M 41-10 Page 1-121 Measurement and Payment 1-091-09 Measurement and Payment
1-09.1 Measurement of Quantities
In measuring all acceptably completed Bid items of Work, the Engineer will:
1.Use United States standard measure;
2.Make all measurements as described in this section, unless individual Specifications require otherwise;
3.Follow methods generally recognized as conforming to good engineering practice;
4.Conform to the usual practice of the Contracting Agency by carrying measurements and computations to the proper significant figure or fraction of units for each item; and
5.Measure horizontally or vertically (unless otherwise specified). The terms listed below shall be defined as follows in all measurements under this section: “Lump Sum” (when used as an item of payment): complete payment for the Work described for that item in the Contract. “Gauge” (in measurement of plates): the U.S. Standard Gauge. “Gauge” (in measurement of galvanized sheets used to manufacture corrugated metal pipe, metal plate pipe culverts and arches, and metal cribbing): that specified in AASHTO M 36, M 167, M 196, M 197, or M 219. “Gauge” (in measurement of wire): that specified in AASHTO M 336M. “Ton”: 2,000 pounds of avoirdupois weight. Items of payment that have “Lump Sum” or “Force Account” in the Bid item of Work shall have no specific unit of measurement requirement. For each basis of measurement listed below, the Engineer will use the method of measurement described. For Bid items or materials measured on the basis of: Hour – Measured for each hour that Work is actually performed. Portions of an hour will be rounded up to a half hour. Square Yard or Square Foot – The measurement shall be a calculation from the neat dimensions shown in the Plans or as altered by the Engineer. If there is an exception within the measured area where the item of Work is not performed (such as a drainage vault within a measured sidewalk) and if the exception area is greater than 9 square feet, then the area of the exception will be subtracted from the payment area calculated from the neat dimensions. Linear Foot – A length measured along an element unless the Plans require otherwise. Weight – Weighed as required in Section 1-09.2 . Volume (of excavation and embankment) – Measured by the average-end-area method or by the finite element analysis method utilizing digital terrain modeling techniques. All or some computations may be based on ground elevations and other data derived photogrammetrically. The Engineer may correct for curvature. Volume (in the hauling vehicle) – Measured at the point of delivery. Hauling vehicles may be of any size or type the Engineer approves provided that the body is of such shape that the actual contents may be readily and accurately determined. If the Engineer requires, the Contractor shall level loads at the delivery point to facilitate measurement. For each item listed below, the Engineer will use the method of measurement described. Structures – Measured on the neat lines shown in the Plans or as altered by the Engineer. When a complete Structure or structural unit is specified as the unit of measurement, the unit shall include all fittings and accessories. Page 1-122 M 41-10
1-09 Measurement and PaymentTimber – Measured by the thousand board feet (MBM) actually used in the Structure.
Measurements will be based on nominal widths and thicknesses and the extreme length of each piece. Standard Manufactured Items (fence, wire, plates, rolled shapes, pipe conduit, etc., when specified) – Measured by the manufacturer’s identification of gage, unit weight, section dimension, etc. The Engineer will accept manufacturing tolerances set by each industry unless cited Specifications require more stringent tolerances. Cement – Measured by the pound, ton, or sack. A sack shall be 94 pounds.Asphalt – Measured by the gallon or ton. If measured by gallon, measurement will be made at 60 F (or will be corrected to the volume at 60 F in keeping with ASTM D1250). If shipped by rail, truck, or transport, measurement will be by net certified scale masses or certified volumes (corrected for material lost en route or not actually incorporated into the Work). No measurement will be made for: 1.W ork performed or materials placed outside lines shown in the Plans or set by the Engineer; 2.M aterials wasted, used, or disposed of in a manner contrary to the Contract; 3.R ejected materials (including those rejected after placement if the rejection resulted from the Contractor’s failure to comply with the Contract); 4.H auling and disposing of rejected materials; 5.M aterial remaining on hand after the Work is completed, except as provided in Sections 1-09.5 and 1-09.10; or 6.O ther Work or material contrary to the Contract Provisions.
1-09.2 Weighing Equipment
1-09.2(1) General Requirements for Weighing Equipment
Unless specified otherwise, all construction materials to be proportioned or measured and paid for by weight shall be weighed on a scale. Scales – Scales shall: 1.B e accurate to within 0.5 percent of the correct weight throughout the range of use; 2.N ot include spring balances; 3.I nclude beams, dials, or other reliable readout equipment; 4.B e built to prevent scale parts from binding, vibrating, or being displaced and to protect all working parts from falling material, wind, and weather; and 5.B e carefully maintained, with bunkers and platforms kept clear of accumulated materials that could cause errors and with knife edges given extra care and protection. Scale Operations – “Contractor-provided scale operations” are defined as operations where a scale is set up by the Contractor specifically for the project and most, if not all, material weighed on the scale is utilized for Contract Work. In this situation, the Contractor shall provide a person to operate the project scale, generate E-tickets, perform scale checks and prepare reports. “Commercial scale operations” include the use of established scales used to sell materials to the public on a regular basis. In addition, for the purposes of this Specification, all batch, hopper, and belt scales are considered to be commercial scales. When a commercial scale is used as the project scale, the Contractor may utilize a commercial scale operator provided it is at no additional cost to the Contracting Agency. M 41-10 Page 1-123 Measurement and Payment 1-09In addition, the Contractor shall ensure that: 1.T he Engineer is allowed to observe the weighing operation and check the daily scale weight record; 2.S cale verification checks are performed at the direction of the Contracting Agency (see Section 1-09.2(5) ); 3.S everal times each day, the scale operator records and makes certain the platform scale balances and returns to zero when the load is removed; and 4.T est results and daily summary reports for each day’s hauling operations are provided to the Engineer daily. Trucks and E-Tickets – Each truck to be weighed shall bear a unique identification number. This number shall be legible and in plain view of the scale operator. The Contracting Agency will provide item quantity tickets for scales that are not self-printing. The Contractor shall provide E-tickets for all weighed materials. All E-tickets shall, at a minimum, contain the following information: 1.D ate of haul; 2.C ontract number; 3.C ontract unit Bid item; 4.U nit of measure; 5.I dentification number of hauling vehicle; and 6.W eight delivered: a.N et weight in the case of batch and hopper scales. b.G ross weight, tare (a.m. and p.m. minimum) and net weight in the case of platform scales (tare may be omitted if a tare beam is used). c.A pproximate load out weight in the case of belt conveyor scales. E-tickets shall be uploaded to the designated site so that they can be accessed by thematerial receiver at the material delivery point. The material delivery point is definedas the location where the material is incorporated into the permanent Work. TheContractor’s representative shall make report summaries available to the Engineer’sdesignated receiver, not later than the end of shift, for reconciliation. E-tickets for loadsnot verified as delivered will receive no pay.
