unless otherwise specified in the Contract. The deduction is

not a penalty but is liquidated damages to defray the cost to the Agency to administer the Contract,

including but not limited to the cost of engineering, inspection, supervision, inconvenience to the

public, obstruction of traffic, and interference with business. Due account will be provided for any

adjustment of the Contract time for completion of the work under the provisions of Subsection

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TABLE 108.12A – DAILY LIQUIDATED DAMAGES CHARGE PER WORKING DAY OF DELAY

Original Contract Amount Daily Charge per

Working Day of Delay From More Than To and Including

$0 $500,000 $1,900

$500,000 $1,000,000 $2,000

$1,000,000 $1,500,000 $2,100

$1,500,000 $3,000,000 $2,400

$3,000,000 $5,000,000 $2,800

$5,000,000 $10,000,000 $3,800

$10,000,000 $15,000,000 $4,800

$15,000,000 -- $5,800

Should the Contractor elect to work on Saturdays, Sundays, holidays, or days from November 16 th

to March 31 st , inclusive, after the Contract completion date, the Contractor will be charged

liquidated damages for such days worked.

the time fixed for its completion or after the date to which the time for completion may have been

extended shall not operate as a waiver on the part of the Agency of any of its rights under the

Contract.

monies due or that may become due the Contractor be less than the amount of ascertained

liquidated damages, the Contractor and the Contractor’s surety shall be liable to the state for the

deficiency.

of a substantial completion date.

108.13TERMINATION OF THE CONTRACT

Secretary will give notice in writing to the Contractor and the Contractor’s surety of delay, neglect,

or default if the Contractor:

Proceed.

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equipment or with sufficient materials to ensure the prompt completion of said work.

remove materials or to redo or replace work rejected as defective and unsuitable.

so.

calendar days.

acceptable and timely manner.

accordance with the notice within 10 calendar days of being issued the notice, the Agency may,

without violating the Contract, terminate the Contract by taking performance of the work out of

the hands of the Contractor.

The Agency may appropriate and use any or all materials and equipment on the project as are

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 discretion of the

Engineer, will be required for the completion of the Contract in an acceptable manner and in the

best interest of the Agency.

completing the work under Contract, shall be deducted from any monies due or which may become

due the Contractor. If the expense incurred by the Agency is less than the sum which would have

been payable under the Contract had it been completed by the Contractor, the Contractor shall be

entitled to receive the difference; if the expense exceeds the sum which would have been payable

under the Contract, the Contractor and the Contractor’s surety shall be liable and shall pay to the

Agency the amount of the excess.

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108.14TERMINATION OF THE CONTRACT FOR CONVENIENCE

thereof when such termination would be in the best interest of the Agency.

Any such termination shall be by delivery to the Contractor an Order of Termination specifying

the termination is for the convenience of the Agency, the extent to which performance of work

under the Contract is terminated, and the effective date of the termination.

In the event such termination occurs, without fault and for reasons beyond the control of the

Contractor, all completed items of work as of the date of termination will be paid for at the Contract

bid price. Payment for partially completed work will be made either at agreed prices or by force

account methods provided elsewhere in the Contract.

Pursuant to Subsection 109.07, no compensation will be allowed for items eliminated from the

Contract.

Upon request the Contractor shall make all Contract-related records available to the Agency.

by the Engineer, the Contractor shall immediately proceed to:

date specified.

may be necessary for completion of such portions of the work under the Contract as are

not terminated.

except as may be necessary for completion of such portions of the work under the Contract

as are not terminated.

materials in its possession or in transit to the project.

and other property which, if the Contract had been completed, would be required to be

furnished to the Agency in electronic format.

preservation of the property related to the Contract which is in the possession of the

Contractor and in which the Agency has or may acquire any interest.

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shall submit any claim for additional damages or costs not covered herein or elsewhere in the

Contract within 60 calendar days of the effective termination date, and not thereafter.

Should the Contractor fail to submit a claim within the 60 calendar day period, the Agency may,

at its sole discretion, based on information available to it, determine what, if any, compensation is

due the Contractor and pay the Contractor the determined amount.

Subsection 108.14(b)(4) that have been obtained by the Contractor for the Contract but which have

not been incorporated into the work may be purchased from the Contractor at actual cost and

delivered to a location prescribed by the Engineer or otherwise disposed of as mutually agreed.

