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1-04 Scope of the Work1-04 Scope of the Work
1-04.1 Intent of the Contract
The intent of the Contract is to prescribe a complete Work. Omissions from the Contract of details of Work that are necessary to carry out the intent of the Contract shall not relieve the Contractor from performing the omitted Work.
1-04.1(1) Bid Items Included in the Proposal
The Contractor shall provide all labor, materials, tools, equipment, transportation, supplies, and incidentals required to complete all Work for the items included in the Proposal.
1-04.1(2) Bid Items Not Included in the Proposal
When the Contract specifies Work that has no Bid item, and the Work is not specified as being included with or incidental to other Bid items, an equitable adjustment will be made in accordance with Section 1-04.4 unless that Work is customarily considered as incidental to other items.
1-04.2 Coordination of Contract Documents, Plans, Special Provisions,
Specifications, and Addenda The complete Contract includes these parts: the Contract Form, Bidder’s completed Proposal Form, Contract Plans, Contract Provisions, Standard Specifications, Standard Plans , Addenda, various certifications and affidavits, supplemental agreements, change orders, and subsurface boring logs (if any). These parts complement each other in describing a complete Work. Any requirement in one part binds as if stated in all parts. The Contractor shall provide all Work or materials clearly implied in the Contract even if the Contract does not mention it specifically. Any inconsistency in the parts of the Contract shall be resolved by following this order of precedence (e.g., 1 presiding over 2, 3, 4, 5, and 6; 2 presiding over 3, 4, 5, and 6; and so forth):
1.Addenda,
2.Proposal Form,
3.Special Provisions,
4.Contract Plans,
5.Standard Specifications, and
6.Standard Plans . On the Contract Plans, Working Drawings, and Standard Plans , figured dimensions shall take precedence over scaled dimensions. This order of precedence shall not apply when Work is required by one part of the Contract but omitted from another part or parts of the Contract. The Work required in one part must be furnished even if not mentioned in other parts of the Contract. Whenever reference is made in these Specifications or the Special Provisions to codes, rules, specifications, and standards, the reference shall be construed to mean the code, rule, specification, or standard that is in effect on the Bid advertisement date, unless otherwise stated or as required by law. If any part of the Contract requires Work that does not include a description for how the Work is to be performed, the Work shall be performed in accordance with standard trade practice(s). For purposes of the Contract, a standard trade practice is one having such regularity of observance in the trade as to justify an expectation that it will be observed by the Contractor in doing the Work. In case of ambiguities or disputes over interpreting the Contract, the Engineer’s decision will be final as provided in Section 1-05.1 . M 41-10 Page 1-23 Scope of the Work 1-041-04.3 Reference Information Reference Information provided to the Contractor is not part of the Contract. The Contracting Agency does not guarantee the accuracy of the Reference Information and is not responsible for the content of the Reference Information in any manner. Any use of Reference Information by the Contractor is done solely at the Contractor’s risk.
1-04.4 Changes
The Engineer reserves the right to make, at any time during the Work, such changes in quantities and such alterations in the Work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the Contract nor release the Surety, and the Contractor agrees to perform the Work as altered. Among others, these changes and alterations may include:
1.Deleting any part of the Work.
2.Increasing or decreasing quantities.
3.Altering Specifications, designs, or both.
4.Altering the way the Work is to be done.
5.Adding new Work.
6.Altering facilities, equipment, materials, services, or sites, provided by the Contracting Agency.
7.Ordering the Contractor to speed up or delay the Work. The Engineer will issue a written change order for changes unless the remainder of this section provides otherwise. If the alterations or changes in quantities significantly change the character of the Work under the Contract, whether or not changed by any such different quantities or alterations, an adjustment, excluding loss of anticipated profits, will be made to the Contract. The basis for the adjustment shall be agreed upon prior to the performance of the Work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the Engineer may determine to be fair and equitable. If the alterations or changes in quantities do not significantly change the character of the Work to be performed under the Contract, the altered Work will be paid for as provided elsewhere in the Contract. The term significant change shall be construed to apply only to the following circumstances:
A.When the character of the Work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or
B.When an item of Work, as defined elsewhere in the Contract, is increased in excess of 125 percent or decreased below 75 percent of the original Contract quantity. For the purpose of this Section, an item of Work will be defined as any item that qualifies for adjustment under the provisions of Section 1-04.6 . For item 1, an equitable adjustment for deleted Work will be made as provided in Section 1-09. 4. For item 2, if the actual quantity of an item, exclusive of added or deleted amounts included in agreed change orders, increases or decreases by more than 25 percent from the original Plan quantity, the unit Contract prices for that item may be adjusted in accordance with Section 1-04.6 . For all changes except item 1 (deleted Work) or item 2 (increasing or decreasing quantities), the Engineer will determine if the change should be paid for at unit Contract price(s). If the Engineer determines that the change increased or decreased the Contractor’s costs or time to do any of the Work including unchanged Work, the Engineer will make an equitable adjustment to the Contract. The equitable adjustment Page 1-24 M 41-10
1-04 Scope of the Workwill be by agreement with the Contractor. However, if the parties are unable to agree,
the Engineer will determine the amount of the equitable adjustment in accordance with Section 1-09.4 and adjust the time as the Engineer deems appropriate. Extensions of time will be evaluated in accordance with Section 1-08.8 . The Engineer’s decision concerning equitable adjustment and extension of time shall be final as provided in Section 1-05.1 . The Contractor shall proceed with the Work upon receiving:
1.A written change order approved by the Engineer, or
2.An oral order from the Engineer before receiving the written change order. Within 14 calendar days of delivery of the change order the contractor shall endorse and return the change order, request an extension of time for endorsement or respond in accordance with Section 1-04.5 . The Contracting Agency may unilaterally process the change order if the Contractor fails to comply with these requirements or when the Contractor protests in accordance with Section 1-04.5. Changes normally noted on field stakes or variations from estimated quantities, except as provided in subparagraph A or B above, will not require a written change order. These changes shall be made at the unit prices that apply. The Contractor shall respond immediately to changes shown on field stakes without waiting for further notice. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) not responding within the allotted time, or (3) not protesting in accordance with Section
1-04.5 A change order that is not protested in accordance with Section 1-04.5 shall be
full payment and final settlement of all claims for Contract time and for all costs of any kind, including costs of delays, related to Work either covered or affected by the change. The Contractor shall obtain written consent of the Surety or Sureties if the Engineer requests such consent. Change Orders will be transmitted electronically to the Contractor for signature. The Contractor shall apply all signatures electronically using the software provided by the Contracting Agency. Within 21 days of execution of the Contract, the Contractor shall submit a Type 1 Working Drawing consisting of the names, email addresses, and text- message capable phone numbers for the authorized change order signers and shall bear the name, phone number and email of the officer providing this authorization. Delegation of authority to sign Change Orders shall be by the officer authorized to sign the Contract in accordance with Section 1-02.1 .
