Page 1-104 M 41-101-08 Prosecution and Progress
1-08.1 Subcontracting
1-08.1(1) General
For purposes of this Section, all Work that is not self-performed by the Contractor will be considered as subcontracting except the following, hereinafter referred to as materials supplying: (1) when purchased directly by the Contractor - sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready-mix concrete, off-site fabricated structural steel, other off-site fabricated items, and any other materials supplied by established and recognized commercial plants; or (2) delivery of these materials to the Work site in vehicles owned or operated by such plants or by recognized independent or commercial hauling companies hired by those commercial plants. References to subcontractors of a given tier mean the tier in relation to the Contractor. For example, first-tier subcontractors all hold a contract directly with the Contractor, known as a first-tier subcontract. Second-tier subcontractors all hold a contract with a first-tier subcontractor, known as a second-tier subcontract.
1-08.1(2) Self-Performance Requirements
Work done by the Contractor’s own organization shall account for at least 30 percent of the Awarded Contract price. Work done by the first-tier subcontractor’s own organization shall account for at least 30 percent of its subcontract price. Self-performance requirements of other subcontractors, such as DBE, SVBE, or MWBE, shall apply only when included elsewhere in the Contract. In the event of a conflict between specifications, the highest required minimum percentage for self-performance shall take precedence.
1-08.1(3) Subcontractor Approval
Work shall not be subcontracted at any tier unless the Engineer approves in advance and in writing. Each request to subcontract shall be submitted on WSDOT Form 421-012, Request to Sublet. If the Engineer requests proof that a subcontractor, of any tier, has the record, experience, equipment, and ability the Work requires, the Contractor shall provide such proof. The Engineer will approve the request only if the proposed subcontractor meets the Contract requirements and the Engineer is satisfied with the proposed subcontractor’s record, equipment, experience, and ability. Approval to subcontract, at all tiers, shall not:
1.Relieve the Contractor of responsibility to carry out the Contract,
2.Relieve the Contractor of obligations or liability under the Contract and the Contractor’s bond,
3.Create a contract between the Contracting Agency and the subcontractor, or
4.Convey to the subcontractor any rights against the Contracting Agency.
1-08.1(4) Requests to Sublet for First-Tier Subcontractors
Along with the request to sublet for each first-tier subcontractor, the Contractor shall submit documentation which demonstrates that each first-tier subcontractor will self- perform at least 30% of its contract with the Contractor. This may be demonstrated by submitting the names, scope of work, and subcontract amounts of all second-tier subcontractors that each first-tier subcontractor proposes to use. For purposes of this calculation, the exclusion for materials suppliers described in Section 1-08.1(1) will apply.
1-08 Prosecution and Progress
M 41-10 Page 1-1051-08.1(5) Restrictions on Subcontracting The Contractor, as well as subcontractors for all tiers, shall not use businesses (material suppliers, vendors, subcontractors, etc.) with federal purchasing exclusions. Businesses with exclusions are identified by using the System for Award Management web page at www.sam.gov .
1-08.1(6) Removal of Subcontractors
If dissatisfied with any part of the Work performed by a subcontractor of any tier, the Engineer may request in writing that the subcontractor performing the unsatisfactory Work be removed. The Contractor shall comply with this request at once and shall not employ the subcontractor for any further Work under the Contract.
1-08.1(7) Payments to Subcontractors and Lower-Tier Subcontractors
1-08.1(7)A Payment Reporting
The Contractor shall report the actual amounts paid to all firms that were used as subcontractors of any tier, materials suppliers, manufacturers, regular dealers, or service providers on the Contract including all Disadvantaged, Minority, Small, Veteran, or Women’s Business Enterprise firms. The Contractor shall report this information by entering it into the Contracting Agency’s Diversity Management and Compliance System at: https:/ /wsdot.diversitycompliance.com. Payments shall be reported no later than the 20th of the month for progress estimate payments received in the previous calendar month. For example, when the Contracting Agency makes a progress estimate payment during the month of March, the Contractor shall enter payments made to other firms into DMCS by April 20th. Payments shall be reported between execution of the Contract and the Contract Completion Date. When no Work occurred or no payments were made for a firm, the reported payment shall be zero. The Contractor shall require all recipients of such payments to use DMCS to acknowledge their receipt of payment.
1-08.1(7)B Prompt Payment
The Contractor shall comply with all requirements regarding prompt payment including, but not limited to, the requirements of RCW 39.04.250 , 39.76.011 , 39.76.020 , and 39.76.040 . The Contractor shall make payment to its first-tier subcontractors not later than 10 calendar days after receipt of payment from the Contracting Agency for Work satisfactorily completed by its first-tier subcontractors, to the extent of the first-tier subcontractor’s interest therein. Satisfactorily completed Work shall mean when all the associated Contract items of Work have been accomplished and documented as required by the Contracting Agency. Upon request by any subcontractor or materials supplier at any tier, the Engineer will provide a copy of any or all progress payment estimates the Engineer has made to the Contractor.