Payment for materials included in the material inventory chosen to be purchased by the Agency

will be made at actual cost delivered to the project or storage site designated by the Engineer,

including transportation charges, to which 10% overhead and profit will be added.

for equipment owned by the Contractor, the Contractor will be entitled to recover

equipment rates based on the Contractor’s internal ownership costs. Recovery for idle

equipment time shall not be based on published rental rates.

for equipment rented or leased by the Contractor, the Contractor shall be entitled to recover

the lesser of the actual rental costs or fair market rental costs, and the amount shall not

exceed 30 calendar days rental.

Contractor owned equipment or leased/rented equipment, following termination of the

Contract pursuant to this subsection are limited to a maximum of 30 calendar days and may

not include any operating expenses.

purpose of reaching a settlement equitable to both the Contractor and the Agency. Settlement shall

be based on actual costs incurred by the Contractor plus overhead and profit as specified in

Subsection 109.06. Consequential damages, loss of overhead, loss of overhead contribution of any

kind, and/or loss of anticipated profits on work not performed shall not be included in the

Contractor’s claim and will not be considered, allowed, or included as part of any settlement.

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determination of an equitable settlement.

relieve the Contractor of its contractual responsibilities for work completed and shall not relieve

the Contractor’s surety of its obligation for and concerning any just claim arising out of the work

performed.

108.15TERMINATION OF THE CONTRACTOR’S RESPONSIBILITY

completely performed by the Contractor, all parts of the work have been approved and accepted

by the Engineer, and all Contract requirements complied with, the Contractor will then be released

from further obligations except as set forth in the bonds provided, and the Agency will provide the

Contractor with a Completion and Acceptance Memorandum.

separate projects or as separate locations on a single project, the Agency may accept the work at

any location when the work at that location is completely finished and all responsible parties agree

to acceptance in the same manner as a normal final inspection.

If a portion of the Contract is accepted by the Engineer, and all Contract requirements related

thereto are complied with, the Contractor shall remove all construction warning signs from that

portion and the Contractor will then be released from further obligations as to that portion except

as set forth in the bonds provided. If substantial completion of the work is accomplished, but

additional work is required to achieve final acceptance, the Agency may accept the work under the

Contract with exceptions and/or reservations.

108.16COMPENSABLE AND NON-COMPENSABLE DELAYS

specifically enumerated in this subsection only if the delays and other time-related issues result

from one or more of the following:

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Subsection 108.16(a):

work performed associated with the delay and properly documented and maintained

pursuant to that subsection.

office rental, utilities, and routine cleaning, plus 5% for Contract supervision, overhead,

and profit.

Subsection 108.14.

in the dispute.

manner.

or the interim completion date but may not allow additional compensation except for those

situations specifically enumerated in Subsection 108.16(a).

adequate work force and as scheduled for the full time allowed will be cause for denial of a time

extension that might otherwise be allowed.

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1-110SECTION 109 – MEASUREMENT AND PAYMENT

109.01MEASUREMENT OF QUANTITIES

U.S. customary units. The measurement and determination of the number of units of each pay item will be made as specified in this section and as are specifically described under the Method of Measurement and Basis of Payment subsections for each item. The abbreviations listed i n Table 109.01A will be used on the quantity sheet to represent the indicated pay unit. TABLE 109.01A – PAY UNIT ABBREVIATIONS Abbreviation Pay Unit Exact Conversion ACRE Acre 43,560 square feet CF Cubic foot 1,728 cubic inches CWT Hundredweight 100 pounds CY Cubic yard 27 cubic feet DAY Day 24 hours DL Dollar -- EA Each -- GAL Gallon 231 cubic inches HR Hour -- IN Inch -- LB Pound 16 ounces LF Linear foot 12 inches LS Lump sum -- MFBM Thousand feet board measure 83-1/3 cubic feet or 144,000 cubic inches MGAL Thousand gallons -- MILE Mile 5,280 feet or 1,760 yards MLF Thousand linear feet -- MSY Thousand square yards 9,000 square feet SF Square foot 144 square inches SY Square yard 9 square feet TON Ton 2,000 pounds