62 West Virginia Division of Environmental Protection Division of Air Quality 601 57th Street S.E. Charleston, West Virginia 25304 Attn: Asbestos Coordinator Telephone: (304) 926 -0499 United States Environmental Protection Agency -Region 3 1650 Arch Street Philad elphia, Pennsylvania 19103 Attn: Rich Ponak Asbestos Program Coordinator Telephone: (215) 814 -2044 Ponak.Rich@epa.gov If a building or bridge contains asbestos, the notification process as outlined in Section 681, Asbestos Abatement shall be followed.
107.27 Construction Access and Environmental Permits :
The Division has obtained permits for activities shown in the contract documents. The anticipated Temporary Construction Access (TCA) methods are included, if a TCA is not shown in the plans, or the permit, it has been determined that at least one TCA met hod exists that does not require a permit. A copy of these permits is in the contract documents. The contractor must comply with the approved permits and exercise best environmental management practices at no additional cost to the Division. The permits do not cover waste or borrow sites, haul roads, storage sites, staging areas or activity not shown in the contract documents or permits. These permits are to be handled in accordance with Section 107.2.
107.27.1 Temporary Construction Accesses: A Temporary Construction Access is any
road, cofferdam, causeway and/or stream crossing, access fill, dike, channel retaining structure, etc. that may be required to access the work. This work shall consist of the constr uction of all temporary construction access required for the project and shall include, but is not limited to, all culverts, structures, excavation, rock borrow and incidental construction as required to construct the access. This work shall also include all necessary work required to maintain and remove the temporary construction access and to restore the area to its original condition. All of the work shall be in accordance with these Specifications and in reasonably close conformity with the contract d ocuments, approved permits, or as established by the Engineer. No payments shall be made for the Temporary Construction Access unless otherwise stated in the plans.
107.27.1 1 -Changing Temporary Construction Accesses: The Contractor may elect
to utilize alternate temporary construction access methods from those shown in the contract documents. If the Contractor proposes alternate temporary construction access methods, he shall obtain written approval from all affected landowners and shall provide to the Engineer all of the permit documents required to obtain additional or revised permits. The Division will submit the permit documents to the appropriate agencies for approval. Acceptance of the permit documents by the Engineer or forwarding them to the permitting agency does not 63 guarantee or constitute approval of the permit. No work shall be performed on a permittable activity until a copy of all the appropriate approvals and permits are received by the Engineer. No time extensions or additional payments will be made for the contractor to obtain additional approvals or permits or for changes to the design of the temporary construction access.
107.27.1 2 -Excavated Material: The excavated material, unless otherwise directed
by the Engineer, shall be utilized for backfill or embankments. Surplus material shall be disposed in accordance with section 207.6 and in such a manner that the efficiency or appearance of the structure shall not be impaired, and the stream shall not be obstructed or excess sediment introduced into the stream.
107.27.2 Corps of Engineers Permit: If this project has been determined to involve
activities, which are regulated by the Department of the Arm y, Corps of Engineers a permit has been included in the contract documents. These activities involve the discharge of dredge or fill materials into the Waters of the United States as regulated by Section 404 of the Clean Water Act or the obstruction or al teration of Navigable Waters of the United States regulated by Section 10 of the River and Harbor Act of 1899. The Engineer will decide all questions that may arise as to the interpretation or violation of these conditions. The Contractor shall comply with the conditions of the Permit s and the following:
1.Material will not be stockpiled in the watercourse.
2.Bilge, ballast or wash water pumped from barges or out of cofferdams will not be discharged into the watercourse without acceptable removal of solids, oils and/or toxic compounds.