1-04.4(1) Minor Changes
Payments or credits for changes amounting to $25,000 or less may be made under the Bid item “Minor Change”. At the discretion of the Contracting Agency, this procedure for Minor Changes may be used in lieu of the more formal procedure as outlined in Section
1-04.4 , Changes.
The Contractor will be provided a copy of the completed order for Minor Change. The agreement for the Minor Change will be documented by signature of the Contractor, or notation of verbal agreement. If the Contractor is in disagreement with anything required by the order for Minor Change, the Contractor may protest the order as provided in Payments or credits will be determined in accordance with Section 1-09.4 . For the purpose of providing a common Proposal for all Bidders, the Contracting Agency has entered an amount for “Minor Change” in the Proposal to become a part of the total Bid by the Contractor. M 41-10 Page 1-25 Scope of the Work 1-041-04.4(2) Value Engineering Change Proposal (VECP)
1-04.4(2)A General
A VECP is a Contractor proposed change to the Contract Provisions that will accomplish the project’s functional requirements in a manner that is equal to or better than the requirements in the Contract. The VECP may be: (1) at a less cost or time, or (2) either no cost savings or a minor increase in cost with a reduction in Contract time. The net savings or added costs to the Contract Work are shared by the Contractor and Contracting Agency. The Contractor may submit a VECP for changing the Plans, Specifications, or other requirements of the Contract. The Engineer’s decision to accept or reject all or part of the proposal is final and not subject to arbitration under the arbitration clause or otherwise subject to litigation. The VECP shall meet all of the following:
1.Not adversely affect the long term life cycle costs.
2.Not adversely impact the ability to perform maintenance.
3.Provide the required safety and appearance.
4.Provide substitution for deleted or reduced Condition of Award Work, Apprentice Utilization and Training. VECPs that provide a time reduction shall meet the following requirements:
1.Time saving is a direct result of the VECP.
2.Liquidated damages penalties are not used to calculate savings.
3.Administrative/overhead cost savings experienced by either the Contractor or Contracting Agency as a result of time reduction accrue to each party and are not used to calculate savings.
1-04.4(2)B VECP Savings
1-04.4(2)B1 Proposal Savings
The incentive payment to the Contractor shall be one-half of the net savings of the proposal calculated as follows:
1.(gross cost of deleted work) – (gross cost of added work) = (gross savings)
2.(gross savings) – (Contractor’s engineering costs) – (Contracting Agency’s costs) = (net savings)
3.(net savings) / 2 = (incentive pay) The Contracting Agency’s costs shall be the actual consultant costs billed to the Contracting Agency and in-house costs. Costs for personnel assigned to the Engineer’s office shall not be included.
1-04.4(2)B2 Added Costs to Achieve Time Savings
The cost to achieve the time savings shall be calculated as follows:
1.(cost of added work) + (Contractor’s engineering costs - Contracting Agency’s engineering costs) = (cost to achieve time savings)
2.(cost to achieve time savings) / 2 = (Contracting Agency’s share of added cost) If the timesaving proposal also involves deleting work and, as a result, creates a savings for the Contracting Agency, then the Contractor shall also receive one-half of the savings realized through the deletion. Page 1-26 M 41-10
1-04 Scope of the Work1-04.4(2)C VECP Approval
1-04.4(2)C1 Concept Approval
The Contractor shall submit a written proposal to the Engineer for consideration. The proposal shall contain the following information:
1.An explanation outlining the benefit provided by the change(s).
2.A narrative description of the proposed change(s). If applicable, the discussion shall include a demonstration of functional equivalency or a description of how the proposal meets the original contract scope of work.
3.A cost discussion estimating the net savings. Savings estimates will generally follow the outline below under the section, “Proposal Savings”.
4.A statement providing the Contracting Agency with the right to use all or any part of the proposal on future projects without future obligation or compensation.
5.A statement acknowledging and agreeing that the Engineer’s decision to accept or reject all or part of the proposal is final and not subject to arbitration under the arbitration clause or otherwise be subject to claims or disputes.
6.A statement giving the dates the Engineer must make a decision to accept or reject the conceptual proposal, the date that approval to proceed must be received, and the date the work must begin in order to not delay the contract. If the Contracting Agency does not approve the VECP by the date specified by the Contractor in their proposal the VECP will be deemed rejected.
7.The submittal will include an analysis on other Work that may have costs that changed as a result of the VECP. Traffic control and erosion control shall both be included in addition to other impacted Work. After review of the proposal, the Engineer will respond in writing with acceptance or rejection of the concept. This acceptance shall not be construed as authority to proceed with changes to contract work. Concept approval allows the Contractor to proceed with the Work needed to develop final plans and other information to receive formal approval and to support preparation of a change order.