1-08.1(7)C Subcontractor Retainage
Requests by the first-tier subcontractor to the Contractor for the release of their retainage or retainage bond shall be in writing. Within 10 calendar days of the request, the Contractor shall determine if the first-tier subcontract has been satisfactorily completed, including any required lien releases, documentation, and material testing, and shall inform the first-tier subcontractor, in writing, of the Contractor’s determination. In determining whether satisfactory completion has been achieved, the Contractor may require the first-tier subcontractor to provide documentation such as certifications and releases, showing that all laborers, Prosecution and Progress 1-08 Page 1-106 M 41-10lower-tier subcontractors, suppliers of material and equipment, and others involved in the first-tier subcontractor’s Work have been paid in full. The Contractor may also require any documentation from the first-tier subcontractor that is required by the first-tier subcontract, or by the Contract between the Contractor and Contracting Agency, or by any applicable law, including but not limited to affidavits of wages paid and material acceptance certifications, to the extent they relate to work performed by the first-tier subcontractor or to any of its lower-tier subcontractors. If the Contractor determines the first-tier subcontract has been satisfactorily completed, the first-tier subcontractor’s retainage or retainage bond shall be released by the Contractor within 10 calendar days from the date of the written notice. If the Contractor determines the first-tier subcontractor has not achieved satisfactory completion of the first-tier subcontract, the Contractor must provide the first-tier subcontractor with written notice stating specifically why the first-tier subcontract work is not satisfactorily completed and what must be done to achieve satisfactory completion. The Contractor shall release the first-tier subcontractor’s retainage or retainage bond within 10 calendar days after the first-tier subcontractor has satisfactorily completed the Work identified in the notice. If the Contractor fails to comply with the requirements of this Section and the first-tier subcontractor’s retainage or retainage bond is wrongfully withheld, the Contractor will be subject to the actions described in Section 1-08.1(11) . The first-tier subcontractor may also seek recovery against the Contractor under applicable prompt pay statutes in addition to any other remedies provided by the first-tier subcontract or by law.
1-08.1(7)D Contractor or Subcontractor Withholding
“Withholding” (or to Withhold) is the act by the Contractor of making a payment to one of its subcontractors that is less than the payment amount requested by its subcontractor, or the act by a subcontractor of making a payment to its lower-tier subcontractor that is less than the payment amount requested by its lower-tier subcontractor. Withholding includes but is not limited to offsets, back charges, deferrals, adjustments for incorrect invoicing, unsatisfactory performance, damages, and delay costs, and can be either agreed or disputed amounts. Such an amount shall be considered an unresolved Withholding unless the invoice clearly indicates agreement with the purpose and amount of the Withholding. Retainage will not be considered a Withholding unless it is disputed by the subcontractor. In the event of a Withholding, the entity Withholding the payment shall provide written notice to the entity from which payment is Withheld. This notice should be sent as soon as the decision to Withhold is made, but in no case shall it be later than the date payment would otherwise be due. At the same time the Withholding notice is sent, a copy of the Withholding notice shall be sent to the Engineer. The Contractor shall send the Engineer copies of all Withholding notices it receives from materials suppliers and subcontractors of any tier, within three calendar days of their receipt. A Withholding notice shall include an accounting of payments to date, the value and reason(s) for the Withheld amount, and an explanation of what must be done to have the Withheld amount released. If the cause of the Withholding is an improper invoice, the notice shall indicate the exact nature of the impropriety. The entity from which payment is Withheld shall be paid within eight calendar days after it completes the remedial action identified.
1-08.1(7)E Contracting Agency Withholding Regarding Prompt Pay
Withholding will not be considered resolved until the Contracting Agency receives written confirmation, by the entity from which the payment was Withheld, that either:
1.The Withholding has been paid, or
2.It agrees with the Withholding purpose and amount, and the issue is closed.
1-08 Prosecution and Progress
M 41-10 Page 1-107In the event any Withholding is not resolved by the time the Contractor’s first progress payment is due after the Engineer initially received notice that the Withholding occurred, the Engineer will withhold the same amount from the Contractor, in that progress payment, as the amount of the unresolved Withholding.
1-08.1(7)F Subcontract Disputes Resolution Process
When the Contracting Agency has not received written notice of resolution as described in Section 1-08.1(7)E by the due date of the second progress payment, except when the parties of a Withholding dispute agree to resolve the dispute later, the following shall occur:
1.The party withholding funds shall immediately initiate the dispute resolution process provided in its subcontract with the party from whom the funds are being withheld.
2.The Contractor shall notify the Contracting Agency of the status, or changes in status of all dispute resolutions regarding Withholding. Disputes triggered by Contracting Agency withholding payment shall be resolved in accordance with Section 1-04.5 .
1-08.1(8) Vacant
1-08.1(9) Required Subcontract Clauses
1-08.1(9)A Clauses Required in All First-Tier Subcontracts
The Contractor shall include the following clauses in every first-tier subcontract. First-tier subcontractors shall self-perform at least 30 percent of the dollar value of their contract with the Contractor. For purposes of calculating this percentage, all work that is not performed by the Contractor will be considered as subcontracting except:
1.purchase of sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready-mix concrete, off-site fabricated structural steel, other off-site fabricated items, and any other materials supplied by established and recognized commercial plants; or
2.delivery of these materials to the Work site in vehicles owned or operated by such plants or by recognized independent or commercial hauling companies hired by those commercial plants.
1-08.1(9)B Clauses Required in Subcontracts of All Tiers
The Contractor shall include in all of its first-tier subcontracts - and shall require subcontracts at all tiers to include - the following clauses, in addition to any subcontract clauses required elsewhere in the Contract. Prior to subcontracting any Work, the Contractor shall verify that every first-tier subcontractor meets the criteria stated in items 1 through 5 at the time of subcontract execution.
1.Every subcontractor shall possess any electrical contractor license required by RCW 19.28 or elevator contractor license required by RCW 70.87 , if applicable;
2.Every subcontractor shall have a certificate of registration in compliance with chapter RCW 18.27 ;
3.Every subcontractor shall have a current State unified business identifier number;
4.Every subcontractor shall, if applicable, have:
a.Industrial insurance coverage for the bidder’s employees working in Washington (Title 51 RCW );
b.An employment security department number ( Title 50 RCW );
c.A State excise tax registration number ( Title 82 RCW ); Prosecution and Progress 1-08 Page 1-108 M 41-105. No subcontractor shall be used that is disqualified from bidding on any public works contract under RCW 39.06.010 or RCW 39.12.065(3) .