3.Discharges shall be avoided during fish spawning seasons to the maximum extent practicable unless a note prohibiting such discharge is included in the construction plans. 64 SECTION 108 PROSECUTION AND PROGRESS 108.1 -SUBLETTING OF CONTRACT : The Contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the Contract or Contracts or any portion thereof, or of their right, title, or interest, without written approval of the Engineer prior to any of the subject work being performed. The Contractor will be permitted to sublet a portion thereof but shall perform, with his/her own organization, work amounting to not less than 30 percent (30%) of the total contract cost, except that any items designated in the Contract as "specialty items" may be performed by subcontract and the cost of any such specialty items so performed by subcontract may be deduct ed from the total cost before computing the amount of work required to be performed by the Contractor with his/her own organization. No subcontracts, or transfer of contract, shall in any case release the Contractor of his/her liability under the Contract and Bonds. The Contractor shall request the approval of each subcontractor, including lower -tier subcontractors. No work shall be performed by a subcontractor until the subcontractor has completed a Contractor Prequalification Application, received a Cer tificate of Qualification from the Division in the categories of work the subcontractor will be providing on the project, and the request has been approved. Each subcontract, including lower -tier subcontracts, shall be in writing and shall physically contain all of the applicable provisions, requirements, specifications, and safety plans. The Contractor may certify that a copy of all the applicable provisions, requirements, specifications, and safety plans has been provided and is physically incorporated in each subcontract including lower -tier subcontracts. Requests for approval of DBE subcontractors, however, shall also be accompanied by a copy of the proposed subcontract without the required attachments. The Contractor shall maintain a co mplete subcontract file including lower -tier subcontractors at the home office, which shall be available to authorized personnel for review without notice, or at any other appropriate location as determined by the Division after a five (5) day notice. Such file may contain a single copy of all the applicable provisions, requirements and specifications in lieu of individual subcontract files containing the applicable attachments. 108.1.1 -Subletting of Contract Materials : Roadside production of materials is construed to be the production of crushed stone, gravel, or other materials with portable or semi -portable crushing, screening, or washing plants established or re -opened in the vicinity of the work for the purpose of supplying materials to be incorporated into the work on a designated project or projects, and in all cases, unless performed by the Contractor, shall be considered as subcontracting. The purchase of sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready mixed concrete, or any other materials produced at and furnished from established and recognized commercial plants, together with the delivery of such materials to the site of work by means of vehicles owned or operated by such plants or by recognized com mercial hauling companies, shall not be considered as subcontracting under these provisions. Except as stated, all hauling of materials from roadside production sources or from railroad or water delivery points to batching plants, mixing plants, or direct ly to their place of use in the road, and all hauling of materials from batching plants and mixing plants to their place of use in the road, unless done by the Contractor's own equipment or by recognized hauling companies, shall be 65 considered as subcontrac ting under these provisions. If batching plants or mixing plants are set up at rail or water delivery points and materials in part supplied to such plants by rail or water transportation companies, the remaining materials required at such batching or mixi ng plants may be hauled to such plants without such hauling being considered as subcontracting. 108.2 -NOTICE TO PROCEED : The Notice to Proceed will stipulate the date on which it is expected the Co ntractor shall begin work and from which date Contract time will be charged. In the event a Notice to Proceed cannot be issued, a Conditional Notice to Proceed may be issued upon the mutual agreement of the Division and the Contractor. The Conditional No tice to Proceed will be used to allow the Contractor to begin work on a portion of the project not impacted by the issue that created the need for the Conditional Notice to Proceed. 108.3 -PROSECUTION OF THE WORK : 108.3.1 -General: The Contractor shall provide sufficient resources (materials, equipment, and labor, etc.) to guarantee the completion of the project in accordance with the Plans and Specifications within the time set forth in the Proposal. The Contractor shall submit a Detailed Construction Schedule and any subsequent schedules, as required by this specification, in the form more clearly defined in section 108.3.2 with all graphic a nd tabular supporting documentation, hereinafter referred to as "Schedule.” Schedules will be required for all projects where the Contract Bid Amount is greater than $2,000,000. Additionally, any Project that contains an Incentive/Disincentive clause, a nd all Design Build, Alternative Project Delivery, and Public Private Partnership projects shall require a Schedule. Unless otherwise specified, Schedules will not be required for projects on which the major portion of the work is resurfacing, landscapin g, signing, lighting, installing signals, guardrail or bridge painting, or on which the Contract Bid Amount is $2,000,000 or less. The submitted Schedule shall include