1-94 SECTION 108 – PROSECUTION AND PROGRESS
108.01 Subletting Or Assignment of The Contract .
a.General . The Contractor shall not sublet, assign, sell, transfer, or otherwise dispose 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 subcontract s 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.
b.Performance of the Contract Work . The Contractor shall perform Contract work with its own 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:
1.The cost of material s and manufactured products to be purchased or produced under the Contract shall be included in the amount upon which the 50% requirement is computed.
2.The percentage of subcontract ed work shall be based on the Contract, rather than 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.
3.When a firm sells material s to a Contractor and performs the work of incorporating the material s into the project , these actions must be considered in combination and as constituting a single subcontract .
c.Specialty Items . The cost of specialty items may be deducted from the total Contract price before 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 .
d.Performance Requirements . The Contractor and its subcontract or(s) shall, in the staffing and administration of the C ontract, comply with the following performance requirements: 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 :
a.Select Contract s to be bid .
b.Determine prices to be quoted .
c.Select material suppliers .
d.Hire, fire, supervise, and pay employees .
e.Direct or cause the direction of the management and policies of the firm. The Contractor/ subcontract or shall not broker work for another firm or act as a bidding conduit.
2.Contractor to Furnish Competent Representative , Safety Officer , Others . To ensure that any subcontract ed work is performed in accordance with the Contract requirements, the Contractor shall be required to furnish:
a.A competent, reliable , English -speaking representative employed by the Contractor who has full authority to direct performance of the work in accord ance with the Contract requirements and who is responsible for all construction operation s on the project regardless of who performs the work .
b.A competent, reliable , English -speaking employee designated as the safety officer 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.
c.Such other individuals from the Contractor’s o rganization as the Agency’s Construction Engineer determines are necessary to ensure the performance of the Contract (e.g. supervisory, managerial , and engineering personnel ).
3.Employees on Payroll . The Contractor/ subcontract or is not permitted to place on the payroll the employees of another firm for the purpose of avoiding federal or state regulations or the provisions of the Contract. 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.
108.03 Prosecution and Progress of The Work .
a.Progress Schedule . A progress schedule shall be submitted a minimum of 7 calendar day s prior to 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 operation s 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.
b.Performance of the Work . The work shall be performed from as many points, in as many part s, at times, in a manner, and with sufficient material s, equipment , and labor so as to ensure its completion within the times set forth in the Contract.
c.Resumption of Work After Discontinuance with Consent . Should the performance of the work be discontinued by the Contractor for any reason, the Contractor shall notify the Engineer at least 24 hours before resuming operations.
108.04 LIMITATIONS 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 detour s and to the provis ions 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. 1-97 108.05 CHARACTER OF WORKERS, METHODS, AND EQUIPMENT .
a.General . The Contractor shall at all times employ sufficient labor and equipment to complete the work in the manners and times required by the Contract .
b.Worker Skill and Experience . All workers shall have sufficient skill and experience to properly perform the work assigned to them. Workers engaged in specialty or skilled work shall have sufficient skill, experience , and experience with equip ment required to perform such work properly and satisfactorily.
c.Electrical Work . All electrical work shall be performed by or under the supervision of a licensed 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 .
d.Removal of Workers from Project . Any person employed by the Contractor or a subcontract or 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.
e.Failure to Remove Worker from Project . If the Contractor fails to remove a person or persons as 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.
f.Equipment Sufficiency . All equipment used to perform the work shall be of sufficient size and 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 highway s.
g.Methods and Equi pment Not Prescribed . When the methods and equipment to be used by the 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.
h.Methods and Equipment Prescribed . When the Contract specifies that the work be performed by the use of certain methods and equipment , those methods and equipment shall be used unless otherwise authorized by the Engineer. 1-98 If 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.
108.06 LABOR 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.
108.07 MEETING 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 skill s 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 . Avai lable workers may be obtained from the Vermont Department of Labor and from the Agency’s Office of Civil Rights and Labor Compliance .