1-04.4(2)C2 Formal Approval
The Contractor’s submittal to the Engineer for formal approval shall include the following:
1.Deleted Work – Include the calculated quantities of unit price Work to be deleted. Include the proposed partial prices for portions of lump sum Work deleted. For deletion of force account items include the time and material estimates.
2.Added Work – Include the calculated quantities of unit price Work to be added, either by original unit Contract prices or by new, negotiated unit prices. For new items of Work include the quantities and proposed prices.
3.Contractor’s Engineering Costs – Submit the labor costs for the engineering to develop the proposal; costs for Contractor employees utilized in contract operations on a regular basis shall not be included.
4.Schedule Analysis – If the VECP is related to time savings, the Contractor shall submit a partial progress schedule showing the changed Work. The submittal shall also include a discussion comparing the partial progress schedule with the approved progress schedule for the project.
5.Working Drawings – Type 3 Working Drawings shall be submitted; those drawings which require engineering shall be a Type 3E. M 41-10 Page 1-27 Scope of the Work 1-04Formal approval of the proposal will be documented by issuance of a change order. The VECP change order will contain the following statements which the Contractor agrees to by signing the change order:
1.The Contractor accepts design risk of all features, both temporary and permanent, of the changed Work.
2.The Contractor accepts risk of constructability of the changed Work.
3.The Contractor provides the Contracting Agency with the right to use all or any part of the proposal on future projects without further obligation or compensation. VECP change orders will contain separate pay items for the items that are applicable to the Proposal. These are as follows:
1.Deleted Work.
2.Added Work.
3.The Contractor’s engineering costs, reimbursed at 100 percent of the Contractor’s cost.
4.Incentive payment to the Contractor. When added Work costs exceed Deleted Work costs, but time savings make a viable proposal, then items 3 and 4 above are replaced with the following:
3.The Contracting Agency’s share of added cost to achieve time savings.
4.The Contractor’s share of savings from deleted Work.
1-04.4(2)C3 Authority to Proceed with Changed Work
The authority for the Contractor to proceed with the VECP Work will be provided by one of the following options:
1.Execution of the VECP change order, or
2.At the Contractor’s request the Contracting Agency may provide approval by letter from the Engineer for the Work to proceed prior to execution of a change order. All of the risk for proceeding with the VECP shall be the responsibility of the Contractor. Additionally, the following criteria are required to have been met:
a.Concept approval has been granted by the Contracting Agency.
b.All design reviews and approvals have been completed, including plans and specifications.
c.The Contractor has guaranteed, in writing, the minimum savings to the Contracting Agency.
1-04.5 Procedure, Protest, and Dispute by the Contractor
If in disagreement with anything required in a change order, or the Engineer’s Written Determination or decision that the Contractor believes they are entitled to an increase in the Contract price or time, the Contractor shall:
1.Give a signed written notice of protest to the Engineer or the Engineer’s field Inspectors within 14 calendar days of receiving a change order or an Engineer’s Written Determination.
2.Supplement the written protest within 14 calendar days, or an extension of time as agreed by the Engineer in writing, with a written statement and supporting documents providing the following:
a.The date and nature of the protested order, direction, instruction, interpretation or determination; Page 1-28 M 41-10
1-04 Scope of the Workb. A full discussion of the circumstances that caused the protest, including names of
persons involved, time, duration and nature of the Work involved, and a review of the Plans and Contract Provisions referenced to support the protest;
c.The estimated dollar cost, if any, of the protested Work and a detailed breakdown showing how that estimate was determined; and
d.An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. If the Engineer determines, in writing, the supplemental information is insufficient to evaluate the protest or fails to include all required information, the Contractor may be allowed one correction of the supplemental information. The corrected supplemental information, when requested by the Engineer, shall be submitted within 14 calendar days or as specified by the Engineer, in writing. Throughout the protested Work, the Contractor shall keep complete records of extra costs and time incurred. The Contractor shall permit the Engineer access to these and all other records related to the protested Work as determined by the Engineer. The Engineer will evaluate all protests provided the procedures in this section are followed. If the Engineer determines that a protest has merits, the Engineer will adjust payment for Work or time by an equitable adjustment in accordance with Section 1-09.4 . Extensions of time will be evaluated in accordance with Section 1-08.8 . No adjustment will be made for a protest without merit. If the Engineer determines that the protest is without merit, that determination and the reasons for it will be provided in writing to the Contractor. The determination will be provided within 21 calendar days after receipt of the Contractor’s supplemental written statement (including any additional information requested by the Engineer to support a continuing protest) described in item 2 above. If the Contractor does not accept the Engineer’s determination then the Contractor shall pursue the dispute and claims procedures set forth in Section 1-04.5(1) . In spite of a protest or dispute, the Contractor shall proceed promptly with the Work as the Engineer orders. By failing to follow the procedures of Sections 1-04.5 , the Contractor completely waives any claims for protested Work.