a written certification on the face of the Schedule, as well as on any diagrams and drawings, stating that the Schedule is within the contractual limits and that the submitted Schedule is the only Schedule the Contractor will use for all critical work activities, interdependent work activities, phase construction, stage construction, resource needs, transmittals for Contractor designs, drawings and other submissions, activities for subcontractors, vendors, and suppliers, and all other controlling and subsequent activities. This same written certification shall be included on all Schedule updates and revisions. The Schedule shall show the interdependent and logical sequence of construction activities. The Schedule shall reflect that all contract time requirements are essential conditions of the Contract and shall also include allowances for seasonal weather conditions, the influence of high or low ambient temperatures, as well as any extra shifts, overtime, or additional manpower and equipment necessary to complete the critical and non -critical activities within the allotted Contract time without additional cost to the Division. The Contractor shall provide a milestone that designates the substantial completion date of the project. Except as noted below, the substantial completion date shall equal the contract completion date. Additional activities that do not impact the project’s substantial completion may be included in the Schedule subsequent to the contract completion date . However, these additional activities shall not impact the float of any preceding portion of the Schedule. The Contractor may submit a Schedule with a Substantial Completion date earlier than the Contract Completion Date set forth in the Proposal. However, the Division will not be liable in any way for the Contractor’s failure to complete the Project prior to the specified Contract 66 Time except as when provided in Section 108.6. Any additional cost, including extended overhead incurred between the Contractor’s scheduled completion date and the Contract Completion Date set forth in the Proposal, shall be the respons ibility of the Contractor. Should the Schedule indicate an earlier completion date than the time for completion set forth in the Contract, the Schedule shall define any positive float developed between an early completion point and the Contract Completio n Date as part of the overall project float. It is understood by the Contractor and the Division that positive float is a shared commodity, not for the exclusive use or benefit of either party. Either party has the full use of the positive float until it is depleted. The Division's review of the Schedule does not represent approval of the Contractor's estimate of resources (labor, material and equipment), method of operation, or production rates. 108.3.1.1 -Submission of Construction Schedules: The Cont ractor shall designate a competent representative, hereinafter referred to as Construction Coordinator, who shall have the decision -making authority for the Contractor to control the work in accordance with the Schedule(s) for the duration of the Contract. With the exception of the following preliminary items: establishing the field office, setting up traffic control, and mobilizing equipment, no item of work under the contract may be pursued following the Notice to Proceed or the Conditional Notice to Pro ceed until a Preliminary Construction Schedule or Detailed Construction Schedule has been submitted by the Contractor and reviewed by the Engineer. The Engineer may withhold estimates until such time as a Schedule has been received and reviewed. 108.3. 1.2-Preliminary Construction Schedule: Within thirty (30) calendar days of the contract award date, the Contractor may submit a sixty (60) calendar day Preliminary Construction Schedule for review by the Engineer. The Preliminary Schedule shall include a generalized project schedule for the balance of the work in summary form indicating the contract completion date. The Contractor shall maintain and submit monthly a sixty (60) calendar day Preliminary Construction Schedule until the Schedule is submitted by the Contractor and reviewed by the Engineer. 108.3.1.3 -Detailed Construction Schedule (Schedule): The detailed construction Schedule shall include a report system that is maintained throughout the life of the project to measure all factors that affect the completion date. Within sixty (60) calendar days of the contract award date, the Contractor shall submit a Schedule indicating the contract completion date for review by the Engineer. The Engineer will review the Schedule and supporting documentation for compliance with the Contract within fourteen (14) calendar days after receipt in accordance with provision 108.6.2. The Contractor shall provide the Engineer with a revised Schedule incorporating any compliance recommendations made in the Engineer's review. This schedule shall become the official Schedule and shall be used by the Contractor. The official Schedule must be completed within ninety (90) calendar days of the Contract award date. The Engineer may withhold estimate payments for any item of work under the Contract after ninety (90) calendar days until the Contractor's Schedule has been reviewed and all comments have been addressed. 