6.All subcontracts shall comply with Section 1-07.9 , including the requirements to furnish all certificates and statements required by the Contract.
7.All subcontracts shall have a dispute resolution process incorporated for resolving issues between the parties to the subcontract.
8.Section 1-08.1(3) Subcontractor Approval
9.Section 1-08.1(5) Restrictions on Subcontracting
10.Section 1-08.1(6) Removal of Subcontractors
11.Section 1-08.1(7)B Prompt Payment When incorporating this into subcontracts to which the Contractor is not a party, all duties, rights, and responsibilities of the Contractor shall be understood to adhere to the upper tier subcontractor; all duties, rights, and responsibilities of the first-tier subcontractor shall be understood to adhere to the lower-tier subcontractor.
12.Section 1-08.1(7)C Subcontractor Retainage When incorporating this into subcontracts to which the Contractor is not a party, all duties, rights, and responsibilities of the Contractor shall be understood to adhere to the upper tier subcontractor; all duties, rights, and responsibilities of the first-tier subcontractor shall be understood to adhere to the lower-tier subcontractor.
13.Section 1-08.1(7)D Contractor or Subcontractor Withholding Regarding the requirements for providing copies of notices to the Engineer, all communications from subcontractors at any tier shall be transmitted through higher tier subcontractors and the Contractor before going to the Engineer.
14.1-08.1(7)E Contracting Agency Withholding Related to Prompt Pay Regarding the requirements for providing copies of notices to the Engineer, it shall be understood that all communications from subcontractors at any tier shall be transmitted through higher tier subcontractors and the Contractor before going to the Engineer.
15.1-08.1(7)F Subcontract Disputes Resolution Process
1-08.1(10) Failure to Comply
Failure by the Contractor to comply with the requirements of Section 1-08.1 may result in one or more of the following actions being taken against the Contractor:
1.Reflected in the Prime Contractor’s Performance Evaluation.
2.Cancellation, termination, or suspension of the Contract, in whole or in part.
3.Sanctions as provided by the Contract or by law under applicable prompt payment statutes including RCW 39.04.250 .
4.Suspension, revocation, or limitation of prequalification status as provided for in WAC 468-16 et seq .
1-08.1(11) Payment
Unless otherwise stated in Section 1-08.1 , the Contractor shall be solely responsible for all costs related to complying with Section 1-08.1 . Those costs shall be incidental to the respective Bid items.
1-08.2 Assignment
The Contractor shall not assign all or any part of the Work unless the Engineer approves in writing. The Engineer will not approve any proposed assignment that would relieve the original Contractor or Surety of responsibility under the Contract.
1-08 Prosecution and Progress
M 41-10 Page 1-109Money due (or that will become due) to the Contractor may be assigned. If given written notice, the Contracting Agency will honor such an assignment to the extent the law permits. But the assignment shall be subject to all setoffs, withholdings, and deductions required by law and the Contract.
1-08.3 Progress Schedule
1-08.3(1) Progress Schedule Types
When provided for in the proposal the Contractor shall submit a type B or type C progress schedule for acceptance. When no progress schedule is included in the proposal a type A progress schedule shall be submitted for acceptance.
1-08.3(2) General Requirements
The Contractor shall submit progress schedules and schedule updates to the Engineer for acceptance showing Work that complies with all time and order of Work requirements in the Contract. Scheduling terms and practices shall conform to the standards established in Construction Planning and Scheduling, Second Edition , published by the Associated General Contractors of America. Except for weekly look- ahead schedules, all schedules shall meet these General Requirements, and provide the following information:
1.Include all activities necessary to physically complete the project.
2.Show the planned order of Work activities in a logical sequence.
3.Show durations of Work activities in working days as defined in Section 1-08.5 .
4.Show activities in durations that are reasonable for the intended Work.
5.Define activity durations in sufficient detail to evaluate the progress of individual activities on a daily basis.
6.Show the critical path.
7.Show the Physical Completion of all Work within the authorized Contract time. Total float belongs to the project and shall not be for the exclusive benefit of either party. The Contracting Agency allocates its resources to a Contract based on the total working days allowed in the Contract. The Contracting Agency may accept a progress schedule indicating an early Physical Completion Date but cannot guarantee the Contracting Agency’s resources will be available to meet an accelerated schedule. No additional compensation will be allowed if the Contractor is not able to meet their accelerated schedule due to the unavailability of Contracting Agency’s resources or for other reasons beyond the Contracting Agency’s control. If the Engineer determines that the progress schedule or a schedule update submitted in accordance with these specifications does not provide the required information, then the schedule will be returned to the Contractor for correction and resubmittal. The Engineer’s acceptance of schedules shall not transfer the Contractor’s responsibilities to the Contracting Agency. The Contractor alone shall remain responsible for adjusting forces, equipment, and Work schedules to ensure completion of the Work within the time(s) specified in the Contract.
1-08.3(2)A Type A Progress Schedule
The Contractor shall submit a Type A progress schedule meeting the requirements of
1.Schedule shall be submitted no later than 10 calendar days after the date the contract is executed, or some other mutually agreed upon submittal time.
2.The schedule may be a critical path method (CPM) schedule, bar chart, or other standard schedule format. Prosecution and Progress 1-08 Page 1-110 M 41-10The Engineer will evaluate the Type A progress schedule and accept or return the schedule for corrections within 15 calendar days of receiving the submittal.