108.08 Temporary Suspension of Work .
a.General . Work may be suspended by the Engineer, wholly or in part, for such period or periods as necessary on account of:
1.Unsuitable weather conditions.
2.Failure on the part of the Contractor to carry out an instruction or a written order , to perform satisfactory work , or to perform one or more provisions of the Contract.
3.Any other conditions which, in the judgment of the Engineer, make work impractical, dangerous, harmful to the environment, or in violation of a permit or other authorization for the project . 1-99 (b) Seasonal Closure . From November 16th to March 31st, 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 bene fit 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.
c.Seasonal Closure Procedure . The constru ction procedure prior to closing down the project for the seasonal closure period shall be as specified in Subsection 104.04 .
d.Contractor Suspension of Work . The Contractor shall not suspend the work without the permission of the Engineer. Such permission will not be unreasonably withheld.
e.Contract Applicable . If the work is suspended for any reason, all appropriate requirements of the Contract shall continue.
108.09 Suspensions of Work Ordered By The Engineer .
a.Additional Compensation/Time Request; Time Limit . If the performance of all or any portion of 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 .
b.Evaluation of Request . Upon receipt of the request for adjustment , the Engineer will evaluate the 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 beyo nd the control of and not the fault of the Contractor, its suppliers, or subcontract ors 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 . 1-100 (c) No Adjustment Unless Notice Submitted . No Contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed.
d.No Adjustment if Work Would Have Been Delayed Regardless . No Contract adjustment will be 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.
108.10 INCENTIVE AND DISINCENTIVE PERIODS . When specified in the Contract, the Contractor
will be required to complete certain identified work dur ing 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.
a.Dates . The allowable I/D period dates will be as specified in the Notice to Bidders. The Contractor 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 C hief Engineer, and then only under extreme conditions as determined by, and at the sole discretion of, the Chief Engineer.
b.Meetings . There shall be a pre -I/D period meeting held on site with the Contractor’s 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 Contr act, 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 Co ntractor, 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. 1-101 (c) Identified Work . All work identified in the Notice to Bidders shall be completed before the end of 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 shipme nt prior to the start of the I/D period.
d.Pay Schedule . The pay schedule will be as specified in the Notice to Bidders.
e.Underruns and Overruns . The Contract indicates an estimated quantity for each pay item. The fact 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 recogni zes 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 abso rb 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.
f.Payment . Payment will be made as specified in Section 199 .
108.11 Determination of Extension of Contract Time for Completion .
a.General; Request for Extension of Contract Completion Date . When a definite date or a fixed number of days for completion is specified in the Contract, and when the Contractor fails to substantially complete t he 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 108.11(b). The Finals Engineer will submit to the Contractor a Request for Extension of Time form containing a preliminary review of extension of ti me 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 day s 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 r esearch and provide a decision to the Contractor. The Contractor may appeal this decision within 30 calendar day s to the Chief Engineer as provided in Subsection 105.0 4. Notwithstanding Subsection 105.0 4 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. 1-102 The Contractor may request an exte nsion 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 .
b.Determination of Contract Completion Date Extension . Whenever the work is delayed or suspended through no fault of the Contractor, a Contract completion date extension may be made by the Engineer in the following circumstances:
1.Delay by the Agency in awarding the Contract and/or in issuance of the Authorization to Proceed or the Notice to Proceed.
2.Federal or state laws passed subsequent to the date of the Contract adversely affecting progress of the work .
3.Acts of God, including but not limited to unusually severe storms of extended duration or impact which could not generally be anticipated by the Contractor, either during the bidding p rocess or during construction, and catastrophic weather events such as floods, droughts, fires, hurricanes, tornadoes, earthquakes, or landslides.
4.Suspension of work by order of the Engineer. In such cases, the time for completion will be extended by an amount equal to the elapsed time between effective dates of order to suspend and order to resume.
5.Differing site conditions pursuant to Subsection 104.08 .
6.Significant changes in the character of the work pursuant to Subsection 109.04 .
7.Extra work ordered by the Engineer pursuant to Subsection 104.03 .