108.3.1.4 -Construction Schedule Requirements: The Preliminary Schedule and the 67 official Schedule shall be submitted in electronic /digital format (.XER file) and in hard copy and shall include a legend for symbols and abbreviations used. Activities with duration times in excess of fifteen (15) working days, except for non -construction activities, shall be kept to a minimum and be subject to review by the Engineer. The Schedule shall provide a minimum of ten (10) activities or categories, hereafter referred to as "Activities," per million dollar value of the Contract and a maximum of thr ee hundred (300) activities or as directed by the Engineer. The Schedule shall indicate the interdependence of Activities (how the start of a given activity depends on the completion of preceding Activities) and the sequence of work (how failure to comple te a given activity may restrain the start of successive activities). The Schedule shall include the Contract completion date and any interim completion dates contained in the Contract, as well as any coordination and cooperation requirements, constructio n restrictions, or other requirements of the Contract. The Schedule shall include Activities for all work required by the Contract, including Activities for subcontractors, vendors, and suppliers. In addition to construction activities, the Schedule shal l include as a minimum the procurement, fabrication, and delivery of critical or special materials and equipment, as well as submission and review of all shop/work drawings, Contractor designs, and all other submissions required by the Contract. The Activ ities are to be described by Contract item number, location, phase, and sequence so that the work is readily identifiable and the progress of each Activity can be measured. For Schedules requiring resource loading, the Contractor shall provide the labor and equipment involved with each Activity. For all Schedules, each Activity will have an associated dollar amount documented on the Schedule. This Activity dollar amount will be in direct relation to the bid items and quantity of work included in the Ac tivity. Activity duration shall be logical and consistent with the Contract documents and shall be based on realistic and available resources of the Contractor. The above requirements are applicable for all Schedules, including the official Schedules, re quired updates, and any revised Schedules. Requiring the Contractor to submit Schedules allocating resources to project Activities does not imply acceptance, approval, or agreement by the Division that the Contractor's scheduled allocation of resources is sufficient to complete either the project or a scheduled activity in a scheduled time. The Division’s review and acceptance of the Schedule and progress updates does not preclude a later review of any previously submitted Schedule. If upon later review the Division discovers an issue of non -compliance with the specification or a discrepancy in the Schedule that is skewing the logic calculations and schedule results, the Division reserves the right to request a revised S chedule as per Section 108.3.5. 108.3.2 -Detailed Construction Schedule (Schedule): The Schedules shall be prepared using scheduling software Primavera Project Manager P6 version 6.0 or higher. The following criteria shall apply to the development and maintenance of the Schedule:
1.All Resources shall be grouped in a Project Resource Tree. This tree structure shall have one main heading name that begins with the Project's specific 7 digit Contract ID Number followed by an underscore, followed by the Project Name.
2.Individual Resource na mes shall be shown as a sublevel to the main heading name. The Individual Resource names shall begin with the Project's specific 7 digit Contract ID 68 Number followed by an underscore, followed by the Project Name. Any additional description may follow the underscore.
3.The use of Project Codes is prohibited.
4.The use of Global Activity Codes are prohibited, however, Project Activity Codes may be used. The Project Activity Code names shall begin with the Project's specific seven
7.digit Contract ID Number followed by an underscore. Any additional description may follow the underscore.
5.Global Calendars are prohibited (except as noted below in section 7). However, Project Calendars may be used. The Project Calendar names shall begin with the project' s specific seven (7) digit contract number, followed by an underscore. Any additional description may follow the underscore. In addition, the Project Default Calendar shall be assigned as a Project Calendar.
6.The use of Cost Accounts is not required. How ever, if the Contractor elects to use them, then all Cost Account names shall be grouped in a Project Cost Accounts Tree. This tree structure shall have one main heading name that begins with the project's specific 7 digit Contract ID Number followed by a n underscore, followed by the Project Name.
7.Individual cost account names shall be shown as a sublevel to the main heading name. The individual cost account names shall begin with the Project's specific seven
7.digit Contract ID Number, followed by an underscore. Any additional description may follow the underscore.
8.The Contractor Resource Calendar shall be linked to the WVDOT Standard Calendar. The WVDOT Standard Calendar shall be assigned to each resource and shall be allowable as the only calendar for all Schedule Resources. This shall be accomplished by creating a Global Calendar named and formatted exactly as follows: WVDOT Standard five ( 5) Day Workweek with holidays.
9.The first activity on the Schedule shall be Project Award which shall be designated as a milestone starting on the actual Contract Award date.
10.The second activity on the Schedule shall be Notice to Proceed which shall be designated as a milestone with a 30 -day lag from the Project Award milestone (or with a seven ( 7) day lag fr om Project Award on projects with an Incentive/Disincentive clause).
11.Subsequent to the Notice to Proceed milestone, the logic and duration of remaining activities shall be developed and tied to the Substantial Completion milestone described in Section 108. 3.1.
12.Schedule calculation will be computed by Retained Logic method.
13.Only contractual Constraints can be used on activities when preparing the Schedule, otherwise the use of Constraints is prohibited.
14.All Actual Start Dates and Actual Finish Dates shall be reasonably captured in updated schedules.