1-09.2(1)A E lectronic Delivery Management System (E-Ticketing)
No fewer than 30 days prior to delivery or placement activities, the Contractor shall submit a Type 2 Working Drawing to the Engineer detailing all E-Ticketing Systems (ETS) used to provide the required information. It is recognized that multiple systems may be used to accommodate individual Contractors and Material supplier capabilities. The Working Drawings shall explain how partial loads will be tracked, and include contingency plans for lost internet connectivity and/or phone reception. The Contractor shall provide on-site technical assistance and training during the initial setup to all parties requiring access to the e-ticket information. The Contractor shall provide ETS support as necessary during the Work to ensure effective ongoing utilization.
1-09.2(1)A1 E quipment
The Contractor shall demonstrate that the ETS can provide the following: 1.The ETS shall generate an E-ticket in PDF format meeting the requirements of Section
1-09.2(1)A2 The information shall be immediately uploaded to a designated site sothe information can be accessed by the Inspector located at the material delivery site.
2.T he ETS shall be accessible by real-time monitoring with a mobile communication device such as a tablet or smartphone. Page 1-124 M 41-10
1-09 Measurement and PaymentThe Material Source site (point of load out) shall have a reliable, stable internet
connection, with a local Wi-Fi device (hot spot) in areas with poor or no cell service. The Contractor shall install and operate equipment in accordance with their accepted ETS. The Type 2 Working Drawing shall identify an alternative method for manually capturing and electronically delivering data if internet access and/or cell phone service is temporarily unavailable at the load out site.
1-09.2(1)A2 E- Tickets
The E-Tickets must provide, at a minimum, the information required in Section 1-09.2(1) for truck weight measurement and Section 6-02.3(5)B for concrete delivery.
1-09.2(1)A3 D aily Summary Report
The Contractor shall provide to the Engineer a means in which to gather report summaries using mobile communication devices. The following summary of information shall be provided to the Engineer electronically, in a file format that cannot be edited, at the end of the days hauling operation or as agreed to by the Project Engineer. The summary report shall include: 1.F or each Material: a.List o f Individual Loads including: i.C ontractor Name and Material Producer ii.P roject Number and County iii.T ruck Number iv.N et Weight for Payment (nearest 0.1 tons) or volume for payment v.D ate Placed vi.T ime Loaded 2.F or each Bid Item: a.T otal Quantity for Payment (weight or volume)
1-09.2(2) Specific Requirements for Batching Scales
Each batching scale shall be designed to support a weighing container. The arrangement shall make it convenient for the operator to remove material from the weighing container while watching readout devices. A weighing container mounted on a platform scale shall have its center of gravity directly over the platform centerline. Batching scales used for concrete or hot mix asphalt shall not be used for batching other materials. Readout devices used for batching or hopper scales shall be marked at intervals evenly spaced throughout and shall be based on the scale’s nominal rated capacity. These intervals shall not exceed one-tenth of 1 percent of the nominal rated capacity. Before use at a new site and then at 6-month intervals, all batching and hopper scales shall be: approved under rules of the Weights and Measures Section of the Washington State Department of Agriculture or serviced and tested with at least 10,000 pounds by an agent of its manufacturer. In each case, the Contractor shall provide the Engineer with a copy of the final test results.
1-09.2(3) Specific Requirements for Platform Scales
Each platform scale shall be able to weigh the entire hauling vehicle or combination of connected vehicles at one time. No part of the vehicle or vehicle combination will be permitted off the platform as it is weighed. A tare weight shall be taken of each hauling vehicle at least once daily. Platform scales shall be installed and maintained with the platform level and with rigid bulkheads at each end to prevent binding or shifting. The readout device shall be marked M 41-10 Page 1-125 Measurement and Payment 1-09at intervals of no more than 40 pounds. Test records shall show results to the nearest 20 pounds. During weighing operations, weights shall be read and recorded to the nearest 100 pounds. Before use at a new site and then at 6-month intervals, platform scales shall be: approved under rules of the Washington State Department of Agriculture’s Weights and Measures Section, or serviced and tested with at least 10,000 pounds by an agent of its manufacturer. In each case, the Contractor shall provide the Engineer with a copy of the final test results.
1-09.2(4) Specific Requirements for Belt Conveyor Scales
The Engineer may approve conveyor-belt weighing of untreated materials if the method and device meet all general requirements for weighing equipment. The recording tape, odometer, totalizer, calibration adjustment, and clock-time imprinter shall be kept locked and the Engineer shall retain all keys. All belt-conveyor scales shall comply with the requirements for Belt-Conveyor Scales in the National Institute of Standards and Technology (NIST) Handbook No. 44, except where these Specifications modify those requirements. A static load test shall be made: each day after the belt-conveyor has run continuously for about 30 minutes, and again, immediately after the air temperature changes significantly. If the static load test reveals a need for adjustment, the Contractor shall perform a chain test. The Contractor shall make the computation of the test chain calibration, the calibration procedures and results, and related records available for the Engineer’s review. The test chain shall be clearly marked with its calibration, carried in a suitable container, and kept immediately available for testing.
1-09.2(5) M easurement
Scale Verification Checks – The Engineer will verify the accuracy of each batch, hopper, or platform scale. Verification checks for “commercial scale operations” will be at the option of the Engineer. Verification checks for “Contractor-provided scale operations” will be twice per project per year with one check near the beginning of the scale utilization and one near the end of scale utilization. Verification checks may not be routinely conducted for weighed material, whose proposal quantity multiplied by the unit Bid price, has a value less than $20,000. The verification will consist of one of the following methods and be at the Contractor’s option: 1.W eigh a loaded truck on a separate certified platform scale designated by the Contractor, for the purpose of scale verification. 2.W eigh a vehicle that weighs at least 10,000 pounds on a separate certified scale and then check the project scale with it. 3.E stablish a certified fixed load weighing at least 10,000 pounds as a check-weight. The certification shall consist of an affidavit affirming the correct weight of the fixedload. Should the scale verification check reveal a weight difference of more than 0.5 percent, a second scale verification check shall be performed immediately. If the weight differences of both comparison checks exceed the 0.5-percent limit and the scale has been overweighing, the Contractor shall immediately stop weighing and the scale shall be recertified at the Contractor’s expense. If the weight difference of both comparison checks exceed the 0.5 percent limit and the scale is underweighing, it shall be adjusted immediately. Contractor will not be compensated for resulting losses from under weighing. Belt Scales – To test the accuracy of a belt-conveyor scale, the Contractor shall weigh five or more payloads from sequential hauling units and compare these weights with weights of the same payloads taken on a separate certified platform scale. If the test results Page 1-126 M 41-10
1-09 Measurement and Paymentfluctuate, the Engineer may require more than five check loads. Conveyor weights will
be based on tonnage values taken from the sealed odometer at the beginning and end of each check period. If scale verification checks show the scale has been under weighing, it shall be adjusted immediately. The Contractor shall not be compensated for resulting losses from under weighing. If scale verification checks show the scale has been overweighing, its operation will cease immediately until adjusted.