1-08.3(2)B Type B Progress Schedule
The Contractor shall submit a Type B progress schedule meeting the requirements of The Contractor shall submit the complete progress schedule depicting the entire project no later than 30 calendar days after the date the Contract is executed. The schedule shall be a critical path method (CPM) schedule developed by the precedence diagramming method (PDM). Restraints may be utilized but may not serve to change the logic of the network or the critical path. The schedule shall display at least the following information:
1.Contract Number and Title
2.Construction Start Date
3.Critical Path
4.Activity Description
5.Milestone Description
6.Activity Duration
7.Predecessor Activities
8.Successor Activities
9.Early Start (ES) and Early Finish (EF) for each activity
10.Late Start (LS) and Late Finish (LF) for each activity
11.Total Float (TF) and Free Float (FF) for each activity
12.Physical Completion Date
13.Data Date Each time that a preliminary progress schedule, progress schedule, or schedule update is submitted, the Contractor shall provide the Engineer with an electronic copy (.XER or .XML file type extension) of that schedule. Each submitted progress and update schedule shall have a unique file name and date identifier. Regardless of the type of software used, the schedule data provided to the Engineer shall be submitted to the Engineer in a compatible format of Primavera Project Manager Enterprise. All calendars used shall be created as project calendars, not global or resource calendars. If multiple calendars are applied to the progress schedule, the Contractor shall submit a written narrative describing each one’s purpose. The Engineer will evaluate the progress schedule and accept or return the schedule for corrections within 15 calendar days of receiving the submittal.
1-08.3(2)C Type C Progress Schedule
In addition to the requirements of Section 1-08.3(2) and Section 1-08.3(2)B, the following shall apply for Type C schedules. Type C progress schedules shall display at least the following additional information:
1.A time scaled logic diagram.
2.Activities for traffic detours and closures.
3.Milestones for required delivery of State furnished materials, if any.
4.Activities for State furnished traffic control resources, if any.
5.Activities for fabrication of materials longer than 90 calendar days lead time.
1-08 Prosecution and Progress
M 41-10 Page 1-1116. Fixed constraints shall be identified on the activity listing, supplemented with a written narrative describing why the constraint exists.
7.Milestones for interim or stage completion dates.
8.Activities for scheduled outages on illumination systems, ITS systems, traffic signal systems and other electrical service outages.
9.Nighttime activities shall be so coded.
10.Activities for all submittals requiring State review, including the allowable review duration.
1-08.3(2)D Preliminary Progress Schedules
The Contractor shall submit a preliminary progress schedule meeting the requirements of
1.The preliminary progress schedule shall be submitted no later than 10 calendar days after the date the Contract is executed for all Type B and Type C progress schedules.
2.The preliminary progress schedule shall comply with all of these requirements and the requirements of Section 1-08.3(2), except that it may be limited to only those activities occurring within the first 60 working days of the project. The preliminary progress schedule shall show the critical path.
1-08.3(2)E Weekly Look-Ahead Schedule
Each week that Work will be performed, the Contractor shall submit a weekly look-ahead schedule showing the Contractor’s and all subcontractors’ proposed Work activities for the next three weeks or other agreed upon duration. The weekly look-ahead schedule shall include the description, duration and sequence of Work, along with the planned hours of Work. This schedule may be a network schedule, bar chart, or other standard schedule format. The weekly look-ahead schedule shall be submitted to the Engineer by the midpoint of the week preceding the scheduled Work or some other mutually agreed upon submittal time.
1-08.3(3) Schedule Updates
The Engineer may request a schedule update when one or more of the following events occurs:
1.The project has experienced a change that affects the critical path.
2.The sequence of Work is changed from that in the approved schedule.
3.The project is significantly delayed.
4.Upon receiving an extension of Contract time. The Contractor shall submit a progress schedule update within 15 calendar days of receiving a written request, or when an update is required by other provisions of the Contract. A “significant” delay in time is defined as 10 working days or 10 percent of the original Contract time, whichever is greater. In addition to the other requirements of this section, schedule updates shall reflect the following information:
1.The actual duration and sequence of as-constructed Work activities, including changed Work.
2.Approved time extensions.
3.Construction delays or other conditions that affect the progress of the Work.
4.Modifications to the as-planned sequence or duration of remaining activities.
5.The Physical Completion of all remaining Work in the remaining Contract time. Prosecution and Progress 1-08 Page 1-112 M 41-10Unresolved requests for time extensions shall be reflected in the schedule update by assuming no time extension will be granted, and by showing the effects to follow-on activities necessary to physically complete the project within the currently authorized time for completion.
1-08.3(4) Measurement
No specific unit of measurement shall apply to the lump sum item for Type B Progress Schedule.
1-08.3(5) Payment
All costs for providing type A progress schedules and weekly look-ahead schedules are considered incidental to other items of Work in the Contract. Regardless of schedule type, no payment will be made for schedule updates that are required due to the Contractors operations. Schedule updates required by events that are attributed to the actions of the Contracting Agency will be paid for in accordance with Section 1-09.4. Payment will be made for each of the following Bid Items that are included in the Proposal: “Type ____ Progress Schedule”, lump sum. The lump sum price shall be full pay for all costs for furnishing the progress schedule and preliminary progress schedule. Payment of 80 percent of the lump sum price will be made upon acceptance of the progress schedule. Payment will be increased to 100 percent of the lump sum price upon completion of 80 percent of the original total Contract Award amount.