15.The activity costs described in Section 108.3.4 shall be incorporated into the Schedule via Resource Section. The use of Expenses for costs is prohibited The Schedule shall be submitted on standard D size sheets (24" x 36"). The critical path shall be distinguished from other paths on the Schedule. All back -up data used to generate the Schedule shall be submitted in digital form on acceptable media that i s compatible with the 69 computer system. The submitted Print Out of the Schedule shall include the following data for each activity in the initial submittal and in all updates and revisions:
1.Activity number, as well as preceding and following activity nu mbers;
2.Activity description;
3.Duration of activity, in working days;
4.All quantities in accordance with pay items;
5.Dollar value of activity;
6.Remaining duration of activity, in working days;
7.Earliest start date, by calendar date;
8.Earliest finish date, b y calendar date;
9.Actual start date, by calendar date;
10.Actual finish date, by calendar date;
11.Latest start date, by calendar date;
12.Latest finish date, by calendar date;
13.Total float for activity;
14.Free float for activity; In addition to the above, th e following information and data shall be included with the submission of the digital form to the Division:
15.Number of shifts per work day, hours per shift for activity;
16.Number of work days per week for activity;
17.Major equipment and corresponding hours for activity;
18.Manpower by Trade or entity and corresponding hours for activity;
19.Activity Usage Profile Cost of Contractor’s Income. 108.3.3 -Schedule Resource Loading Criteria: The following criteria shall be incorporated in the development and maintenance of Schedules and Schedule updates: 108.3.3.1 -Non-Resource Loaded Schedules: For projects where the Contract Bid Amount is betwe en $2,000,000 and $7,500,000, the Schedule shall meet the requirements of a Schedule as described in Section 108.3.2 with the exception of Bullet 17 (Major equipment and corresponding hours for activity) and Bullet 18 (Manpower by Trade or entity and corre sponding hours for activity). 108.3.3.2 -Resource Loaded Schedules: Schedule resource loading will be required for all projects on which the Contract Bid Amount is equal to or exceeding $7,500,000. Additionally, all Design Build Projects, Public Private P artnerships, and Alternative Project Delivery projects will require Schedule resource loading regardless of the Contract Bid Amount. The Contractor is advised that the specific details of Major Equipment (bullet #17) and Manpower (bullet #18) may be pro vided on a separate attachment to the Schedule. However this information must be referenced to the Schedule so that in the determination of the Engineer relevant resource evaluation can be ascertained. 108.3.4 -Progress Reporting a nd Schedule Updating : The Contractor shall submit weekly a summary of work force by Trade including all workmen and subcontractors together 70 with a weekly summary of all equipment used on the project. The Division shall maintain the Contractor's resource information in a confi dential manner. The Contractor’s certified payrolls may be a substitute for the work force summary. A Project Control Meeting shall be held monthly by the Engineer with the Contractor's Construction Coordinator to review actual progress, planned progress for the next period, and any changes since the previous update(s). Non-Resource Loaded Projects as described in 108.3.3 that require a Schedules may hold Project Control Meetings less frequently if deemed appropriate by the Regional Engineer, but not les s than quarterly. For projects where the Contract Bid Amount is greater than or equal to $7,500,000 that require a Schedule, at least five (5) working days before the meeting, the Construction Coordinator shall provide the Engineer with a complete update of all schedule activity information included in 108.3.2. The Engineer may withhold estimate payments until the Contractor submits a Schedule update five (5) working days prior to the next Project Control meeting. For projects that requi re Non -Resource Loaded Schedules as described in 108.3.3, the Construction Coordinator shall provide the Engineer with a complete update of all Schedule activity information included in 108.3.2 and 108.3.3 within five (5) working days after the end of the month. The Engineer may withhold estimate payments until the Contractor submits a Schedule update within five (5) working days after the end of the month. The Contractor shall submit with the monthly update a narrative report which shall include, but no t be limited to, a description of progress along the critical path in terms of days ahead or behind the Schedule dates, any problem areas (current and anticipated), any delaying factors and their impact, and an explanation of any corrective actions taken o r proposed. The narrative report shall state any and all changes made in the Schedule since the previous update(s) and detail all activities or portions of activities, including dollar value, completed during the update period. The original accepted Sch edule shall have the sum of all activity costs equal to the Contract Bid Amount. Change Orders, Value Engineering and other required project modifications shall be incorporated into the Schedule as necessary to reflect the actual cost and scope of work being performed. Total Project costs expended and remaining should be ostensibly accurate on Schedule updates. However, the Schedule updates shall be maintained in such a way as to accurately reflect the progress of the project by the duration of remaining work. Extension of Interim Completion Dates, the Contract Completion Date, or the revised Contract Completion Date will be governed by the provisions of 108.6. If the Division revises work which would affect the sequence of operations or duration of time on work activities, the Contractor shall submit to the Engineer, within seven (7) calendar days after receipt of the revision, a written report in accordance with 108.6 outlining the effect on work time and cost that the revision is expected to have on the Schedule. 108.3.5 -Submission of Revised Construction Schedule: The Engineer shall request the Contractor to submit a revised Schedule when any one of the following conditions is reflected by the latest Schedule:
1.A delay greater than ten (10) cal endar days in the completion of any critical activity;