1-09.2(6) Payment
Unless specified otherwise, the Contracting Agency will pay for no materials received by weight unless they have been weighed as required in this section or as required by another method the Engineer has approved in writing. The Contractor shall not be compensated for resulting losses from under weighing that is revealed by scale verification checks. If scale verification checks reveal that the scale is overweighing, then payment for all material weighed since the last valid scale verification check will be adjusted. The Contracting Agency will calculate the combined weight of all materials weighed after the last verification check showing accurate results. This combined weight will then be reduced for payment by the percentage of scale error that exceeds 0.5 percent unless the Contractor demonstrates to the satisfaction of the Engineer that the defect in the scale was present for a lesser period of time. Unit Contract prices for the various pay items of the project cover all costs related to weighing and proportioning materials for payment. These costs include but are not limited to: 1.F urnishing, installing, certifying, and maintaining scales; 2.P roviding a weigher to operate a Contractor-provided scale; 3.P roviding a weigher to operate a commercial scale, if necessary; 4.P roviding self-printing tickets, if necessary; 5.R erouting a truck for verification weighing; 6.Assisting the E ngineer with scale verification checks; 7.O ther costs associated with meeting the requirements of this section. All costs to comply with this Section, unless otherwise stated, are incidental to the Contract and are the responsibility of the Contractor. The Contractor shall include all related costs in the Bid prices of the Contract.
1-09.3 Scope of Payment
The payment provided for in the Contract shall be full payment to the Contractor for: 1.F urnishing all materials and performing all Work under the Contract (including changes in the work, materials, or Plans) in a complete and acceptable manner; 2.A ll risk, loss, damage, or expense of whatever character arising out of the nature or prosecution of the work; and 3.A ll expense incurred resulting from a suspension or discontinuance of the Work as specified under the Contract. The payment of an estimate or retained percentage shall not relieve the Contractor of the obligation to correct defective Work or materials. Unless the Plans and Special Provisions provide otherwise, the unit Contract prices for the various Bids items shall be full payment for all labor, materials, supplies, equipment, tools, M 41-10 Page 1-127 Measurement and Payment 1-09and all other things required to completely incorporate the item into the Work as though the item were to read “In Place”. If the “Payment” clause in the Specifications, for an item included in the Proposal, covers and considers all Work and material essential to that item, then the Work or materials will not be measured or paid for under any other item that may appear elsewhere in the Proposal or Specifications. Certain payment items appearing in these Specifications contain a fill in indicated by an underbar at the end or within the Payment Item. The Plans and Proposal will include additional information to fill in the underbar, such as: 1.The words “For Structure”, “For Concrete Barrier”, “For Bridge”, etc., with the intent of clarifying specific use of the item; or 2.The words “Site (Site Designation)”, with the intent of clarifying where a specific item of Work is to be performed. 3.Words indicating the type of product to be used. Modification of payment items in this manner shall in no way change the intent of the Specifications relating to these items.
1-09.4 Equitable Adjustment
The equitable adjustment provided for elsewhere in the Contract shall be determined in one or more of the following ways: 1.If the parties are able to agree, the price will be determined by using: a.Unit prices; or b.Other agreed upon prices; 2.If the parties cannot agree, the price will be determined by the Engineer using: a.Unit prices; or b.Other means to establish costs. The following limitations shall apply in determining the amount of the equitable adjustment: 1.The equipment rates shall be actual cost but shall not exceed the rates set forth in the AGC/WSDOT Equipment Rental Agreement i n effect at the time the Work is performed as referred to in Section 1-09.6 , and 2.To the extent that delay or failure of performance was concurrently caused by the Contracting Agency and the Contractor, the Contractor shall be entitled to a time extension for the portion of the delay or failure of performance concurrently caused, provided the Contractor makes such a request pursuant to Section 1-08.8 ; however, the Contractor shall not be entitled to an adjustment in Contract price. 3.No claim for anticipated profits on deleted, terminated, or uncompleted Work will be allowed. 4.No claim for consequential damages of any kind will be allowed.
1-09.5 Deleted or Terminated Work
The Engineer may delete Work by change order as provided in Section 1-04.4 or may terminate the Contract in whole or part as provided in Section 1-08.10(2) . When the Contract is terminated in part, the partial termination shall be treated as a deletion change order for payment purposes under this section. Payment for completed items will be at unit Contract prices. Page 1-128 M 41-10
1-09 Measurement and PaymentWhen an item is deleted in whole or in part by change order or when the Contract is
terminated in whole or in part, payment for deleted or terminated Work will be made as follows: 1.P ayment will be made for the actual number of units of Work completed at the unit Contract prices unless the Engineer determines the unit prices are inappropriate for the Work actually performed. When that determination is made by the Engineer,payment for Work performed will be as mutually agreed. If the parties cannot agreethe Engineer will determine the amount of the equitable adjustment in accordancewith Section 1-09.4 ; 2.P ayment for partially completed lump sum items will be as mutually agreed. If the parties cannot agree, the Engineer will determine the amount of the equitableadjustment in accordance with Section 1-09.4 ; 3.T o the extent not paid for by the Contract prices for the completed units of Work, the Contracting Agency will pay as part of the equitable adjustment those direct costsnecessarily and actually incurred by the Contractor in anticipation of performing theWork that has been deleted or terminated; 4.T he total payment for an item in the case of a deletion or partial termination shall not exceed the Bid price as modified by approved change orders less the estimated cost(including overhead and profit) to complete the Work and less amounts paid to theContractor for the item; 5.T he total payment where the Contract is terminated in its entirety shall not exceed the total Contract price as modified by approved change orders less those amountspaid to the Contractor before the effective date of the termination; and 6.N o claim for damages of any kind or for loss of anticipated profits on deleted or terminated Work will be allowed because of the termination or change order. Contract time shall be adjusted as the parties agree. If the parties cannot agree, the Engineer will determine the equitable adjustment for Contract time. Acceptable materials ordered by the Contractor prior to the date the Work was terminated as provided in Section 1-08.10(2) or deleted as provided in Section 1-04.4 by the Engineer, will either be purchased from the Contractor by the Contracting Agency at the actual cost and shall become the property of the Contracting Agency, or the Contracting Agency will reimburse the Contractor for the actual costs connected with returning these materials to the suppliers.
1-09.6 Force Account
The terms of the Contract or of a change order may call for Work or material to be paid for by force account. If so, then the objective of this Specification is to reimburse the Contractor for all costs associated with the Work, including costs of labor, small tools, supplies, equipment, specialized services, materials, applicable taxes and overhead and to include a profit commensurate with those costs. The amount to be paid shall be determined as described in this section.