1-04.5(1) Disputes
When protests occur during a Contract, the Contractor shall first pursue resolution through the Engineer as outlined in Section 1-04.5 . Unless noted otherwise in the specifications, compliance with all the requirements of Section 1-04.5 is a Condition Precedent to initiating any action pursuant to this Section. If the negotiations using the procedures outlined in Section 1-04.5 fail to provide satisfactory resolution of the protest, then the Contractor shall provide the Engineer with written notification of dispute stating that the Contractor will continue to pursue the dispute in accordance with the provisions of this Section. The written notification shall be provided within 14 calendar days after receipt of the Engineer’s determination of merit that the Contractor’s protest is without merit pursuant to Section 1-04.5 . When the Proposal Form includes the Bid item “Disputes Review Board”, unresolved protests shall be subject to the provisions of Section 1-04.5(1)A . Either party, Engineer or Contractor, may refer a matter in dispute to the Disputes Review Board (DRB or Board). Compliance with the requirements of Section 1-04.5(1)A is a Condition Precedent to any further right of the Contractor to pursue the dispute either by certified claim or litigation/arbitration. M 41-10 Page 1-29 Scope of the Work 1-04When the Proposal Form does not include the Bid item “Disputes Review Board”, the Contractor’s written notice of dispute noted above shall indicate whether the Contractor is requesting to resolve the dispute through the use of a Disputes Review Board as outlined in Section 1-04.5(1)A , or will submit a formal certified claim directly to the Engineer pursuant to Section 1-09.11(2) . If the Contractor requests a DRB, the Engineer will notify the Contractor in writing within 7 calendar days of receipt of the request whether the request is acceptable. If both parties to the dispute agree to use a DRB, then a pay item “Disputes Review Board” shall be added to the Contract by change order and the dispute will be subject to the provisions of Section 1-04.5(1)A . If the parties do not mutually agree to establish a DRB or the Contractor does not request a DRB in its written notice of dispute, the Contractor shall comply with the formal certified claim process outlined in Section 1-09.11(2) . Regardless of any protest or dispute, the Contractor shall proceed promptly with the Work as the Engineer orders and the Contracting Agency will continue to pay for all undisputed amounts.
1-04.5(1)A Disputes Review Board
The procedures set forth in Section 1-04.5(1)A shall apply only when a DRB has been created in accordance with Section 1-04.5(1) .
1-04.5(1)A1 Disputes Review Board - General
In order to assist in the resolution of dispute(s) between the Contracting Agency and the Contractor arising out of the Work of this Contract, a Disputes Review Board will consider disputes referred to it and furnish written recommendations to the Contracting Agency and Contractor to assist in resolution of the dispute(s). The purpose of the Board response to such issues is to provide nonbinding findings and recommendations designed to expose the disputing parties to an independent view of the dispute.
1-04.5(1)A2 Disputes Eligible for Consideration by the DRB
The Board will consider and provide written recommendations concerning the following disputes:
1.Interpretation of the Contract.
2.Entitlement to additional compensation and/or time for completion.
3.Other subjects mutually agreed by the Contracting Agency and Contractor to be a Board issue.
1-04.5(1)A3 Board Member Qualifications
The following definitions apply for the purpose of setting forth experience and disclosure requirements for Board members. Financial ties – Any ownership interest, loans, receivables, or payables. Party directly involved – The Contracting Agency or Contractor of this Contract. Party indirectly involved – The firms associated with the Contractor on this Contract, including joint venture partners, subcontractors of all tiers, and suppliers; and firms associated with the Contractor or the Contracting Agency on this Contract, such as designers, architects, engineers, or other professional service firms or consultants. The Board members shall:
1.Be experienced in the interpretation of construction contract documents.
2.Have attended training by the Dispute Resolution Board Foundation in dispute resolution within the last five years.
3.Be experienced in construction Contract dispute resolution for an owner or Contractor at the level of having responsibility and authority to settle disputes. Page 1-30 M 41-10
1-04 Scope of the Work4. Discharge their responsibilities impartially and independently, considering the facts
and conditions related to the matters under consideration in strict compliance with the provisions of the Contract.
5.Not be a current employee of any Party directly or indirectly involved.
6.Not have been an employee of any Party directly or indirectly involved with the Project within a period of one year of the Contract Execution date.
7.Not have a financial interest in the Contract except for payments for services on the Board.
1-04.5(1)A4 Board Member Ongoing Responsibilities
While serving as a Board member on this project:
1.No member will participate in any discussion contemplating the creation of an agreement or making an agreement with any party directly or indirectly involved in the Contract regarding employment or fee-based consulting services, or any other business arrangement after the Contract is completed.
2.No Board member will officially give any advice to either party. The individual members will act in a completely independent manner and will have no consulting or business connections with either party, except for payments for services on the Board.
3.During routine meetings of the Board as well as during formal hearings, Board members should refrain from expressing opinions on the merits of statements on matters under dispute or potential dispute. Opinions of Board members expressed in private sessions with other Board members should be kept strictly confidential.
4.The Board shall comply with the terms of the Contract and enforce such terms consistent with the laws of the State of Washington. Board members shall not supplant or otherwise interfere with the respective rights, authorities, duties and obligations of the Parties as defined in the Contract. In making its recommendations, the Board shall not make a recommendation that ignores, disregards, or undermines the intention, requirements, or allocation of risk, established by the Contract.
5.Disclosure of potential conflicts of interest is a continuing obligation of all Board members throughout the life of the Contract.
1-04.5(1)A5 Establishment of the Board
Process to establish the Board:
1.The Contracting Agency and Contractor shall meet prior to the first chargeable Contract working day to jointly select three prospective Board members.
2.The Contracting Agency and the Contractor shall provide to the Board nominees a list of the firms directly and indirectly involved with the Project, including, but not limited to designers, architects, engineers, professional service firms, consultants, JV partners, subcontractors and suppliers, along with a listing of key personnel of each.
3.Board nominees shall provide to the Contractor and Contracting Agency the following information:
a.Resume showing:
i.Full name and contact information. ii. Experience qualifying the person as a Board member. iii. Previous DRB participation, if any. List each DRB assignment separately, indicating the name and location of the project, approximate dates of DRB service, name of Contracting Agency, name of Contractor, names of the other Board members and the approximate number of disputes heard. When M 41-10 Page 1-31 Scope of the Work 1-04previous DRB experience is extensive, the list may be truncated at the prospective Board member’s discretion.
b.Disclosure statement addressing the following:
i.Previous or current direct employment by one of the parties directly or indirectly involved. ii. Previous or current engagement as a consultant to any party directly or indirectly involved - by the prospective Board member or by the firm to which the prospective Board member is directly employed. iii. Previous, current, or future financial ties to any of the parties directly or indirectly involved. iv. Previous or current personal or professional relationships with a key member of any party directly or indirectly involved.
v.Previous and current service as a Board member on projects where any of the parties directly or indirectly involved in this Contract were also involved. vi. Any prior involvement in this project. The Contracting Agency and the Contractor shall have three weeks to solicit and receive information from the three prospective candidates, and another two weeks to review and jointly agree on the final selection of the three members to serve on the Board. In the event that any of the three members cannot be agreed upon, the process shall be repeated for the positions not agreed upon until all positions are filled.