2.The performance of any work in a sequence or manner which varies from that represented on the Schedule;
3.The addition, deletion, or revision of activities required by Contract modification. The revis ed Schedule shall indicate all the requirements described in Section 108.3.2 and 71 shall include all additional resources (labor, material, and equipment) and modification(s) of operations necessary to meet the contract time requirements. The Engineer will review the revised Schedule and supporting documentation for compliance with the Contract. The Contractor shall incorporate any compliance recommendations made in the Engineer's review. Should the Contractor fail to submit a revised Schedule within seven (7) calendar days of the Engineer's written request, the Engineer may withhold estimate payments for any item of work under the Contract until such Schedule is submitted. 108.4 -LIMITATION OF OPERATIONS : The Contractor shall conduct the work at all times in such manner and in such sequence as will assure the least interference with traffic. The Contractor shall have due regard to the location of detours and to the provisions for handling traffic. The Contractor shall not open up work to the prejudice or detriment of work already started, and the Engineer may require the Contractor to finish a section on which work is in progress before work is started on any additional sections i f the opening of such section is essential to public convenience. 108.5 -CHARACTER OF WORKERS; METHODS AND EQUIPMENT : The Contractor shall at all times employ sufficient labor and equipment for prosecuting the several classes of work to full completion in the manner and time required by these Specifications. All employees shall have sufficient skill and experience to perform properly the work assigned to them. Employees engaged in special work or skilled work shall have sufficient experience in such work and in the operation of the equ ipment required to perform all work properly and satisfactorily. Any person who, in the opinion of the Engineer, does not perform his/her work in a proper and skillful manner or is intemperate or disorderly shall, at the request of the Engineer, be remove d forthwith. Any Contractor or his/her subcontractor employing such person shall not reemploy such person on the project without the written approval of the Engineer. Should a Contractor fail to remove such a person or persons as required above or fail t o furnish suitable and sufficient personnel for the proper prosecution of the work, the Engineer may suspend the work by written notice until such order is complied with. All equipment which is proposed to be used on the work shall be of sufficient size a nd in such mechanical condition as to meet requirements of the work and to produce a satisfactory quality of work. Equipment used on any portion of the project shall be such that no damage to the roadway, adjacent property, or other highways will result f rom its use. When the methods and equipment to be used by the Contractor in accomplishing the construction are not prescribed in the Contract, the Contractor is free to use any methods or equipment that the Contractor demonstrates will accomplish the Cont ract work in conformity with the requirements of the Contract. When the Contract specifies that the construction be performed by the use of certain methods and/or equipment, such methods and/or equipment shall be used unless others are authorized by the E ngineer. Should the Contractor desire to use a method or type of equipment other than specified in the Contract, the Contractor shall request authority from the Engineer to do so. The request shall be in writing and shall include a full description of th e methods and equipment proposed to be used and an explanation of the reasons for desiring to make the change. If approval is given, it will be on the condition that the Contractor shall be fully responsible for producing construction work in conformity with Contract requirements. If, after trial use of the substituted methods or equipment, the Engineer determines that the work produced does not meet 72 Contract requirements, the Contractor shall dis continue the use of the substitute methods or equipment and shall complete the remaining construction with the specified methods or equipment. The Contractor shall remove the deficient work and replace it with work of specified quality, or take such other corrective action as the Engineer may direct. No change will be made in basis of payment for the construction items involved nor in Contract time as a result of authorizing a change in method or equipment under these provisions. 108.6 -DETERMINATION AND EXTENSION OF CONTRACT TIME : 108.6.1 -General: The Division shall determine and specify in the Contract the number of working days and/or a fixed calendar date allowed for completion of the Work, hereinafter called Contract Time. A potential working day is every day on the calendar except Saturday, Sunday and holidays as set forth in Subsection 101.2. When the Contract Time is specified on a working day basis, the Engin eer will inform the Contractor weekly, by written statement, of the number of working days charged for the preceding week, the accumulated number of working days charged against the Contract, and the number of working days remaining for completion of the Contract. The Contractor shall submit in writing to the Engineer any protest concerning the weekly statement within seven