1.For Labor – Labor reimbursement calculations shall be based on a “Project Labor List” (List) prepared and submitted by the Contractor and by any subcontractors beforeForce Account work begins. Once a List is approved by the Engineer, it shall be usedto calculate force account labor payment until a new List is submitted and approved.The Engineer may compare the List to payrolls and other documents and may, at any time, require the Contractor to submit a new List. The Contractor may submit a new List at any time without such a requirement. Prior payment calculations shall not beadjusted as a result of a new List. T o be approved, the List must be accurate and meet the requirements of this section. It shall include regular time and overtime rates for all employees (or work M 41-10 Page 1-129 Measurement and Payment 1-09classifications) expected to participate in force account Work. The rates shall include the basic wage and fringe benefits, the current rates for Federal Insurance Compensation Act (FICA), Federal Unemployment Tax Act (FUTA) and State Unemployment Tax Act (SUTA), the company’s present rates for Medical Aid and Industrial Insurance premiums and the planned payments for travel and per diem compensation. I n the event that an acceptable initial List or requested revised List is not received by the time that force account calculations are begun, the Engineer will develop a List unilaterally, utilizing the best data available, that will be used until a Contractor’s List is received and approved. Again, prior calculations, prepared using the Engineer’s List, will not be revised as a result of differences with the Contractor’s List. I n addition to compensation for direct labor costs defined above, the Contracting Agency will pay Contractor 29 percent of the sum of the costs calculated for labor reimbursement to cover project overhead, general company overhead, profit, bonding, insurance required by Sections 1-07.10 and 1-07.18, Business & Occupation tax, and other costs incurred, except paid sick leave. The Contracting Agency will pay the Contractor an additional 2 percent of the sum of the costs calculated for labor reimbursement to cover the cost of paid sick leave. This amount will include all costs of safety training and health tests, but will not include such costs for unique force account Work that is different from typical Work and which could not have been anticipated at time of Bid.
2.For Materials – The Contracting Agency will reimburse invoice cost for materials. For the purpose of this provision, “Materials” shall include those items incorporatedinto the Work, supplies used during the Work and items consumed. This cost shallinclude freight and handling charges and applicable taxes. Before Work is started, theEngineer may require the Contractor to obtain multiple quotations for the materialsto be utilized and select the vendor with prices and terms most advantageous to the Contracting Agency. T he Contracting Agency will provide a list of the types and quantities of materials witnessed by the Contracting Agency as being utilized in force account Work. The listwill be furnished promptly after the material is incorporated, on a daily basis unlessagreed otherwise. The Contractor may propose corrections to the list and will supply prices for the materials and other costs and return the list to the Contracting Agency.To support the prices, the Contractor shall attach valid copies of vendor invoices. If invoices are not available for materials from the Contractor’s stocks, the Contractor shall certify actual costs by affidavit. The Engineer will review the prices andContractor-proposed corrections and, if reasonable, approve the completed list. Onceapproved, the prices will be utilized in the calculation of force account reimbursementfor materials. I f, in the case of non-invoiced materials supported by Contractor affidavit, the price appears to be unreasonable, the Engineer will determine the cost for all or part of those materials, utilizing the best data available. T he Contracting Agency reserves the right to provide materials. In this case, the Contractor will receive no payment for additional costs, overhead, or profit arisingfrom the value of the materials themselves. Labor and equipment necessary for handling and placing the Agency furnished material will be compensated as describedin this Specification. I n addition to compensation for direct materials cost, the Contracting Agency will pay the Contractor 21 percent of the sum of the costs calculated for materials reimbursement to cover project overhead, general company overhead, profit, bonding,insurance, required by Sections 1-07.10 and 1-07.18, Business & Occupation tax, and all other costs incurred. Page 1-130 M 41-10
1-09 Measurement and Payment3. For Equipment – The Contracting Agency will reimburse the Contractor for the
cost of equipment utilized in the Work. The equipment provided by the Contractor shall be of modern design and in good working condition. For the purpose of this provision, “provided” shall mean that the equipment is owned (either through outright ownership or through a long-term lease) and operated by the Contractor or subcontractor or that the equipment is rented and operated by the Contractor or subcontractor. Equipment that is rented with operator shall not be included here, but shall be considered a service and addressed according to Subsection 4 of this provision. The amount of payment for Contractor-owned equipment that is utilized shall be determined according to the version of the AGC/WSDOT Equipment Rental Agreement which is in effect at the time the force account is authorized. The rates listed in the Rental Rate Blue Book (as modified by the current AGC/WSDOT Equipment Rental Agreement) shall be full compensation for all fuel, oil, lubrication, ordinary repairs, maintenance, and all other costs incidental to furnishing and operating the equipment except labor for operation. Payment for rented equipment will be made on the basis of a valid invoice, covering the time period of the Work. Before Work is started, the Engineer may require the Contractor to obtain multiple quotations for the rental of equipment to be utilized and select the vendor with prices and terms most advantageous to the Contracting Agency. In the event that prior quotations are not obtained and the vendor is not a firm independent from the Contractor or subcontractor, then after-the-fact quotations may be obtained by the Engineer from the open market in the vicinity and the lowest such quotation may be used in place of submitted invoice. In addition to the payments for Contractor-owned and rented equipment, one or more lump-sum payments may be made for small tools. The amount to be paid shall be determined as outlined in the AGC/WSDOT Equipment Rental Agreement. The Contracting Agency will add 21 percent to equipment costs to cover project overhead, general company overhead, profit, bonding, insurance, required by Sections
1-07.10 and 1-07.18 , Business & Occupation tax, and all other costs incurred. This
markup will be over and above those equipment costs and will not be adjusted for equipment overhead amounts included in the Blue Book rates. Copies of the AGC/WSDOT Equipment Rental Agreement will be maintained on the Contracting Agency’s website at https:/ /wsdot.wa.gov/publications/fulltext/ construction/equipment-rental-agreement.pdf .
4.For Services – Compensation under force account for specialized services shall be made based on an invoice from the providing entity. Before Work is started, the Engineer may require the Contractor to obtain multiple quotations for the service to be utilized and select the provider with prices and terms most advantageous to the Contracting Agency. If prior quotations are not obtained, and the service invoice is submitted by a subcontractor, then after-the-fact quotations may be obtained by the Engineer from the open market in the vicinity and the lowest such quotation may be used in place of the submitted invoice. The following activities will be considered services and shall be compensated based on an invoice from the entity:
a.Biohazard abatement services
b.Camera Inspection services for Sewer/Storm Sewer
c.Commissioning services including manufacturing startup services
d.Contaminated water and soil disposal fees including lab analysis
e.Geotechnical Engineering services
f.Laboratory Testing M 41-10 Page 1-131 Measurement and Payment 1-09g. Professional Engineering Services
h.Sanitation Services such as trash or restroom services
i.Sawcutting
j.Security of Surveillance Services
k.Surveying including aerial surveying
l.Vacuum Truck
m.Water Truck
n.Well Decommissioning The Contracting Agency will pay the Contractor an additional 21 percent of the sum of the costs included on invoices for services to cover project overhead, general company overhead, profit, bonding, insurance, required by Sections 1-07.10 and
1-07.18 , Business & Occupation tax, and all other costs incurred.