4.The Contracting Agency, the Contractor, and the Board shall execute the Three-Party Agreement not later than the first Board meeting (WSDOT Form 134-091).
5.The Board members shall determine amongst themselves who will act as the Board Chair. Use of the Contracting Agency/AGC Pool of DRB Candidates The qualifications of some potential DRB members have been reviewed and deemed potentially acceptable by both the Washington State Department of Transportation and the Associated General Contractors of Washington. This list of potential DRB members is available at https:/ /wsdot.wa.gov/business/construction/dispute-review-boards, and their resumes are available upon request from the Deputy State Construction Engineer. Nevertheless, either party may propose a DRB member or members that are not on the WSDOT/AGC Pool list. In either case, every potential Board member must comply with the requirements of Section 1-04.5(1)A3 , 1-04.5(1)A4 , and 1-04.5(1)A5 , and every Board member must be deemed acceptable by both the Contracting Agency and the Contractor. Replacement or Termination of a DRB Member Should a Board member need to be replaced, the replacement member will be appointed using the procedures in Section 1-04.5(1)A5 . The appointment of a replacement Board member will begin promptly upon determination of the need for replacement and shall be completed within 20 working days. Service of a Board member may be terminated at any time with not less than five calendar days’ notice as follows:
1.By Mutual agreement between the Contracting Agency and the Contractor.
2.By agreement of the other two Board members.
3.By resignation of the member. Termination of a member will be followed by selection of a replacement as specified above. Page 1-32 M 41-10
1-04 Scope of the Work1-04.5(1)A6 DRB Procedures – General
The Board, Contracting Agency, and Contractor may mutually develop rules of operation of the Board that supplement the Three Party Agreement. Such supplemental rules must be in writing and accepted by the Board, Contracting Agency, and Contractor. It is expressly understood that the Board members are to act impartially and independently in the consideration of facts and conditions surrounding disputes presented by the Contracting Agency or the Contractor and that the recommendations concerning disputes are advisory. The Contracting Agency will furnish to the Board documents which are or may become pertinent to the activities of the Board. The Contracting Agency shall furnish the following services and items:
1.Contract-Related Documents: The Contracting Agency will furnish the Board three copies of the Contract documents, including change orders, written instructions issued by the Contracting Agency to the Contractor, correspondence, or other documents pertinent to the performance of the Contract, and therefore, necessary to the Board’s work.
2.Coordination and Services: The Contracting Agency will, in cooperation with the Contractor, coordinate the operations of the Board. The Contracting Agency will arrange or provide conference facilities at or near the job site and copying services. The Contractor shall furnish to the Board three sets of documents, which are or may become pertinent to the activities of the Board, except documents furnished by Contracting Agency. Pertinent documents may include any drawings or sketches, calculations, procedures, schedules, estimates, correspondence, or other documents that are created in the planning or the performance of the Contract work. Copies of all documents provided to the Board must also be furnished to the Contracting Agency.
1-04.5(1)A7 Regular Board Meetings
All regular Board meetings are expected to be held at or near the job site. The frequency of regular meetings will be set by mutual agreement of the Board, the Contracting Agency and the Contractor, consistent with the construction activities and the matters under the Contract. Each regular meeting is expected to consist of a round table discussion and a field inspection of the work. A member of the Contracting Agency and Contractor are expected to jointly facilitate the round table discussion. Round table discussion attendees are expected to include selected personnel from the Contracting Agency and the Contractor. The agenda for each meeting will be set by the Board and may include the following elements:
1.Meeting opened by Chair of the Board.
2.Remarks by the Contracting Agency’s representative.
3.By the Contractor: a description of work accomplished since the last meeting, the current status of the work schedule, and a forecast for the coming period.
4.By the Contractor: An outline and description of potential problems.
5.By the Contracting Agency’s Project Engineer: An outline and description of the status of the work, including an assessment of potential problems (if any), from the Contracting Agency’s point of view.
6.A brief description, by the Contractor or the Contracting Agency, of potential claims or disputes, which have surfaced since the last meeting.
7.A summary, by the Contractor, the Contracting Agency or the Board, of the status of past disputes and claims.
8.A construction site visit. The Board must be accompanied by both Contracting Agency and Contractor personnel. M 41-10 Page 1-33 Scope of the Work 1-041-04.5(1)A8 Standard Procedure for Consideration of Disputes Dispute Referral The dispute referral shall be made in writing to the Board Chair with a copy concurrently provided to the other Board members and the other party.
1.The dispute referral shall concisely define the nature and specifics of the dispute that is proposed to be considered by the Board and the scope of the recommendation requested. This referral is not expected to contain a mutually agreed upon statement of the dispute.
2.The Board Chair shall confer with the parties to establish a briefing schedule for delivering prehearing submittals/rebuttals, and a date, time, and location for convening the Board hearing. Pre-Hearing Submittal
1.The Contracting Agency and the Contractor shall each prepare a pre-hearing submittal and transmit both a hard copy and an electronic copy of it to all three members of the Board and the other party. The pre-hearing submittal, comprising a position paper with such backup data as is referenced in the position paper, shall be tabbed, indexed, and the pages consecutively numbered.