7.calendar days after receipt of the statement. The written protest shall set forth what the Contractor consider ed incorrect, along with supporting information; otherwise, the statement shall be deemed to have been accepted by the Contractor as correct. The Engineer shall review any such protest and supporting information and shall render a decision either affirmin g or correcting the number of working days previously reported for the contested week, within fourteen (14) calendar days after receipt of the written protest. When the Contract Time is specified on a fixed calendar date basis, it will consist of the number of calendar days counting from the effective date of the Engineer’s issuance of the Notice to Proceed or Conditional Notice to Proceed to the calendar date specified for completion of the project, including all Saturdays, Sundays, holidays, and non -working days. All calendar days elapsing between the effective dates of any orders of the Engineer to suspend work and to resume work for suspensions not the fault of the Contractor shall be excluded. The work on the Contract will be considered substantial ly complete when all Items of Work are complete, as reasonably determined by the Engineer; with the exception of permanent roadway striping. When the Project is considered substantially complete, the Contract time charges shall be discontinued prior to fi nal acceptance being made by the Engineer as prescribed in 105.16. 108.6.2 -Extension of Contract Time: The Contractor shall be responsible for any delays caused by failing to start a work activity on the earliest date any activity can begin after its predecessors have been completed, unless the activity has float. The Contractor shall also be responsible for any delays caused by lack of continuous effort, inadequate allocation and scheduling of resources and coordination of the work, inadequate or insu fficient application of resources, or inability to meet interim completion dates due to Contractor's approach to the work. Such delays shall not be considered for an extension of Interim Completion Dates, Contract Completion Date, or the Revised Contract C ompletion Date. If the Contractor finds it impossible for reasons beyond his control to complete an activity or the work within the Contract time as specified or as extended according to the provisions of this Section, the Contractor shall notify the Eng ineer, in writing, within seven (7) calendar days of the Contractor becoming aware of the following: 73 1) A problem that develops requiring direction to the Contractor by the Engineer;
2.The occurrence of any delay including delays in critical path activities;
3.In the absence of a Schedule, delays in the controlling operation during the prosecution of Work that the Contractor believes may warrant revision of an Interim Completion date or the Contract Completion Date. The notification shall set for th the reasons that shall justify the granting of the request, and as a minimum, identify the cause(s) for the delay, the particular critical path activity(s) or controlling operation(s) affected, the effect of any Division act or omission on each activity or operation delayed, and the significant dates that encompass the periods of delay. On projects with Schedules, the Contractor shall submit a Schedule update within seven (7) calendar days of becoming aware of the delay and another Schedule update when the Contractor indicates or the Engineer believes the delay has been resolved. In instances where controlling or critical path activities are claimed by the Contractor or determined by the Division to be delayed, the notification and Schedule update shall be considered by the Division as a request by the Contractor for a Contract time extension. If the Schedule updates relating to the delays, are not received as mentioned above, the Contractor forfeits his rights to any claims or time extensions. In the absence of a Schedule, the controlling item will be determined from the Division’s records. The Engineer will inform the Contractor weekly, by written statement, of controlling items identified for the previous week. The Contractor shall submit in writin g to the Engineer any protest concerning the weekly statement within seven (7) calendar days after receipt of the statement. The written protest shall set forth what the Contractor considered incorrect, along with supporting information; otherwise, the st atement shall be deemed to have been accepted by the Contractor as correct. The Engineer shall review any such protest and supporting information and shall render a decision either affirming or correcting the controlling items reported for the contested w eek. If notification is not given by the Contractor within the prescribed time of the Contractor becoming aware of any delay, or if, having given notification as provided herein, the Contractor does not afford the Engineer proper facilities for keeping s trict account of actual costs and loss of time, the Contractor waives any claim for additional compensation and Contract time extension. Delay costs allegedly incurred more than the allowable seven (7) days before the Contractor notifies the Engineer in a ccordance with this provision shall not be allowed. If the Engineer determines that the Work was delayed because of conditions beyond the control of and without the fault or negligence of the Contractor, the Engineer may extend the time for project compl etion as the conditions justify. Only delays in the activities on the critical path, or in the absence of scheduling requirements, delays in the controlling operation will be considered for a Contract time extension, provided when required, the Contracto r has submitted proper notification and supporting documentation justifying the request. For projects with Schedule requirements, Time Extension reviews will be evaluated along the critical path, as determined by the project’s longest path. Time Extensio n reviews will consider the free float and total float of all relevant activities in determining the actual project delay. The Engineer shall within fourteen (14) calendar days advise the Contractor in writing of the approval or rejection of the time exte nsion request. If approved, the extended time for completion shall then be in full force and effect the same as though it were the original time for completion. 74 108.6.2.1 -Excusable Noncompensable Delays: An excusable noncompensable delay is a delay in the critical path activity, or in the absence of a project Schedule, a delay in the controlling operation that was beyond the Contractor's control and not caused by the Contractor's fault or negligence. Consideration may be given to an adjustment in Contr act time, but no consideration shall be given for additional monetary compensation. Excusable noncompensable delays include, but are not limited to:
1.Delay of Notice to Proceed or Conditional Notice to Proceed of more than thirty (30) calendar days after the contract award date for reasons beyond the control of and without the fault or negligence of the Contractor. Consideration for an adjustment of Contract time will be limited to the number of calendar days in excess of thirty (30) calendar days, counting from the Contract award date to the effective date of the Engineer's issuance of the Notice to Proceed.
