104Scope of Work

104.1-INTENT OF CONTRACT: The intent of the Contract is to provide for the construction and completion in every detail of the work described. The Contractor shall furnish all labor, materials, equipment, tools, transportation, and supplies required to complete the work in accordance with the Plans, Specifications, and terms of the Contract. Should any misunderstanding arise as to the intent or meaning of the Contract, or any discrepancy appear, the decision of the Commissioner shall be final. 104.2-ALTERATION OF PLANS OR CHARACTER OF WORK: Under no circumstances shall alterations of Plans or the nature of the work involve work beyond the termini of the proposed c onstruction except as may be necessary to satisfactorily complete the project. In addition to the above, alterations in Plans or increased quantities of items may be made necessary at a time when the contract or the items involved in the operations are su bstantially completed, the related contractor organization demobilized, and related equipment essentially removed from the project. Under these circumstances, if it is demonstrated that the unit cost to the Contractor has increased, additional compe nsation may be allowed by the Engineer and the additional work performed as prescribed in 104.3 as "Extra Work." Any adjustment in compensation because of a change(s) resulting from one or more of the conditions described above will be made in accordance with the provisions of 109.3. Any adjustment in contract time because of such change(s) will be made in accordance with the provisions of 108.6. 104.3-EXTRA WORK: The Contractor shall perform unforeseen work for wh ich there is no price included in the Contract, whenever it is deemed necessary or desirable in order to complete fully the work as contemplated. The work shall be performed in accordance with the Specifications and as directed, and will be paid for as provided by a written supplemental agreement on a unit price or lump sum basis. In the event the Engineer and the Contractor are unable to agree upon the terms of the supplemental agreement, the Contractor shall proceed with the work and receive payment therefore in the manner and amount prescribed in 109.4. 104.4-TEMPORARY STRUCTURES: In contracts for bridges only, the Contractor will not be required to construct or maintain temporary structures unless the construction and maintenance of such structures are stipulated in the Contract or ordered as extra work by the Engineer. If the building of temporary structures is included in the Contract, or added by extra work order, the responsibility of th e Contractor for accidents to the public or to their employees, arising from their construction or maintenance, shall extend to such structure and its roadway approaches. 104.5-MAINTENANCE OF TRAFFIC: The Project, while undergoing improvement, shall be kept open to all traffic by the Contractor in such condition that both local and through traffic will be adequately and safely accommodated. All construction operations shall be scheduled to keep traffic delay to a minimum. The Contractor shall follow, " Manual on Temporary Traffic Control for Streets and Highways”. All expenses for the following items shall be borne by the Contractor without extra compensation except when the Proposal provides for payment under 636, Maintaining Traffic:

approaches, crossings and intersections with streets and roads, including the furnishing and application of aggregates for maintenance of traffic and water for use as dust palliative. ii. The furnishing of flaggers and pilot trucks and drivers. iii. The furnishing, erection, and maintenance of warning devices, such as signs, auxiliary barriers, channelizing devices, hazard warning lights, barric ades, flares and reflective markers. If actual field conditions are not illustrated in the Plans, engineering judgment and discretion shall be exercised to select devices that will be adaptable, but the general policies prescribed shall be adhered to. F inal responsibility for the installation of adequate safety devices for the protection of the traveling public and employees, as well as for the safeguard of the work in general, shall rest with the Contractor. During any suspension of work, the Contractor shall make passable and shall open to traffic such portions of the project and temporary roadways or portions thereof as may be agreed upon between the Contractor and the Engineer for the temporary accommodation of necessary traffic during the anticipated period of suspension. Thereafter, and until an issuance of an order for the resumption of construction operations, the maintenance of the temporary route or line of travel agreed upon will be by and at the expense of the Division. When work is resumed, the Contractor shall replace or renew any work or materials lost or damaged because of such temporary use of the project and shall remove, to the extent directed by the Engineer, any work or materials used in temporary maintenance thereof by the Division and shall complete the project in every respect as though its prosecution had been continuous and without interference. All additional work caused by such suspensions, for reasons beyond the control of the Contractor, will be paid for by the Division at contract prices or by extra work. The Division will provide all necessary snow removal. 104.6–RIGHTS IN AND USE OF MATERIALS FOUND ON THE PROJECT: The Contractor, wi th the approval of the Engineer, may use on the project such stone, gravel, sand, or other material determined suitable by the Engineer, as may be found in the excavation and will be paid both for the excavation of such materials at the corresponding contract unit price and for the pay item for which the excavated material is used. The Contractor shall replace at their own expense with other acceptable material all of that portion of the excavation material so removed and used which was needed for use in t he embankments, backfills, approaches, or otherwise. No charge for the material so used will be made against the Contractor. The Contractor shall not excavate or remove any material from within the highway location which is not within the grading limits, as indicated by the slope and grade lines, without written authorization from the Engineer. Unless otherwise provided in the Contract, the material from any existing old structures and pipes shall become the property of the Contractor and shall be removed from the project. 104.7-FINAL CLEAN UP: Before final acceptance is made, the Contractor shall clear the highway, waste areas, borrow pits, and all ground occupied by the Contractor during the construction, of all rubbish, excess materials, temporary structures and equipment. The Contractor shall restore in an acceptable manner all property, both public and private, which has been damaged during the prosecution of the work; and shall leave the highway or bridge site, including streams and their banks, in a neat and presentable condition in accordance with applicable laws of the State. All excavated material or falsework placed in stream channels shall be removed, and all material from around piers and abutments shall be replaced and compacted to the level of the original surface. 104.8-BRIDGE PLATE: A bronze plate, carrying the project number, the number of the bridge, and the year of the bridge construction, will be furnished and placed by the Contractor without extra compensation. The nameplate on through steel bridges shall be placed on the end posts about eight (8) feet vertically above the floor. On other bridges, they shall be placed in th e railings as shown on the plans or as designated by the Engineer. The plate shall be a minimum of eight (8) inches by ten