2.Both position papers shall, at a minimum, contain the following:
a.A mutually agreed upon joint statement of the dispute and the scope of the desired report being requested of the Board, placed at the beginning of the papers. The language of this joint statement shall summarize in a few sentences the nature of the dispute. If the parties are unable to agree on the wording of the joint statement of dispute, each party’s position paper shall contain both statements, and identify the party authoring each statement.
b.The basis and justification for the party’s position, with reference to Contract language and other supporting documents for each element of the dispute. In order to minimize duplication and repetitiveness, the parties may identify a common set of documents that will be referred to by both parties, and submit them in a separate package.
3.If requested by the Board or either party, the Contracting Agency and the Contractor shall each prepare and submit a rebuttal paper in response the position paper of the other party.
4.The number of copies, distribution requirements, and time for submittal will be established by the Board and communicated to the parties by the Chair. Board Hearings
1.The Contracting Agency will arrange for or provide hearing facilities at or near the site.
2.Attendance:
a.The Contracting Agency and the Contractor will have a representative at all hearings.
b.The Contracting Agency and Contractor shall both limit attendance at the hearing to personnel directly involved in the dispute and participants in the good-faith negotiations that were conducted prior to submittal to the Board except as noted below. Page 1-34 M 41-10
1-04 Scope of the Workc. At least 14 calendar days before the hearing, each party shall provide a list
of proposed attendees to the Board and to the other party. In the event of a disagreement, the Board shall make the final determination as to who attends the hearing.
d.Attorneys shall not attend Board hearings except as provided below:
i.Attorneys are identified as such on the list of proposed attendees. ii. All parties desiring their attorney present are able to do so. iii. Attorneys shall not participate in the hearing, unless the scope and extent of Attorney participation is mutually agreed to by the Contracting Agency, Contractor and the Board at least 7 calendar days before the hearing.
e.At Board hearings regarding disputes involving a subcontractor, the Contractor shall require and ensure that each subcontractor involved in the dispute have present an authorized representative with actual knowledge of the facts underlying the subcontractor disputes.
3.A party furnishing written evidence or documentation of any kind to the Board must furnish copies of such information to the other party and the Board a minimum of 21 calendar days prior to the date the Board sets to convene the hearing for the dispute, unless otherwise mutually agreed to by the parties and the Board. Either party shall produce such additional evidence as the Board may deem necessary and furnish copies to the other party prior to submittal to the Board.
4.The conduct of the hearing shall be established by the Board and be generally consistent with the following guidelines:
a.The party who referred the dispute to the Board shall present first, followed by the other party.
b.To assure each party a full and adequate opportunity to present their position, both parties shall be allowed successive rebuttals and to rebut the opposing party’s position until, in the Board’s opinion, all aspects of the dispute have been fully and fairly covered.
c.The Board shall be fully prepared to, and may at any time, ask questions, request clarifications, or ask for additional data, documents, and/or job records.
d.Either party may request that the Board direct a question to, or request a clarification from the other party. The Board shall determine at what point in the proceedings such requests may be made and if they will be granted. In general, the Board will not allow one party to be questioned directly by the other party.
e.In difficult or complex cases, additional hearings may be necessary to facilitate full consideration and understanding of the dispute.
f.The Board, in its discretion, may allow introduction of arguments, exhibits, handouts, or documentary evidence that were not included in that party’s pre-hearing position paper or rebuttal and have not been previously submitted to the other party. In such cases the other party will be granted time to review and prepare a rebuttal to the new material, which may require a continuation of the hearing.
5.After the hearing is concluded, the Board shall meet in private and reach a conclusion supported by two or more members. Its findings and recommendations, together with its reasons shall then be submitted as a written report to both parties. The recommendations shall be based on the pertinent Contract provisions, facts, and circumstances involved in the dispute. The Contract shall be interpreted and construed in accordance with the laws of the State of Washington. The Board shall make every effort to reach a unanimous decision. If this proves impossible, the dissenting member may prepare a minority report. M 41-10 Page 1-35 Scope of the Work 1-04Failure to Prepare a Pre-Hearing Submittal or Attend a Board Hearing
1.In the event that either party fails to deliver a pre-hearing submittal by the date established by the Board, the Board shall, at its discretion, determine whether the hearing shall proceed as originally scheduled, or allow additional time for the submittal and/or reschedule the hearing. On the final date and time established for the hearing, the Board shall proceed with the hearing utilizing the information that has been submitted.
2.In the event that representatives of either the Contracting Agency or the Contractor fail to appear at the appointed time of a Board hearing, the Board shall postpone the hearing until such time as representatives from both parties are available to proceed with the hearing. Use of Outside Experts
1.By the Contracting Agency or the Contractor:
a.A party intending to offer an outside expert’s analysis at the hearing shall notify the other party and the Board in writing no less than 30 calendar days prior to the due date for delivering the pre-hearing submittal, and provide the following disclosure:
i.The expert’s name and a general statement of the area of the dispute that will be covered by his or her testimony. ii. A statement prepared by the proposed expert which addresses the requirements of Section 1-04.5(1)A5 , item 3(b). iii. A statement prepared by the proposed expert which identifies the experience and training which qualifies them as an expert.
b.Upon receipt of the above disclosure, the other party shall have the opportunity to secure the services of an outside expert to address or respond to those is- sues that may be raised by the other party’s outside expert. The notification and disclosure requirement shall be the same as that specified above, except the time requirement is 21 calendar days.
c.In the event that either the Contracting Agency or the Contractor fail to notify the other party of their intent to provide an outside expert; the Board, in its discretion, may allow introduction of the outside experts arguments, exhibits, handouts, or documentary evidence that were not included in that party’s pre-hearing position paper or rebuttal and have not been previously submitted to the other party. In such cases the other party will be granted time to review and prepare a rebuttal to the new material, which may require a continuation of the hearing.