1-08.4 Prosecution of Work
The Contractor shall begin Work within 21 calendar days from the date of execution of the Contract by the Contracting Agency, unless otherwise approved in writing. The Contractor shall diligently pursue the Work to the Physical Completion Date within the time specified in the Contract. Voluntary shutdown or slowing of operations by the Contractor shall not relieve the Contractor of the responsibility to complete the Work within the time(s) specified in the Contract. When shown in the Plans, the first order of work shall be the installation of high visibility fencing to delineate all areas for protection or restoration, as described in the Contract. Installation of high visibility fencing adjacent to the roadway shall occur after the placement of all necessary signs and traffic control devices in accordance with Section
1-10.1(2) Upon construction of the fencing, the Contractor shall request the Engineer to
inspect the fence. No other work shall be performed on the site until the Contracting Agency has accepted the installation of high visibility fencing, as described in the Contract.
1-08.5 Time for Completion
The Contractor shall complete all physical Contract Work within the number of “working days” stated in the Contract Provisions or as extended by the Engineer in accordance with Section 1-08.8 . Every day will be counted as a “working day” unless it is a nonworking day or an Engineer determined unworkable day. A nonworking day is defined as a Saturday, a Sunday, a whole or half day on which the Contract specifically prohibits Work on the critical path of the Contractor’s approved progress schedule, or one of these holidays: January 1, the third Monday of January, the third Monday of February, Memorial Day, June 19, July 4, Labor Day, November 11, Thanksgiving Day, the day after Thanksgiving, and Christmas Day. When any of these holidays fall on a Sunday, the following Monday
1-08 Prosecution and Progress
M 41-10 Page 1-113shall be counted a nonworking day. When the holiday falls on a Saturday, the preceding Friday shall be counted a nonworking day. The days between December 25 and January 1 will be classified as nonworking days. An unworkable day is defined as a half or whole day the Engineer declares to be unworkable because of weather or conditions caused by the weather that prevents satisfactory and timely performance of the Work shown on the critical path of the Contractor’s approved progress schedule. Other conditions beyond the control of the Contractor may qualify for an extension of time in accordance with Section 1-08.8 . Contract time shall begin on the first working day following the 21st calendar day after the date the Contracting Agency executes the Contract. If the Contractor starts Work on the project at an earlier date, then Contract time shall begin on the first working day when on-site Work begins. The Contract Provisions may specify another starting date for Contract time, in which case, time will begin on the starting date specified. Each working day shall be charged to the Contract as it occurs, until the Contract Work is physically complete. If Substantial Completion has been granted and all the authorized working days have been used, charging of working days will cease. By each Thursday at 5:00 P.M., the Engineer will provide the Contractor a statement that shows the number of working days: (1) charged to the Contract the week before; (2) specified for the Physical Completion of the Contract; and (3) remaining for the Physical Completion of the Contract. The statement will also show the nonworking days and all half or whole days the Engineer declares as unworkable. The statement will be identified as a Written Determination by the Engineer. If the Contractor does not agree with the Written Determination of working days, the Contractor shall pursue the protest procedures in accordance with Section 1-04.5 . By failing to follow the procedures of Section 1-04.5 , the Contractor shall be deemed as having accepted the statement as correct. The Engineer will give the Contractor written notice of the Physical Completion Date for all Work the Contract requires. That date shall constitute the Physical Completion Date of the Contract but shall not imply the Secretary’s acceptance of the Work or the Contract. The Engineer will give the Contractor written notice of the Completion Date of the Contract after all the Contractor’s obligations under the Contract have been performed by the Contractor. The following events must occur before the Completion Date can be established:
1.The physical Work on the project must be complete; and
2.The Contractor must furnish all documentation required by the Contract and required by law, to allow the Contracting Agency to process final acceptance of the Contract. The following documents must be received by the Engineer prior to establishing a Completion Date:
a.Certified Payrolls
b.Material Acceptance Certification Documents
c.Monthly Reports of Amounts Paid as MBE/WBE Participants, or Monthly Reports of Amounts Credited as DBE Participation, as required by the Contract Provisions
d.Final Contract Voucher Certification
e.Copies of the approved “Affidavit of Prevailing Wages Paid” for the Contractor and all Subcontractors
f.A copy of the Notice of Termination sent to the Washington State Department of Ecology (Ecology); the elapse of 30 calendar days from the date of receipt of the Notice of Termination by Ecology; and no rejection of the Notice of Termination by Ecology. This requirement will not apply if the Construction Stormwater General Permit is transferred back to the Contracting Agency in accordance with Section 8-01.3(16) . Prosecution and Progress 1-08 Page 1-114 M 41-101-08.6 Suspension of Work The Engineer may order suspension of all or any part of the Work if:
1.Unsuitable weather prevents satisfactory and timely performance of the Work; or
2.The Contractor does not comply with the Contract; or
3.It is in the public interest. When ordered by the Engineer to suspend or resume Work, the Contractor shall do so immediately. If the Work is suspended for reason (1) above, the period of Work stoppage will be counted as unworkable days. But if the Engineer believes the Contractor should have completed the suspended Work before the suspension, all or part of the suspension period may be counted as working days. The Engineer will set the number of unworkable days (or parts of days) by deciding how long the suspension delayed the entire project. If the Work is suspended for reason (2) above, the period of Work stoppage will be counted as working days. The lost Work time, however, shall not relieve the Contractor from the Contract responsibility. If the performance of all or any part of the Work is suspended, delayed, or interrupted for an unreasonable period of time by an act of the Contracting Agency in the administration of the Contract, or by failure to act within the time specified in the Contract (or if no time is specified, within a reasonable time), the Engineer will make an adjustment for increases in the cost or time for the performance of the Contract (excluding profit) necessarily caused by the suspension, delay, or interruption. However, no adjustment will be made for suspensions, delays, or interruptions if (1) the performance would have been suspended, delayed, or interrupted by other causes, including the fault or negligence of the Contractor, or (2) an equitable adjustment is provided for or excluded under another provision of the Contract. If the Contractor believes that the performance of the Work is suspended, delayed, or interrupted for an unreasonable period of time and such suspension, delay, or interruption is the responsibility of the Contracting Agency, the Contractor shall immediately submit a written notice of protest to the Engineer within 14 calendar days of the start of the suspension delay or interruption requesting an equitable adjustment. No adjustment shall be allowed for costs incurred more than 14 calendar days before the date the Engineer receives the Contractor’s written notice of protest. The Engineer will issue a Written Determination to the Contractor and adjust payment and time in accordance with this section, if warranted. If the Contractor does not agree with the Written Determination, then the Contractor shall pursue the protest procedures in accordance with Section
1-04.5 The Contractor shall keep full and complete records of the costs and additional
time of such suspension, delay, or interruption and shall permit the Engineer to have access to those records and any other records as may be deemed necessary by the Engineer to assist in evaluating the protest. The Engineer will determine if an equitable adjustment in cost or time is due as provided in this section. The equitable adjustment for increase in costs, if due, shall be subject to the limitations provided in Section 1-09.4 , provided that no profit of any kind will be allowed on increases in costs caused by the suspension, delay, or interruption. Request for extensions of time will be evaluated in accordance with Section 1-08.8 . The Engineer’s determination as to whether an adjustment should be made will be final as provided in Section 1-05.1 . By failing to follow procedures of Section 1-04.5 , the Contractor completely waives claims for protested Work.