5.For Mobilization – Force account mobilization is defined as the preparatory Work performed by the Contractor including procurement, loading and transportation of tools and equipment, and personal travel time (when such travel time is a contractual obligation of the Contractor or a customary payment for the Contractor to all employees). Mobilization also includes the costs incurred during demobilization. Pro-rata adjustments may be made when the mobilization applies to both force account and other Contract Work. The Contracting Agency will pay for mobilization for off-site preparatory Work for force account items provided that notice has been provided sufficiently in advance to allow the Engineer to witness the activity, if desired. All costs experienced during mobilization activities for labor, equipment, materials or services shall be listed in those sections of the force account summary and paid accordingly.
6.For Markup on Subcontractor’s Work – When Work is performed on a force account basis by an approved subcontractor, the Contractor will be allowed an a markup, from the table below, applied to the costs computed for Work done by each subcontractor through Subsections 1, 2, and 3, to compensate for all administrative costs, including project overhead, general company overhead, profit, bonding, insurance required by Sections 1-07.10 and 1-07.18 , Business & Occupation tax, and all other costs incurred. Work performed by each subcontractor on each force account and calculated through Subsections 1-3 will be marked up at the following percentages: On amounts up to and including $50,000 12 percent On amounts between $50,000 and $200,000 10 percent On amounts greater than or equal to $200,000 7 percent The amounts and markup rates shall be calculated separately for each subcontractor on each force account item established. The payments provided above shall be full payment for all Work done on a force account basis. The calculated payment shall cover all expenses of every nature, kind, and description, including those listed above and all others incurred on the Work being paid through force account. Nothing in this provision shall preclude the Contractor from seeking an extension of time or time-related damages to unchanged Work arising as a result of the force account Work. The amount and costs of all Work to be paid by force account shall be computed by the Engineer, and the result shall be final as provided in Section 1-05.1 . Page 1-132 M 41-10
1-09 Measurement and PaymentAn item that has been Bid at a unit price or lump sum in the Proposal will not be paid as
force account unless:
1.A change as defined in Section 1-04.4 has occurred and the provisions require a payment adjustment.
2.A Contract item paid by force account requires Work that is normally included in a lump sum Contract item. In such a case, the Work normally included in a lump sum Contract item will be paid by force account under the force account Contract item. Items that are included in the Proposal as Force Account or that are added by change order as Force Account may, by agreement of the parties at any time, be converted to agreed unit prices or lump sums applicable to the remaining Work.
1-09.7 Mobilization
Mobilization consists of preconstruction expenses and the costs of preparatory Work and operations performed by the Contractor typically occurring before 10 percent of the total original Contract amount is earned from other Contract items. Items which are not to be included in the item of Mobilization include but are not limited to:
1.Portions of the Work covered by the specific Contract item or incidental Work which is to be included in a Contract item or items.
2.Profit, interest on borrowed money, overhead, or management costs.
3.Costs incurred for mobilizing equipment to perform force account Work. Based on the lump sum Contract price for “Mobilization”, partial payments will be made as follows:
1.When 5 percent of the total original Contract amount is earned from other Contract items, excluding amounts paid for materials on hand, 50 percent of the amount Bid for mobilization, or 5 percent of the total original Contract amount, whichever is the least, will be paid.
2.When 10 percent of the total original Contract amount is earned from other Contract items, excluding amounts paid for materials on hand, 100 percent of the amount Bid for mobilization, or 10 percent of the total original Contract amount, whichever is the least, will be paid.
3.When the Substantial Completion Date has been established for the project, payment for mobilization in excess of 10 percent of the total original Contract amount, if any, will be paid. Nothing herein shall be construed to limit or preclude partial payments otherwise provided by the Contract.
1-09.8 Payment for Material on Hand
The Contracting Agency may reimburse the Contractor for materials purchased before their use in the Work if they:
1.Meet the requirements of the Plans and Specifications;
2.Are delivered to or stockpiled near the project or other Engineer-approved storage sites; and
3.Consist of: sand, gravel, surfacing materials, aggregates, reinforcing steel, bronze plates, structural steel, machinery, piling, timber and lumber (not including forms or falsework), large signs unique to the project, prestressed concrete beams or girders, or other materials the Engineer may approve. M 41-10 Page 1-133 Measurement and Payment 1-09The Contracting Agency may reimburse the Contractor for traffic signal controllers as follows:
1.Fifty percent when the traffic signal controller and all components are received and assembled into a complete unit at the State Materials Laboratory.
2.One hundred percent when the traffic signal controller is approved for shipment to the project by the State Materials Laboratory. The Contractor shall provide sufficient written evidence of production costs to enable the Engineer to compute the cost of Contractor-produced materials (such as sand, gravel, surfacing material, or aggregates). For other materials, the Contractor shall provide invoices from material suppliers. Each invoice shall be detailed sufficiently to enable the Engineer to determine the actual costs. Payment for materials on hand shall not exceed the total Contract cost for the Contract item. If payment for material on hand is based upon an unpaid invoice, the Contractor shall provide the Engineer with a paid invoice within 60 calendar days after the Contracting Agency’s payment. If the paid invoice is not furnished within this time, the payment amount will be deducted from the next progress estimate and withheld until the paid invoice is supplied. The Contracting Agency will not pay for material on hand when the invoice cost is less than $2,000. As materials are used in the Work, credits equaling the partial payments for them will be taken on future estimates. Partial payment for materials on hand shall not constitute acceptance. Materials will be rejected if found to be defective, even if partial payment for it has been made.