surface of the plate. The information on the plate shall be arranged as follows: (Project No. on first line) Bridge No. Built (Year of construction) 104.9-DIFFERING SITE CONDITIONS: During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before they are disturbed and before the affected work is performed. Upon written notification, the Engineer will investigate the conditions, and if the Engineer determines that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding loss of anticipated profits, will be made and the contract modified in writing accordingly. The Engineer will notify the Contractor of their determination whether or not an adjustment of the contract is warranted. No contract adjustment which results in a benefit to the Contractor will be allowed unless the Contractor has provided the required written notice. The Contractor shall promptly notify the Engineer of alleged changes to the Contract due to differing site conditions, extra work, altered work beyond the scope of the Contract, or action(s) taken by the Division that changed the Contract terms and conditions.

claimed change after the date the change allegedly occurred unless directed otherwise in writing or orally follow up in writing in 48 hours by the Engineer.

by site conditions or actions by the Division, and in writing within five (5) calendar days of the date the alleged change or action was noted. Thereafter, the Contractor shall provide the following information to the Engineer in writing within fifteen (15) calendar days of the written notice:

constitute a change.

change.

claimed change.

be sought under this Section including:

change and what equipment will be idled or required.

will be caused.

estimated due to the claimed change.

minimize cost, delay, or disruption of performance.

received to the contrary from an authorized represent ative of the Division, the Contractor shall continue diligent prosecution of the work under the Contract to the maximum extent possible. Within fifteen (15) calendar days after receipt of the written notice and required information, the Engineer shall respond in writing to the Contractor to: :

further performance, or

further performance, or

whether (1) or (2) applies, and indicate the needed information and date it is to be received by the Engineer for further review. The Division will respond to such additional information within fifteen (15) calendar days of receipt from the Contractor.

104.10SUSPENSION OF WORK ORDERED BY THE ENGINEER:

If the performance of all or any portion of the work is suspended or delayed by the Engineer in writing for an unreasonable period of time (not originally anticipated, customary or inherent in the construction industry) and the Contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the Contractor shall submit to the Engineer in writing a request for adjustment within seven (7) calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment. Upon receipt, the Engineer will evaluate the Contractor's request. If the Engineer agrees that the cost and/or time req uired for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not cau sed by weather, the Engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The Contractor will be notified of the Engineer's determination whether or not an adjustment of the contract is warranted. No contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.

104.11SIGNIFICANT CHANGES IN THE CHARACTER OF WORK:

The Engineer re serves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the Contractor agrees to perform the work as altered. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves si gnificant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the Engineer may determine to be fair and equitable. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract. The term "significant change" shall be construed to apply only to the following circumstances:

involved or included in the original proposed construction; or

10 percent (10%) of the original contract amount or $50,000 dollars), is increased in excess of 125 percent (125%) or decreased below 75 percent (75%) of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent (125%) of original contract item quantity, or in case of a decrease below 75 percent (75%), to the actual amount of work performed.

104.12VALUE ENGINEERING CHANGE PROPOSAL AND PRACTICAL DESIGN

CHANGE PROPOSAL: The Contractor may submit to the Engineer, in writing, Value Engineering Change Proposals (VECP) for modifying the plans, specifications or other requirements of the contract for the purpose of reducing the total cost of construction without reducing design capacity or quality of the finished product. If accepted by the Division, the cost savings difference between the original contract work being modified and the final cost of the proposed new work shall be shared between the Contractor and the Division on a fifty-fifty basis. The Contractor may submit to the Engineer, in writing, a Practical Design Change Proposal