1-08 Prosecution and Progress
M 41-10 Page 1-1151-08.7 Maintenance During Suspension Before and during suspensions (as described in Section 1-08.6 ) the Contractor shall protect the Work from damage or deterioration. Suspension shall not relieve the Contractor from anything the Contract requires unless this section states otherwise. At no expense to the Contracting Agency, the Contractor shall provide through the construction area safe, smooth, and unobstructed roadways and pedestrian access routes for public use during the suspension (as required in Section 1-07.23 or the Special Provisions). This may include a temporary road, alternative pedestrian access route or detour. If the Engineer determines that the Contractor failed to pursue the Work diligently before the suspension, or failed to comply with the Contract or orders, then the Contractor shall maintain the temporary Roadway in use during suspension. In this case, the Contractor shall bear the maintenance costs. If the Contractor fails to maintain the temporary Roadway, the Contracting Agency will do the Work and deduct all resulting costs from payments due to the Contractor. If the Engineer determines that the Contractor has pursued the Work diligently before the suspension, then the Contracting Agency will maintain the temporary Roadway (and bear its cost). This Contracting Agency-provided maintenance work will include only routine maintenance of:
1.The Traveled Way, Auxiliary Lanes, Shoulders, and detour surface;
2.Roadway drainage along and under the traveled Roadway or detour; and
3.All barricades, signs, and lights needed for directing traffic through the temporary Roadway or detour in the construction area. The Contractor shall protect and maintain all other Work in areas not used by traffic. All costs associated with protecting and maintaining such Work shall be the responsibility of the Contractor. After any suspension during which the Contracting Agency has done the routine maintenance, the Contractor shall accept the traveled Roadway or detour as is when Work resumes. The Contractor shall make no claim against the Contracting Agency for the condition of the Roadway or detour. After any suspension, the Contractor shall resume all responsibilities the Contract assigns for the Work.
1-08.8 Extensions of Time
The Contractor shall submit requests for time extensions to the Engineer in writing no later than 14 calendar days after the delay occurs. No adjustment shall be allowed for contract time incurred more than 14 calendar days prior to the date the Engineer receives the Contractor’s written request of time extension. The requests for time extension shall be limited to the effect on the critical path of the Contractor’s approved schedule attributable to the change or event giving rise to the request. The Engineer may request additional information regarding the request, to ascertain the basis and amount of the time requested. In addition, the Engineer may request, and the Contractor shall provide within 14 calendar days after Engineer’s request, an updated schedule that supports the request and demonstrates that the change or event: (1) had a specific impact on the critical path, and except in cases of concurrent delay, was the sole cause of such impact, and (2) could not have been avoided by resequencing of the Work or by using other reasonable alternatives. Contractor may request additional time to respond to the supplemental information requested by the Engineer. If a request combined with previous extension requests, equals 20 percent or more of the original Contract time then the Contractor’s letter of request must bear consent of Surety. In evaluating requests for time extension, the Engineer will consider how well the Contractor Prosecution and Progress 1-08 Page 1-116 M 41-10used the time from Contract execution up to the point of the delay and the effect the delay had on any completion times included in the Special Provisions. The Engineer will evaluate and issue a Written Determination within 21 calendar days of receiving the request or supplemental information. The authorized time for Physical Completion will be extended for a period equal to the time the Engineer determines the Work was delayed because of:
1.Adverse weather causing the time requested to be unworkable, provided that the Engineer had not already declared the time to be unworkable and the Contractor has filed a written protest according to Section 1-08.5 .
2.Actions, neglect, or default of the Contracting Agency, its officers, or employees, or of other contractors employed by the Contracting Agency.
3.Fire or other casualty for which the Contractor is not responsible.
4.Strikes.