1-09.9 Payments
The basis of payment will be the actual quantities of Work performed according to the Contract and as specified for payment. The Contractor shall submit a breakdown of the cost of lump sum Items to enable the Engineer to determine the Work performed on a monthly basis. Lump sum item breakdowns shall be submitted prior to the first progress payment that includes payment for the Bid Item in question. A breakdown is not required for lump sum Items that include a basis for incremental payments as part of the respective Specification. Absent a lump sum breakdown, the Engineer will make a determination based on information available. The Engineer’s determination of the cost of Work shall be final. Payments will be made for Work and labor performed and materials furnished under the Contract according to the price in the Proposal unless otherwise provided. Partial payments will be made once each month, based upon partial estimates prepared by the Engineer. The determination of payments under the Contract will be final in accordance with Section 1-05.1 . Unless otherwise provided, payments will be made from the Motor Vehicle Fund. Failure to perform obligations of the Contract may be decreed by the Contracting Agency to be adequate reason for withholding payments until compliance is achieved. The Contractor shall sign electronically using the software provided by the Contracting Agency and return the Final Contract Voucher Certification (FCVC) as indicated in this section. Within 21 days of execution, the Contractor shall submit a Type 1 Working Drawing designating who will sign the FCVC, including their full name, email address, and text-message capable phone number. The designee shall be an authorized signer in accordance with Section 1-02.1 . Upon completion of all Work and after final inspection ( Section 1-05.11 ), the amount due the Contractor under the Contract will be paid based upon the final estimate made by the Engineer and presentation of a Final Contract Voucher Certification to be signed by the Contractor. The Contractor's signature on such voucher shall be deemed a Page 1-134 M 41-10
1-09 Measurement and Paymentrelease of all claims of the Contractor unless a Certified Claim is filed in accordance with
the requirements of Section 1-09.11 and is expressly excepted from the Contractor’s certification on the Final Contract Voucher Certification. The date the Secretary signs the Final Contract Voucher Certification constitutes the final acceptance date (Section 1-05.12 ). If the Contractor fails, refuses, or is unable to sign and return the Final Contract Voucher Certification or other documentation required for completion and final acceptance of the Contract, the Contracting Agency reserves the right to establish a Completion Date (for the purpose of meeting the requirements of RCW 60.28 ) and unilaterally accept the Contract. Unilateral final acceptance will occur only after the Contractor has been provided the opportunity, by written request from the Engineer, to voluntarily submit such documents. If voluntary compliance is not achieved, formal notification of the impending establishment of a Completion Date and unilateral final acceptance will be provided by email with delivery confirmation from the Secretary to the Contractor, which will provide 30-calendar days for the Contractor to submit the necessary documents. The 30-calendar day period will begin on the date the email with delivery confirmation is received by the Contractor. The date the Secretary unilaterally signs the Final Contract Voucher Certification shall constitute the Completion Date and the final acceptance date ( Section
1-05.12 ). The reservation by the Contracting Agency to unilaterally accept the Contract
will apply to Contracts that are Physically Completed in accordance with Section 1-08.5 , or for Contracts that are terminated in accordance with Section 1-08.10 . Unilateral final acceptance of the Contract by the Contracting Agency does not in any way relieve the Contractor of their responsibility to comply with all Federal, State, tribal, or local laws, ordinances, and regulations that affect the Work under the Contract. Payment to the Contractor of partial estimates, final estimates, and retained percentages shall be subject to controlling laws.
1-09.9(1) Retainage
Pursuant to RCW 60.28 , a sum of 5 percent of the monies earned by the Contractor will be retained from progress estimates. Such retainage shall be used as a trust fund for the protection and payment (1) to the Contracting Agency with respect to taxes imposed pursuant to Title 82 RCW , and (2) the claims of any person arising under the Contract. Monies retained under the provisions of RCW 60.28 shall, at the option of the Contractor, be:
1.Retained in a fund by the Contracting Agency; or
2.Deposited by the Contracting Agency in an escrow (interest-bearing) account in a bank, mutual saving bank, or savings and loan association (interest on monies so retained shall be paid to the Contractor). Deposits are to be in the name of the Contracting Agency and are not to be allowed to be withdrawn without the Contracting Agency’s written authorization. The Contracting Agency will issue a check representing the sum of the monies reserved, payable to the bank or trust company. Such check shall be converted into bonds and securities chosen by the Contractor as the interest accrues. At the time the Contract is executed the Contractor shall designate the option desired. The Contractor in choosing option (2) agrees to assume full responsibility to pay all costs that may accrue from escrow services, brokerage charges or both, and further agrees to assume all risks in connection with the investment of the retained percentages in securities. The Contracting Agency may also, at its option, accept a bond in lieu of retainage. M 41-10 Page 1-135 Measurement and Payment 1-09Release of the retainage will be made 60 days following the Completion Date (pursuant to RCW 39.12 , and RCW 60.28 ) provided the following conditions are met:
1.On Contracts totaling more than $35,000, a release has been obtained from the Washington State Department of Revenue.
2.Affidavits of Wages Paid for the Contractor and all subcontractors are on file with the Contracting Agency ( RCW 39.12.040 ).
3.A certificate of Payment of Contributions Penalties and Interest on Public Works Contract is received from the Washington State Employment Security Department.
4.Washington State Department of Labor and Industries (in accordance with Section
1-07.10 ) shows the Contractor is current with payments of industrial insurance and
medical aid premiums.
5.All claims, as provided by law, filed against the retainage have been resolved. In the event claims are filed and provided the conditions of 1, 2, 3, and 4 are met, the Contractor will be paid such retained percentage less an amount sufficient to pay any such claims together with a sum determined by the Contracting Agency sufficient to pay the cost of foreclosing on claims and to cover attorney’s fees.
1-09.10 Payment for Surplus Processed Materials
After the Contract is completed, the Contractor will be reimbursed actual production costs for surplus processed material produced by the Contractor from Contracting Agency- provided sources if its value is $3,000 or more (determined by actual production costs). The quantity of surplus material eligible for reimbursement of production costs shall be the quantity produced (but an amount not greater than 110 percent of Plan quantity or as specified by the Engineer), less the actual quantity used. For Hot Mix Asphalt, the Plan quantity and quantity used will be adjusted for the quantity of Asphalt and quantity of RAP or other materials incorporated into the mix. The Contracting Agency will determine the actual amount of surplus material for reimbursement. The Contractor shall not dispose of surplus material without permission of the Engineer. Surplus material shall remain the property of the Contracting Agency without reimbursement to the Contractor if it is not eligible for reimbursement.
1-09.11 Disputes and Claims
1-09.11(1) Vacant
1-09.11(2) Claims
If the Contractor claims that additional payment is due and the Contractor has pursued and exhausted all the means provided in Sections 1-04.5 and 1-04.5(1) to resolve a dispute, including the use of a Disputes Review Board if one was established, the Contractor may file a claim as provided in this section. If either the Contracting Agency or the Contractor does not accept the Dispute Review Board recommendation pursuant to Section 1-04.5(1) , the Contractor shall submit to the Engineer a written notification of intent to file a Certified Claim, within 14 calendar days of the acceptance of Board recommendation. If a Dispute Review Board was not utilized, the Contractor shall submit to the Engineer written notification of intent to file a Certified Claim within 14 calendar days from the issuance of the Engineer’s determination on merit of the protest pursuant to Section 1-04.5 . The Contractor agrees to waive all claims for additional payment if the written notifications provided in Section 1-04.5 are not given, or if the Engineer is not afforded access by the Contractor to complete records of actual cost and additional time incurred as required by Section 1-04.5 , or if a claim is not filed as provided in this section. The fact that the Contractor has provided a proper notification, provided a properly filed claim, or provided the Engineer access to records of actual cost, shall not in any way be construed as proving or substantiating the validity of the Certified Claim. Page 1-136 M 41-10
1-09 Measurement and PaymentAll Certified Claims filed by the Contractor shall be in writing and in sufficient detail to
enable the Engineer to ascertain the basis and amount of the claim. All claims shall be submitted to the Engineer as provided in Section 1-05.15 . As a minimum, the following information must accompany each claim submitted:
1.A detailed factual statement of the claim for additional compensation and time, if any, providing all necessary dates, locations, and items of Work affected by the claim.
2.The date on which facts arose that gave rise to the claim.
3.The name of each Contracting Agency individual, official, or employee involved in or knowledgeable about the claim.
4.The specific provisions of the Contract that support the claim and a statement of the reasons why such provisions support the claim.