purpose of reducing the total cost of construction. A Practical Design Change Proposal may provide a finished product with a justifiably revised scope change, as compared to the as -bid product. The PDCP may modify construction sequences, re -use existing roadway elements or underrun contract items. The PDCP shall not adversely affect safety or function of the final product. The cost savings to the Division shall be negotiated to be at least sixty percent (60%) of the cost difference between the original contract work being modified and the final cost of the proposed new work listed in the change order for a PDCP. The contractor is encouraged to submit to the engineer, in writing, VECP’s and PDCP’s for modif ying the plans, specifications or other requirements of the contract. Proposed modifications should not impair, in any manner, essential functions or characteristics of the project, including but not limited to, service life, economy of operation, ease of maintenance, and shall not impair design or safety standards, and shall not significantly delay the completion of the project. This subsection applies to all VECPs/PDCPs initiated and developed by the Contractor and which are identified as such by the Con tractor at the time of their submission to the Engineer; however, nothing shall be construed as requiring the Engineer to consider or approve a VECP/PDCP submitted hereunder. As a minimum, the following information shall be submitted, in quadruplicate, wi th each VECP/PDCP along with all information additionally submitted in electronic format:

ii. A description of the difference between the existing contract requirements and the proposed change; iii. A statement concerning the basis for the VECP/PDCP and benefits to the Division together with an itemization of the contract items and requirements affected by the VECP/PDCP; iv. Separate detailed cost estimates for both the existing contract requirements and the proposed change;

VECP/PDCP is adopted; vi. An estimate of the effect on collateral costs to the Division. Collateral costs are defined to be reduced costs of operation, maintenance or repair and extended useful service life; and vii. A statement of the time by which approval must be issued to obtain the total cost reduction during remainder of Contract, noting any effect on contract completion time or delivery schedule; viii. A description of any previous use or submission of the same proposal by the Contractor, including dates, job numbers, results, and/or outcome of proposal if previously submitted; ix. Final submittals for VECPs and PDCPs shall be signed and sealed by a West Virginia Registered Professional Engineer, and that individual will become the Engineer of Record for the work described in the VECP/PDCP. It should be noted that on a case by case basis, the Contractor may be required to do presentations to the Division addressing the above issues and clarifying any additional information requested by the Division. If approved by the Division, the Division will process the VECP/PDCP in the same manner as prescribed for any other proposal which would necessitate issuance of a Contract change order. The Division may accept in whole or in part any VECP/PDCP by issuing a change order which will identify the VECP/PDCP on which it is based. The Division will not be liable to the Contractor for failure to accept or act upon any VECP/PDCP submitted pursuant to this provision nor for any delays to the work attributable to any such proposal. The Division has the right to reject any VECP/PDCP without explanation. Additionally there may be other regulatory agencies outside of the Division that may need to review the proposed VECP/PDCP and have the authority to reject/accept the proposed VECP/PDCP. The Division accepts no responsibility in delays or costs attributed to any such reviews by outside agencies and it is the responsibility of the Contractor to get approval from said organizations. Until a proposal is effected by change order, the Contractor shall remain obligated to the terms and conditions of the existing contract. When an executed change order has not been issued by the date upon which the Contractor's proposal specifies that a decision should be made, or such other date as the Contractor may subsequently have specified in writing, such proposal may be deemed rejected. The change order affecting the necessary Contract modification will establish the estimated savings agreed upon, will provide for adjustment in the Contract prices and will indicate the savings be divided between the Contractor and the Division as per the negotiated agreements. The Contractor shall a bsorb all costs incurred in preparing a VECP/PDCP for submission to the Division. All reasonably incurred costs of reviewing and administering the VECP/PDCP will be borne by the Division. The Division reserves the right to include in the change order any conditions it deems appropriate for consideration, approval and implementation of the proposal. The Contractor's share of the savings shall constitute full compensation for effecting all changes pursuant to the change order. Acceptance of the VECP/PDCP and performance of the work thereunder will not change the Contract completion date as a result of the VECP/PDCP, unless specifically provided for in the change order authorizing the VECP/PDCP. The Division expressly reserves the right to adopt a VECP/PDC P for general use in contracts administered by the Division when it determines the VECP/PDCP is suitable for application to other contracts without obligation or compensation of any kind to the Contractor. The Engineer shall be sole judge of the acceptability of a VECP/PDCP. When a VECP/PDCP is accepted by the Division, the provisions of 104.2 pertaining to adjustment of Contract unit price due to alterations of Contract quantities will not apply to the items adjusted or deleted as a result of affecting the VECP/PDCP by change order. The cost of the revised work, as determined in the value engineering change order, will be paid on current estimates. In addition to such payment for VECP items, the Contractor will be paid, on a Lump Sum basis by a separate item, one half of the difference of the cost of the original contract work and the final cost of the new work listed in the change order In addition to such payment for PDCP items, the Contractor shall be paid on a Lump Sum basis by separate item the nego tiated contractor portion of the savings. For VECP, one half of contractor portion of the estimated savings will be paid to the Contractor upon approval of the change order. For PDCP, one half of the negotiated contractor portion of the estimated savings will be paid to the Contractor upon approval of the change order. The remainder of the savings due the Contractor will be paid upon completion of all items of work included in the change order. This final Lump Sum payment will be determined by the actual quantities for items paid by the unit. Final payment for other lump sum or proposal quantity items will be the change order amount, subject to 109.2.