5.Other conditions for which these Specifications permit time extensions such as:
a.In Section 1-04.4 if a change increases the time to do any of the Work including unchanged Work.
b.In Section 1-04.5 if increased time is part of a protest that is found to be a valid protest.
c.In Section 1-04.7 if a changed condition is determined to exist that caused a delay in completing the Contract.
d.In Section 1-05.3 if the Contracting Agency does not approve properly prepared and acceptable drawings within the time defined in Section 1-05.3 .
e.In Section 1-07.13 if the performance of the Work is delayed as a result of damage by others.
f.In Section 1-07.17 if the removal or the relocation of a utility by forces other than the Contractor caused a delay.
g.In Section 1-07.24 if a delay results from all the Right of Way necessary for the construction not being purchased and the Special Provisions does not make specific provisions regarding unpurchased Right of Way.
h.In Section 1-07.28(4) if the Railroad Company changes railroad restrictions.
i.In Section 1-08.6 if the performance of the Work is suspended, delayed, or interrupted for an unreasonable period of time that proves to be the responsibility of the Contracting Agency.
j.In Section 1-09.11 if a dispute or claim also involves a delay in completing the Contract and the dispute or claim proves to be valid.
k.In Section 1-09.6 for Work performed on a force account basis.
6.If the actual quantity of Work performed for a Bid item was more than the original Plan quantity and increased the duration of a critical activity. Extensions of time will be limited to only that quantity exceeding the original Plan quantity.
7.Exceptional causes not specifically identified in items 1 through 6, provided the request letter proves the Contractor had no control over the cause of the delay and could have done nothing to avoid or shorten it. Working days added to the Contract by time extensions, when time has overran, shall only apply to days on which liquidated damages or direct engineering have been charged, such as the following: If Substantial Completion has been granted prior to all of the authorized working days being used, then the number of days in the time extension will eliminate an equal
1-08 Prosecution and Progress
M 41-10 Page 1-117number of days on which direct engineering charges have accrued. If the Substantial Completion Date is established after all of the authorized working days have been used, then the number of days in the time extension will eliminate an equal number of days on which liquidated damages or direct engineering charges have accrued. The Engineer will not allow a time extension for causes listed above if it resulted from the Contractor’s default, collusion, action or inaction, or failure to comply with the Contract. The Contracting Agency considers the time specified in the Special Provisions as sufficient to do all the Work. For this reason, the Contracting Agency will not grant a time extension for:
1.Failure to obtain all materials and workers unless the failure was the result of exceptional causes as provided above in Subsection 7;
2.Changes, protests, increased quantities, or changed conditions ( Section 1-04 ) that do not delay the completion of the Contract or prove to be an invalid or inappropriate time extension request;
3.Delays caused by nonapproval of drawings or plans as provided in Section 1-05.3 ;
4.Rejection of faulty or inappropriate equipment as provided in Section 1-05.9 ;
5.Correction of thickness deficiency as provided in Section 5-05.5(1)B . 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 . By failing to follow the procedures of Section 1-04.5 , the Contractor completely waives claims for protested Work.
1-08.9 Liquidated Damages
Time is of the essence of the Contract. Delays inconvenience the traveling public, obstruct traffic, interfere with and delay commerce, and increase risk to Highway users. Delays also cost tax payers undue sums of money, adding time needed for administration, engineering, inspection, and supervision. Accordingly, the Contractor agrees:
1.To pay the liquidated damages identified in the Special Provisions for each working day beyond the number of working days established for Physical Completion, and
2.To authorize the Engineer to deduct these liquidated damages from any money due or coming due to the Contractor. When the Contract Work has progressed to the extent that the Contracting Agency has full use and benefit of the facilities, both from the operational and safety standpoint, all the initial plantings are completed and only minor incidental Work, replacement of temporary substitute facilities, plant establishment periods, or correction or repair remains to physically complete the total Contract, the Engineer may determine the Contract Work is substantially complete. The Engineer will notify the Contractor in writing of the Substantial Completion Date. For overruns in Contract time occurring after the date so established, liquidated damages identified in the Special Provisions will not apply. For overruns in Contract time occurring after the Substantial Completion Date, liquidated damages shall be assessed on the basis of direct engineering and related costs assignable to the project until the actual Physical Completion Date of all the Contract Work. The Contractor shall complete the remaining Work as promptly as possible. Upon request by the Engineer, the Contractor shall furnish a written schedule for completing the physical Work on the Contract. Liquidated damages will not be assessed for days for which an extension of time is granted. No deduction or payment of liquidated damages will, in any degree, release the Contractor from further obligations and liabilities to complete the entire Contract. Prosecution and Progress 1-08 Page 1-118 M 41-101-08.10 Termination of Contract
1-08.10(1) Termination for Default
The Contracting Agency may terminate the Contract upon the occurrence of one or more or the following events:
1.If the Contractor fails to supply sufficient skilled workers or suitable materials or equipment;
2.If the Contractor refuses or fails to prosecute the Work with such diligence as will ensure its Physical Completion within the original Physical Completion time plus extensions of time which may have been granted to the Contractor by change order;
3.If the Contractor is adjudged bankrupt or insolvent, or makes a general assignment for the benefit of creditors, or if the Contractor or a third party files a petition to take advantage of a debtor’s act or to reorganize under the bankruptcy or similar laws concerning the Contractor, or if a trustee or receiver is appointed for the Contractor or for any of the Contractor’s property on account of the Contractor’s insolvency, and the Contractor or its successor in interest does not provide adequate assurance of future performance in accordance with the Contract within 15 calendar days of receipt of a request for assurance from the Contracting Agency;
4.If the Contractor disregards laws, ordinances, rules, codes, regulations, orders or similar requirements of any public entity having jurisdiction;
5.If the Contractor disregards the authority of the Contracting Agency;
6.If the Contractor performs Work which deviates from the Contract, and neglects or refuses to correct rejected Work; or
7.If the Contractor otherwise violates in any material way any provisions or requirements of the Contract. Once the Contracting Agency determines that sufficient cause exists to terminate the Contract, written notice shall be given to the Contractor and its Surety indicating that the Contractor is in breach of the Contract and that the Contractor is to remedy the breach within 15 calendar days after the notice is sent. In case of an emergency such as potential damage to life or property, the response time to remedy the breach after the notice may be shortened. If the remedy does not take place to the satisfaction of the Contracting Agency, the Engineer may, by serving written notice to the Contractor and Surety either:
1.Transfer the performance of the Work from the Contractor to the Surety; or
2.Terminate the Contract and at the Contracting Agency’s option prosecute it to completion by contract or otherwise. Extra costs or damages to the Contracting Agency shall be deducted from money due or coming due to the Contractor under the Contract. If the Engineer elects to pursue one remedy, it will not bar the Engineer from pursuing other remedies on the same or subsequent breaches. Upon receipt of a notice that the Work is being transferred to the Surety, the Surety shall enter upon the premises and take possession of all materials, tools, and appliances for the purpose of completing the Work included under the Contract and employ by contract or otherwise any person or persons satisfactory to the Engineer to finish the Work and provide the materials without termination of the Contract. Such employment shall not relieve the Surety of its obligations under the Contract and the bond. If there is a transfer to the Surety, payments on estimates covering Work subsequent to the transfer shall be made to the extent permitted under law to the Surety or its agent without any right of the Contractor to make any claim.