5.If the claim relates to a decision of the Engineer that the Contract leaves to the Engineer’s discretion or the Contract provides that the Engineer’s decision is final, the Contractor shall set out in detail all facts supporting its position relating to the decision of the Engineer.
6.The identification of documents and the substance of oral communications that support the claim.
7.Copies of any identified documents, other than Contracting Agency documents and documents previously furnished to the Contracting Agency by the Contractor, that support the claim (manuals that are standard to the industry, used by the Contractor, may be included by reference).
8.If an extension of time is sought:
a.The specific days and dates for which it is sought,
b.The specific reasons the Contractor believes a time extension should be granted,
c.The specific provisions of Section 1-08.8 under which it is sought, and
d.The Contractor’s analysis of its progress schedule to demonstrate the reason for a time extension.
9.If additional compensation is sought, the exact amount sought and a breakdown of that amount into the following categories:
a.Labor;
b.Materials;
c.Direct equipment. The actual cost for each piece of equipment for which a claim is made or in the absence of actual cost, the rates established by the AGC/ WSDOT Equipment Rental Agreement that was in effect when the Work was performed. In no case shall the amounts claimed for each piece of equipment exceed the rates established by that Equipment Rental Agreement even if the actual cost for such equipment is higher. The Contracting Agency may audit the Contractor’s cost records as provided in Section 1-09.12 to determine actual equipment cost. The following information shall be provided for each piece of equipment:
1.Detailed description (e.g., Motor Grader Diesel Powered Caterpillar 12 “G”, Tractor Crawler ROPS & Dozer Included Diesel);
2.The hours of use or standby; and
3.The specific day and dates of use or standby; M 41-10 Page 1-137 Measurement and Payment 1-09d. Job overhead;
e.Overhead (general and administrative);
f.Subcontractor’s claims (in the same level of detail as specified herein is required for subcontractor’s claims); and
g.Other categories as specified by the Contractor or the Contracting Agency.
10.A notarized statement shall be submitted to the Engineer containing the following language: Under the penalty of law for perjury or falsification, the undersigned, ____________________________, ______________________________ (name) (title) of _________________________________________________________ (company) hereby certifies that the claim for extra compensation and time, if any, made herein for Work on this Contract is a true statement of the actual costs incurred and time sought, and is fully documented and supported under the Contract between the parties. Dated __________________________/s/__________________________ Subscribed and sworn before me this ___________ day of ____________ ___________________________________________________________ Notary Public My Commission Expires:______________________________________ If the Certified Claim, after consideration by the Engineer, is found to have merit, the Engineer will make an equitable adjustment either in the amount of costs to be paid in accordance with Section 1-09.4 or in the time required for the Work, in accordance with Section 1-08.8 or both. If the Engineer finds the Certified Claim to be without merit, no adjustment will be made. If the Contractor does not accept the Engineer’s determination as to its Certified Claim, then the Contractor shall pursue its remedies in accordance with It will be the responsibility of the Contractor to keep full and complete records of the costs and additional time incurred for an alleged claim. The Contractor shall permit the Engineer to have access to those records and all other records as may be required by the Engineer to determine the facts or contentions involved in the claim. The Contractor shall retain those records for a period of not less than three years after final acceptance. The Contractor shall pursue administrative resolution of a claim with the Engineer or the designee of the Engineer. When the Contractor fails to submit such Certified Claim information and details as described in this Section with the Final Contract Voucher Certification or prior to the Contracting Agency’s unilateral final acceptance, all claims, including Certified Claims shall be waived as provided in Section 1-09.9 . Page 1-138 M 41-10
1-09 Measurement and PaymentProvided that the Contractor is in full compliance with all the provisions of this section
and after the formal Certified Claim document has been submitted, the Contracting Agency will respond, in writing, to the Contractor as follows:
1.Within 45 calendar days from the date the claim is received by the Contracting Agency if the claim amount is less than $200,000;
2.Within 90 calendar days from the date the claim is received by the Contracting Agency if the claim amount is equal to or greater than $200,000; or
3.If the above time restraints are insufficient due to the complexity of the claim under consideration, the Contractor will be notified within 14 calendar days from the date the claim is received by the Contracting Agency as to the amount of time that will be necessary for the Contracting Agency to prepare its response. Full compliance by the Contractor with the provisions of this section is a contractual condition precedent to the Contractor’s right to seek judicial relief.
1-09.11(3) Time Limitation and Jurisdiction
For the convenience of the parties to the Contract it is mutually agreed by the parties that all claims or causes of action which the Contractor has against the Contracting Agency arising from the Contract shall be brought within 180 calendar days from the date of final acceptance ( Section 1-05.12 ) of the Contract by the Contracting Agency; and it is further agreed that all such claims or causes of action shall be brought only in the Superior Court of Thurston County unless otherwise agreed in writing by the parties. The parties understand and agree that the Contractor’s failure to bring suit within the time period provided, shall be a complete bar to all such claims or causes of action. It is further mutually agreed by the parties that when claims or causes of action which the Contractor asserts against the Contracting Agency arising from the Contract are filed with the Contracting Agency or initiated in court, the Contractor shall permit the Contracting Agency to have timely access to all records deemed necessary by the Contracting Agency to assist in evaluating the claims or action.
1-09.12 Audits
1-09.12(1) General
The Contractor’s wage, payroll, and cost records on this Contract shall be open to inspection or audit by representatives of the Contracting Agency during the life of the Contract and for a period of not less than 3 years after the date of final acceptance of the Contract. The Contractor shall retain these records for that period. The Contractor shall also guarantee that the wage, payroll, and cost records of all subcontractors shall be retained and open to similar inspection or audit for the same period of time. The audit may be performed by employees of the Contracting Agency or by an auditor under contract with the Contracting Agency. The Contractor and subcontractors shall provide adequate facilities, acceptable to the Engineer, for the audit during normal business hours. The Contractor and subcontractors shall make a good faith effort to cooperate with the auditors. If an audit is to be commenced more than 60 calendar days after the final acceptance date of the Contract, the Contractor will be given 20 calendar days’ notice of the time when the audit is to begin. If any litigation, claim, or audit arising out of, in connection with, or related to this Contract is initiated, the wage, payroll, and cost records shall be retained until such litigation, claim, or audit involving the records is completed.
1-09.12(2) Audits - Claims
All Certified Claims filed against the Contracting Agency shall be subject to audit at any time following the filing of the claim. Failure of the Contractor or subcontractors to maintain and retain sufficient records to allow the auditors to verify all or a portion of the claim or to permit the auditor access to the books and records of the Contractor or subcontractors shall constitute a waiver of a claim and shall bar recovery thereunder. M 41-10 Page 1-139 Measurement and Payment 1-091-09.12(3) Required Documents for Audits As a minimum, the auditors shall have available to them the following documents:
1.Daily time sheets and supervisor’s daily reports.
2.Collective Bargaining Agreements.
3.Insurance, welfare, and benefits records.
4.Payroll registers.
5.Earnings records.
6.Payroll tax forms.
7.Material invoices and requisitions.