8.Delays in the issuance of permits, approvals, or other government regulatory action that are not attributable to the Contractor.
9.Court orders, including but not limited to temporary restraining orders, preliminary and permanent injunctions, or judgments that are not attributable to the Contractor.
10.Industry -wide labor unrest.
11.The days from April 1st to November 15th, inclusive, on which the weather or the condition of the gro und caused suspension of the work . 1-103 (12) Industry -wide material or supply shortages not reasonably anticipated by the Contractor at the time the Contract was entered.
13.Delays caused by a shortage of material s, but only when the Contractor furnishes to the Engineer documentary proof that a diligent effort has been made to obtain the material s from all known sources and the inability to obtain the material s 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 Cont ractor ’s operations. The Contractor shall notify the Engineer in writing of the causes of delay caused by material shortages no later than 15 calendar day s from the beginning of any such delay and not thereafter.
14.Any other conditions which in the opinion of the Chief Engineer warrant consideration for an extension of time.
108.12 Failure To Complete Work On Time .
a.Time as an Essential Element . Time is an essential element of the Contract . The Contractor shall 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.
b.Liquidated Damages for Failure to Meet Interim Completion Date . The Contract may identify one 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 specifi ed 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 liquid ated 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.
c.Liquidated Damages for Failure to Meet Contract Completion Date . For each working day on 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 damage s 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 108.11. 1-104 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, holiday s, or days from November 16th to March 31st, inclusive, after the Contract completion date , the Contractor will be charged liquidated damages for such days worked.
d.No Waiver . Permitting the Contractor to continue to finish the work or any part of the work after 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.
e.Liability for Liquidated Damages . The Contractor covenants and agrees that should the amount of 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.
f.Liquidated Damages Cutoff Date . No liquidated damages will be charged after the establishment of a substantial completion date .
108.13 Termination of The Contract .
a.Notice . Upon written notice from the Engineer or other proof satisfactory to the Secretary, the Secretary will give notice in writing to the Contractor and the Contractor’s surety of delay, neglect, or default if the Contractor:
1.Fails to begin the work under the Contract within the time specified in the Notice to Proceed . 1-105 (2) In the opinion of the Engineer, fails to perform the work with sufficient workers and equipment or with sufficient material s to ensure the prompt completio n of said work .
3.In the opinion of the Engineer, performs the work unsuitably or neglects or refuses to remove material s or to redo or replace work rejected as defective and unsuitable .
4.Discontinues the prosecution of the work without the authorizat ion of the Engineer .
5.Fails to resume work that has been discontinued within a reasonable time after notice to do so.
6.Becomes insolvent, is declared bankrupt, or commits any act of bankruptcy or insolvency .
7.Allows any final judgment to stand aga inst the Contractor unsatisfied for a period of 10 calendar day s.
8.Makes an assignment for the benefit of creditors .
9.In the opinion of the Engineer, fails, for any cause whatsoever, to carry on the work in an acceptable and timely manner.
b.Failure of Contractor to Proceed . If the Contractor or the Contractor’s surety does not proceed in accordance with the notice withi n 10 calendar day s 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 material s and equipm ent 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 co mpletion of the Contract in an acceptable manner and in the best interest of the Agency.
c.Agency’s Costs . All costs and charges incurred by the Agency, together with the costs of 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 woul d 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. 1-106 108.14 TERMINATION OF THE CONTRACT FOR CONVENIENCE .
a.General . The Agency may, by written order to the Contractor, terminate the Contract or any portion 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.
b.Contractor Obligations . After receipt of the Order of Termination and except as otherwise directed by the Engineer, the Contractor shall immediately proceed to:
1.To the extent specified in the Order of Termination, stop work under the Contract on the date specified.
2.Place no further orders or subcontract s for material s, services, and/or facilities except as may be necessary for completion of such portions of the work under the Contract as are not terminated.
3.Terminate and cancel all orders or subcontract s for material s, services, and/or facilities except as may be necessary for completion of such portions of the work under the Contract as are not terminated.
4.Submit to the Engineer a material inventory list, certified as to quantity and quality of material s in its possession or in transit to the project .