1-08 Prosecution and Progress
M 41-10 Page 1-119If the Engineer terminates the Contract or provides such sufficiency of labor or materials as required to complete the Work, the Contractor shall not be entitled to receive any further payments on the Contract until all the Work contemplated by the Contract has been fully performed. The Contractor shall bear any extra expenses incurred by the Contracting Agency in completing the Work, including all increased costs for completing the Work, and all damages sustained, or which may be sustained, by the Contracting Agency by reason of such refusal, neglect, failure, or discontinuance of Work by the Contractor. If liquidated damages are provided in the Contract, the Contractor shall be liable for such liquidated damages until such reasonable time as may be required for Physical Completion of the Work. After all the Work contemplated by the Contract has been completed, the Engineer will calculate the total expenses and damages for the completed Work. If the total expenses and damages are less than any unpaid balance due the Contractor, the excess will be paid by the Contracting Agency to the Contractor. If the total expenses and damages exceed the unpaid balance, the Contractor and the Surety shall be jointly and severally liable to the Contracting Agency and shall pay the difference to the Contracting Agency on demand. In exercising the Contracting Agency’s right to prosecute the Physical Completion of the Work, the Contracting Agency shall have the right to exercise its sole discretion as to the manner, method, and reasonableness of the costs of completing the Work. In the event that the Contracting Agency takes Bids for remedial Work or Physical Completion of the project, the Contractor shall not be eligible for the Award of such Contracts. In the event the Contract is terminated, the termination shall not affect any rights of the Contracting Agency against the Contractor. The rights and remedies of the Contracting Agency under the Termination Clause are in addition to any other rights and remedies provided by law or under this Contract. Any retention or payment of monies to the Contractor by the Contracting Agency will not release the Contractor from liability. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to Termination for Public Convenience in Section 1-08.10(2) . This shall include termination for default because of failure to prosecute the Work, and the delay was found to be excusable under the provisions of Section 1-08.8 .
1-08.10(2) Termination for Public Convenience
The Engineer may terminate the Contract in whole, or from time to time in part, whenever:
1.The Contractor is prevented from proceeding with the Work as a direct result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense; or an Executive Order of the President or Governor of the State with respect to the preservation of energy resources;
2.The Contractor is prevented from proceeding with the Work by reason of a preliminary, special, or permanent restraining order of a court of competent jurisdiction where the issuance of such restraining order is primarily caused by acts or omissions of persons or agencies other than the Contractor; or
3.The Engineer determines that such termination is in the best interests of the Contracting Agency.
1-08.10(3) Termination for Public Convenience Payment Request
After receipt of Termination for Public Convenience as provided in Section 1-08.10(2) , the Contractor shall submit to the Contracting Agency a request for costs associated with the termination. The request shall be prepared in accordance with the claim procedures outlined in Sections 1-09.11 and 1-09.12 . The request shall be submitted promptly but in no event later than 90 calendar days from the effective date of termination. Prosecution and Progress 1-08 Page 1-120 M 41-10The Contractor agrees to make all records available to the extent deemed necessary by the Engineer to verify the costs in the Contractor’s payment request.
1-08.10(4) Payment for Termination for Public Convenience
Whenever the Contract is terminated in accordance with Section 1-08.10(2) , payment will be made in accordance with Section 1-09.5 for the actual Work performed. If the Contracting Agency and the Contractor cannot agree as to the proper amount of payment, then the matter will be resolved as outlined in Section 1-09.13 except that, if the termination occurs because of the issuance of a restraining order as provided in Section 1-08.10(2) , the matter will be resolved through mandatory and binding arbitration as described in Sections 1-09.13(3)A and B, regardless of the amount of the claim.
1-08.10(5) Responsibility of the Contractor and Surety
Termination of a Contract shall not relieve the Contractor of any responsibilities under the Contract for Work performed. Nor shall termination of the Contract relieve the Surety or Sureties of obligations under the Contract Bond or retainage bond for Work performed.
1-08 Prosecution and Progress
Source: Washington Standard Specifications for Road, Bridge, and Municipal Construction, 2024 Edition. Pages 156–172 of 1,151.