2.By the Board:
a.When requested by the Board and subject to approval of the parties, outside experts may be needed to assist the Board. In such cases, the outside expert shall in no way be deemed authorized to usurp the Board’s authority to issue the Board recommendations. Such authority shall remain vested solely in the Board.
b.Prior to arranging for outside experts, the Board shall obtain prior approval from the Contracting Agency and the Contractor by providing:
i.A statement explaining why the expert assistance is needed. ii. An estimate of the cost of the expert assistance. iii. The expert’s name and a general statement of the area of expertise they will provide. Page 1-36 M 41-10
1-04 Scope of the Workiv. A statement prepared by the proposed expert which addresses the
requirements of Section 1-04.5(1)A5 , item 3(b).
v.A statement prepared by the proposed expert which identifies the experience and training which qualifies them as an expert. vi. A confidentiality statement, consistent with the confidentiality obligations of the Board described in the Three Party Agreement, executed by the proposed expert. DRB Report
1.The Board’s recommendations for resolution of a dispute will be formalized in a written report signed by all Board members. The recommendations shall be based on the Contract Provisions and the facts and circumstances involved in the dispute. The report should include a description of the dispute, statements of each party’s position, findings as to the facts of the dispute, discussion and rationale for the recommendation(s), and the recommendation(s). The report shall be submitted concurrently to the parties, as soon as possible after completion of the hearing as agreed by all parties.
2.If the Board cannot arrive at a unanimous report, the Board shall prepare minority findings and recommendations, which, together with the majority findings and recommendations shall comprise the DRB report. The minority report shall identify the issues of disagreement, along with the reasons for disagreement.
3.Clarification:
a.Either party may request clarification of a report within 14 calendar days following receipt of the report. Within a reasonable period of time, the Board shall provide written clarification to both parties.
b.Requests for clarification shall be submitted in writing simultaneously to the Board and the other party.
4.Reconsideration:
a.Either party may request reconsideration of a report, provided:
i.The request is made within 14 calendar days following receipt of the report, and ii. New information is obtained or developed that was not known at the time of the hearing or, in the party’s opinion, the Board misunderstood or failed to consider pertinent facts of the dispute.
b.Within a reasonable time, the Board shall provide written reconsideration to both parties.
c.Requests for reconsideration shall be submitted in writing simultaneously to the Board and the other party.
d.The Board will give the party not requesting reconsideration the option of submitting a rebuttal to any information that is the basis of the request for reconsideration. Acceptance of Board Recommendations Within 30 calendar days of receiving the Board recommendations or within 14 calendar days of receiving the Board’s written clarification and/or reconsideration, both the Contracting Agency and the Contractor shall respond to the other in writing signifying that the dispute is either resolved or remains unresolved. Although both parties should place weight upon the Board recommendations, the recommendations are not binding. M 41-10 Page 1-37 Scope of the Work 1-04If the Board’s assistance does not lead to resolution of the dispute, the Contractor must file a claim according to Section 1-09.11(2) before seeking any form of judicial relief. In the event the Board’s recommendations do not lead to resolution of the dispute, the Board’s recommendation consisting solely of the Board’s written report and all written minority reports, along with the Board’s written clarifications and written responses to requests for reconsideration, if any, will be admissible in any subsequent dispute resolution proceedings including, but not limited to litigation/arbitration. The aforementioned list of documentation shall be considered all-inclusive.
1-04.5(1)A9 Vacant
1-04.5(1)A10 Payment for the DRB Processes
1.The Contractor and Contracting Agency shall each bear their respective in-house costs.
2.The Contracting Agency and Contractor shall share equally in the cost of the Board’s services and all operating expenses of the Board. The Board members’ compensation shall be in accordance with the Three Party Agreement. After the Contractor and Contracting Agency review invoices from the Board and other operating expenses of the Board, the Contractor shall make full payment for all Board Members and Board operating expenses. The Contracting Agency will reimburse the Contractor for 50% of such payments, under the pay item “Disputes Review Board”.
3.The Contractor and the Contracting Agency shall equally bear the cost of the services of the outside expert hired to advise the Board. Outside experts hired to advise the Board shall Contract directly with the Contractor after concurrence from the Board and approval from the Contracting Agency. Invoices for these services shall be submitted by the expert to both the Contractor and Contracting Agency for approval by both parties. The Contractor shall pay approved invoices in full, and the Contracting Agency will reimburse the Contractor for 50% of such payments, under the Bid item “Disputes Review Board”.
4.The cost for securing outside expert services for the Contracting Agency or the Contractor shall be borne by the party securing such services.
5.The Contracting Agency, through the Engineer, will provide administrative services, such as conference facilities and copying services, to the Board and the Contracting Agency will bear the costs for these services.
1-04.5(1)A11 Indemnification of DRB Members
The Contracting Agency and Contractor shall indemnify and hold harmless the Board Members from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees arising out of and resulting from the actions and recommendations of the Board.
1-04.6 Variation in Estimated Quantities
Payment to the Contractor will be made only for the actual quantities of Work performed and accepted in conformance with the Contract. When the accepted quantity of Work performed under a unit item varies from the original Proposal quantity, payment will be at the unit Contract price for all Work unless the total accepted quantity of the Contract item, adjusted to exclude added or deleted amounts included in change orders accepted by both parties, increases or decreases by more than 25 percent from the original Proposal quantity. In that case, payment for Contract Work may be adjusted as described herein. The adjusted final quantity shall be determined by starting with the final accepted quantity measured after all Work under an item has been completed. From this amount, subtract any quantities included in additive change orders accepted by both parties. Then, Page 1-38 M 41-10
1-04 Scope of the Workto the resulting amount, add any quantities included in deductive change orders accepted
by both parties. The final result of this calculation shall become the adjusted final quantity and the basis for comparison to the original Proposal quantity.