8.Material cost distribution worksheet.
9.Equipment records.
10.Invoices for vendors, rental agencies and subcontractors.
11.Contracts between the Contractor and each of its first-tier subcontractors. All lower- tier subcontractor contracts, and supplier contracts.
12.Subcontractors’ payment certificates.
13.Canceled checks (payroll and vendors).
14.Job cost reports, including monthly totals.
15.Job payroll ledger.
16.General ledger.
17.Cash disbursements journal.
18.Financial statements for all years reflecting the operations on this Contract. In addition, the Contracting Agency may require, if it deems appropriate, additional financial statements for 3 years preceding execution of the Contract and 3 years following final acceptance of the Contract.
19.Depreciation records on all company equipment whether these records are maintained by the company involved, its accountant, or others.
20.If a source other than depreciation records is used to develop costs for the Contractor’s internal purposes in establishing the actual cost of owning and operating equipment, all such other source documents.
21.All documents, including those to support the amount of damages for each claim.
22.Worksheets or software used to prepare claims for establishing the following:
a.Cost components for items
b.Cost of labor
c.Cost of benefits and insurance
d.Cost of materials
e.Cost of equipment
f.Subcontractor’s costs
g.Analysis of time periods
h.Tabulation of individuals involved, and hours worked
i.Wage rates for the individuals
23.Worksheets, software, and all other documents used by the Contractor to prepare its Bid. Page 1-140 M 41-10
1-09 Measurement and PaymentAn audit may be performed by employees of the Contracting Agency or a representative
of the Contracting Agency. The Contractor and its subcontractors shall provide adequate facilities acceptable to the Contracting Agency for the audit during normal business hours. The Contractor and all subcontractors shall cooperate with the Contracting Agency’s auditors.
1-09.13 Claims Resolution
1-09.13(1) Conditions Precedent to Binding Arbitration or Litigation
1-09.13(1)A General
Prior to seeking claims resolution through arbitration or litigation, the Contractor shall proceed in accordance with Sections 1-04.5 and 1-09.11 . The provisions of Sections
1-04.5 and 1-09.11 must be complied with in full as a condition precedent to the
Contractor’s right to seek claim resolution through binding arbitration or litigation. Any claims or causes of action which the Contractor has against the Contracting Agency arising from the Contract shall be resolved, as prescribed herein, through binding arbitration or litigation. The Contractor and the Contracting Agency mutually agree that those claims or causes of action which total $1,000,000 or less, which are not resolved by mediation, shall be resolved through mandatory and binding arbitration as described herein, subject to the limitations described in Section 1-09.13(3)C . The Contractor and the Contracting Agency mutually agree that those claims or causes of action in excess of $1,000,000, which are not resolved by mediation, shall be resolved through litigation unless the parties mutually agree in writing to resolve the claim through binding arbitration.
1-09.13(1)B Time Limitation
For the convenience of the parties to the Contract, it is mutually agreed by the parties that any arbitration or litigation shall be initiated within 180 calendar days from the “acceptance date” described in Section 1-05.12 , Final Acceptance. Arbitration shall be deemed to be initiated on the date the Contractor has successfully completed the requirements of Section 1-09.13(3)B , Procedure to Initiate Arbitration. Litigation shall be deemed to be initiated on the date the Contractor files a cause of action with the Thurston County Superior Court, or such other Superior Court as mutually agreed to in writing by the parties. The parties understand and agree that the Contractor’s failure to initiate arbitration or initiate litigation within the time period provided shall be a complete bar to any such claims or causes of action.
1-09.13(2) Mediation
After the Contracting Agency has been given the time and opportunity to respond to the Contractor as provided in Section 1-09.11(2) , mediation may be used upon mutual agreement of the Contractor and the Contracting Agency. When parties mutually agree to use mediation, the following conditions apply:
1.The cost of the mediation shall be shared equally by both parties with each party bearing its own preparation costs.
2.The mediation shall be conducted within the State of Washington at a time and place mutually agreeable.
3.The Contractor agrees that the participation in a mediation does not in any way waive the requirement that binding arbitration or litigation proceedings must commence within 180 calendar days of final acceptance of the Contract, the same as other claims or causes of action as provided in Section 1-09.11(3) . M 41-10 Page 1-141 Measurement and Payment 1-091-09.13(3) Arbitration
1-09.13(3)A Arbitration General
Arbitration shall be administered through the American Arbitration Association (AAA) using the following arbitration methods:
1.For Certified Claims with an amount less than or equal to $250,000 the current version of the Construction Industry Arbitration Rules and Mediation Procedures Fast Track Procedures shall be used.
2.For Certified Claims with an amount greater than $250,000 and less than or equal to a $1,000,000, the current version of the Construction Industry Arbitration Rules and Mediation Procedures Regular Track Procedures shall be used subject to the limitation in Section 1-09.13(3)C . Certain aspects of the arbitration may be held by video conference if agreed by the parties and the arbitrator. If aspects of the arbitration require the parties to be at the same physical location, the locale shall be as agreed by the parties and the arbitrator, but in any case, within the state of Washington. If the parties and the arbitrator are unable to agree, the locale shall be in which the Contracting Agency’s headquarters is located. The Contracting Agency and the Contractor mutually agree to be bound by the decision of the arbitrator, and judgment upon the award rendered by the arbitrator may be entered in the Superior Court of Thurston County or such other Superior Court as mutually agreed to in writing by the parties. The decision of the arbitrator and the specific basis for the decision shall be in writing. The arbitrator shall use the Contract as a basis for decisions.
1-09.13(3)B Procedure to Initiate Arbitration
The Contractor shall file a demand with the AAA in accordance with item (a) “Filing a Demand”, of Section R-4 “Filing Requirements Under Arbitration Agreement in a Contract”, of The Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association, amended effective July 1, 2015. The fee schedule used shall be the fee schedule effective on the date of filing. The Contractor shall notify the Engineer, in writing, that a demand has been filed with the AAA.
1-09.13(3)C Limitations on Arbitration Related to Physical Completion
Unresolved disputes which do not involve delays or impacts to unchanged Work may be brought to binding arbitration prior to Physical Completion of the project, provided the Contractor certifies in writing that claims for delays or impacts to the Work will not result from the dispute. Unless the Contracting Agency and the Contractor agree otherwise, all other unresolved claims (disputes which have been pursued to the claim status) which arise from a Contract must be brought in a single arbitration hearing and only after Physical Completion of the Contract. The total of those unresolved claims cannot be greater than $1,000,000 to be eligible for arbitration.
1-09.13(4) Venue for Litigation
Litigation shall be brought in the Superior Court of Thurston County or such other Superior Court as mutually agreed to in writing by the parties. It is mutually agreed by the parties that when litigation occurs, the Contractor shall permit the Contracting Agency to have timely access to all records deemed necessary by the Contracting Agency to assist in evaluating the claims or action.
Source: Washington Standard Specifications for Road, Bridge, and Municipal Construction, 2024 Edition. Pages 173–193 of 1,151.