5.Tran sfer to the Agency all completed or partially completed plans, drawings, information, and other property which, if the Contract had been completed, would be required to be furnished to the Agency in electronic format.
6.Take other action as may be necess ary or as directed by the Engineer for the protection and 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. 1-107 (c) Claim by Contractor . After receipt of t he Order of Termination from the Agency, the Contractor shall submit any claim for additional damages or costs not covered herein or elsewhere in the Contract within 60 calendar day s of the effective termination date, and not thereafter. Should the Contrac tor 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.
d.Materia ls. At the option of the Agency, acceptable material s included in the material inventory in 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 material s included in the material inven tory 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.
e.Idle Equipment . Idle equipment time claimed by the Contactor will be paid as follows:
1.Contractor -Owned Equipment . For the portion of any claim relating to idle equipment time 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.
2.Rented or Leased Equipment . For the portion of any claim relating to idle equipment time 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 calend ar day s rental.
3.Limitations on Recovery for Idle Equipment . Claims for idle equipment time, whether for Contractor owned equipment or leased/rented equipment , following termination of the Contract pursuant to this subsection are limited to a maximum of 30 calendar day s and may not include any operating expenses.
f.Negotiation; No Anticipated Profit . Negotiation to settle a timely claim shall be for the sole 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. 1-108 (g) Records . The Contractor shall make available to the Agency all cost records relevant to a determination of an equitable settlement.
h.Contractual Responsibilities Continue . Termination of the Contract, or portion thereof, shall not relieve the Contractor of its contractual responsib ilities 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.
108.15 Termination of The Contractor’S Responsibility .
a.Completion and Acceptance . Whenever the project s provided for by the Contract have been 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.
b.Limited Completion and Acceptance . If the Contract includes work at more than one locat ion as separate project s 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.
108.16 Compensable and Non -Compensable Delays .
a.Compensable Delays . The Engineer may allow additional compensation for the time -related issues specifically enumerated in this subsection only if the delays and other time -related issues result from one or more of the following :
1.Differing site conditions pursuant to Subsection 104.08 .
2.Significant changes in the character of the work pursuant to Subsection 109.04 .
3.Suspensions of work ordered by the Engineer pursuant to Subsection 108. 09. 1-109 (b) Recoverable Costs . Only the following costs may be recovered for compensable delay s under Subsection 108. 16(a):
1.Labor, Materials, and Equipment . The costs provided for in Subsection 109.06 for actual work performed associated with the delay and properly documented and maintained pursuant to that subsection .
2.Field Office Overhead . The actual cost paid by the Contractor to third parties for field office rental, utilities, and routine cleaning, plus 5% for Contract supervision, overhead, and profit.
3.Home Office Overhead . Unabsorbed home office overhead is only recoverable pursuant to Subsection 108. 14.
c.Non-Recoverable Costs . The following costs are not recoverable under the Contract:
1.Home office overhead in excess of that provided in Subsection 109.06 .
2.Loss of profit in excess of that provided in Subsection 109.06 .
3.Loss of productivity and/or inefficiencies in labor and equipment .
4.Consequential damages, such as loss of interest or investment with respect to funds at issue in the dispute.
5.Attorneys’ fees, mediation expenses, claims analysis, or preparation expenses .
6.Any other costs attributable to the Contractor’s failure to advance the work in a reasonable manner.
d.Non-Compensable Delays . The Engineer may allow an extension of the Contract completion date or the interim completion date but may not allow additional compensation except for those situations specifically enumerated in Subsection 108. 16(a).
e.Failure to Perform Adequately . Failure to perform the work continuously and effectively with an adequate work force and as schedule d for the full time allowed will be cause for denial of a time extension that might otherwise be allowed. 1-110 SECTION 109 – MEASUREMENT AND PAYMENT
109.01 Measurement of Quantities .
a.General . All work completed under the Contract will be measured by the Engineer according to
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
Source: Vermont Standard Specifications for Construction, 2024 Edition. Pages 110–125 of 1,380.