1.Increased Quantities – Either party to the Contract will be entitled to renegotiate the price for that portion of the adjusted final quantity in excess of 1.25 times the original Proposal quantity. The price for excessive increased quantities will be determined by agreement of the parties, or, where the parties cannot agree, the price will be determined by the Engineer based upon the actual costs to perform the Work, including reasonable markup for overhead and profit.
2.Decreased Quantities – Either party to the Contract will be entitled to an equitable adjustment if the adjusted final quantity of Work performed is less than 75 percent of the original Bid quantity. The equitable adjustment shall be based upon and limited to three factors:
a.Any increase or decrease in unit costs of labor, materials or equipment, utilized for Work actually performed, resulting solely from the reduction in quantity;
b.Changes in production rates or methods of performing Work actually done to the extent that the nature of the Work actually performed differs from the nature of the Work included in the original plan; and
c.An adjustment for the anticipated contribution to unavoidable fixed cost and overhead from the units representing the difference between the adjusted final quantity and 75 percent of the original Plan quantity. The following limitations shall apply to renegotiated prices for increases and/or equitable adjustments for decreases:
1.The equipment rates shall be actual cost but shall not exceed the rates set forth in the AGC/WSDOT Equipment Rental Agreement (referred to in Section 1-09.6 ) that is in effect at the time the Work is performed.
2.No payment will be made for extended or unabsorbed home office overhead and field overhead expenses to the extent that there is an unbalanced allocation of such expenses among the Contract Bid items.
3.No payment for consequential damages or loss of anticipated profits will be allowed because of any variance in quantities from those originally shown in the Proposal form, Contract Provisions, and Contract Plans.
4.The total payment (including the adjustment amount and unit prices for Work performed) for any item that experiences an equitable adjustment for decreased quantity shall not exceed 75 percent of the amount originally Bid for the item. If the adjusted final quantity of any item does not vary from the quantity shown in the Proposal by more than 25 percent, then the Contractor and the Contracting Agency agree that all Work under that item will be performed at the original Contract unit price. When ordered by the Engineer, the Contractor shall proceed with the Work pending determination of the cost or time adjustment for the variation in quantities. The Contractor and the Contracting Agency agree that there will be no cost adjustment for decreases if the Contracting Agency has entered the amount for the item in the Proposal form only to provide a common Proposal for Bidders.
1-04.7 Differing Site Conditions (Changed Conditions)
During the progress of the Work, if preexisting subsurface or latent physical conditions are encountered at the site, differing materially from those indicated in the Contract, or if preexisting unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract, are encountered at the site, the party discovering such conditions shall M 41-10 Page 1-39 Scope of the Work 1-04promptly notify the other party in writing of the specific differing site conditions before they are disturbed and before the affected Work is performed. Upon written notification, the Engineer will investigate the conditions to determine if conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any Work under the Contract, an adjustment, excluding loss of anticipated profits, will be made and the Contract modified in writing accordingly. The Engineer will provide the Contractor a Written Determination whether an adjustment of the Contract is warranted. No Contract adjustment which results in a benefit to the Contractor will be allowed unless the Contractor has provided the required written notice. The equitable adjustment will be by agreement with the Contractor. However, if the parties are unable to agree, the Engineer will determine the amount of the equitable adjustment in accordance with Section 1-09.4 . Extensions of time will be evaluated in accordance with Section 1-08.8 . If the Engineer determines that different site conditions do not exist and no adjustment in costs or time is warranted, such determination shall be final as provided in Section 1-05.1 . If there is a decrease in the costs or time required to perform the Work, failure of the Contractor to notify the Engineer of the differing site conditions shall not affect the Contracting Agency’s right to make an adjustment in the costs or time. If the Contractor does not agree with the Engineer’s Written Determination, the Contractor shall pursue the protest procedures in accordance with Section 1-04.5 . No claim by the Contractor shall be allowed unless the Contractor has followed the procedures provided in Sections 1-04.5 and 1-09.11 .
1-04.8 Progress Estimates and Payments
Engineer-issued progress estimates or payments for any part of the Work shall not be used as evidence of performance or quantities. Progress estimates serve only as basis for partial payments. The Engineer may revise progress estimates any time before final acceptance. If the Engineer deems it proper to do so, changes may be made in progress estimates and in the final estimate.
1-04.9 Use of Buildings or Structures
The Engineer will decide whether any building or Structure on the Right of Way may remain during the Work and whether the Contractor may use such a building or Structure.
1-04.10 Use of Materials Found on the Project
With the Engineer’s written approval, the Contractor may use on the project: stone, gravel, sand, other materials from on-site excavation, or timbers removed in the course of the Work. Approval will not be granted if:
1.The excavated materials or timber fail to meet Contract requirements;
2.The excavated materials or timber are required for other use under the Contract;
3.The excavated materials are required for use as Selected Materials under Section
2-03 3(10); or
4.Such use is not in the best interests of the Contracting Agency as determined by the Engineer, whose decision shall be final as provided in Section 1-05.1 . Any material disturbed by, but not used in, the Work shall be disposed of as provided elsewhere in the Contract or as ordered by the Engineer in accordance with Page 1-40 M 41-10
1-04 Scope of the Work1-04.11 Final Cleanup
The Contractor shall perform final cleanup as provided in this section to the Engineer’s satisfaction. The Engineer will not establish the Physical Completion Date until this is done. The Highway Right of Way, material sites, and all ground the Contractor occupied to do the Work shall be left neat and presentable. The Contractor shall:
1.Remove all rubbish, surplus materials, discarded materials, falsework, temporary structures, equipment, and debris; and
2.Deposit in embankments, or remove from the project, all unneeded, oversized rock left from grading, surfacing, or paving. The Contractor shall not remove warning, regulatory, or guide signs unless the Engineer approves.
Source: Washington Standard Specifications for Road, Bridge, and Municipal Construction, 2024 Edition. Pages 74–92 of 1,151.