2.Delay of the Notice to Proceed more than seven (7) calendar days after the contract award date for contracts with Incentive/Disincentive clause s, as long as the reasons are beyond the control of and without the fault or negligence of the Contractor. Consideration for an adjustment of Contract time will be limited to the number of calendar days in excess of seven (7) calendar days on contracts wi th Incentive/Disincentive clauses, counting from the Contract award date to the effective date of the Engineer's issuance of the Notice to Proceed.
3.Delays due to acts of God, labor strikes (not within the Contractor's power to settle) freight embargoes, states of national emergency, or other reasons beyond the control of the Contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the Engineer.
4.Delays in obtaining materials due to extraordinary market conditions caused by industry -wide strike, natural disaster, area -wide shortage, official federal declaration that a material is critical due to national defense efforts, or for other reasons beyond the contr ol of the Contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the Engineer.
5.Delays due to adverse weather. Lost days due to adverse weather may include:
1.Days with inc lement weather or conditions beyond the Contractor’s control that prevent the involvement of their normal working forces engaged in performing critical or controlling item(s) of work for at least sixty (60) percent (60%) of the total scheduled daily hours, and
2.Days when weather conditions prevent work from beginning at the regular time and the crew is dismissed, regardless of whether or not conditions improve for the rest of the day. An adjustment of Contract time shall not be considered for loss of time d ue to adverse weather:
a.Before the start of construction operations;
b.During periods when no on site - work on a controlling operation or critical path activity occurs;
c.After November 30 and before April 1 of the following year;
d.After the Contract completion date or the Revised Contract completion date.
6.Consideration for an adjustment of contract time shall be limited to the number of potential working days lost each month, as determined by the Engineer. Notification by the Contractor of weather related dela ys may be consolidated into a single request 75 that shall be included in the narrative letter transmitting the monthly Schedule update. In addition, only weather related delays that correspond to an actual project delay will be allowable for consideration. On projects that do not require Schedules, the request shall be received within seven
7.calendar days of the end of the month in which the weather delays occurred . If a Schedule is not required for the project, any time extensions granted by the Engineer shall be on the basis of an additional working day for each potential working day lost. The allowable time required for the Division to take action on properly p repared submissions shall be fourteen (14) calendar days after receipt unless otherwise specified in the Contract documents. 108.6.2.2 -Excusable Compensable Delays: An excusable compensable delay is a delay in the critical path activity, or in the absen ce of a project Schedule, a delay in the controlling operation that was caused solely by the Department. An adjustment in Contract time may be considered along with additional monetary compensation, if entitled. Excusable compensable delays include:
1.Dela ys in a critical path activity, or in the absence of a project Schedule, a delay in the controlling operation due to contract modifications resulting in the performance of added work, revised work, or work in greater quantities than those set forth in the Proposal except as provided in Subsection 104.11. The Division reserves the right to negotiate unit prices that include the cost for additional resources (labor, material and equipment) required to complete added work, revised work, or work in greater quantities within the originally scheduled dates, thereby negating the need for a Contract time adjustment. Should a substantial delay be anticipated, the Department may request the Contractor to submit his/her costs and conditions for demobiliza tion and remobilization. The Department may pay the Contractor for demobilization/remobilization expenses in lieu of further idle equipment costs. Consideration for adjustment of Contract time for added or revised work shall be limited to the extra time allowances as agreed on and specified in the Change Order that covers the added or revised work. Mark -up for the added or revised work will be negotiated and specified in the Change Order. The adjustment of contract time and the allowable mark -up will be full and just compensation for any and all claims that the Contractor may have regarding the added or revised work. No additional consideration will be given for Home office overhead and/or Field office overhead. Any adjustment of Contract time for Wor k authorized in accordance with 104.11 that requires the performance of work in greater quantities than those specified in the Contract shall be made at the discretion of the Engineer in accordance with one of the two options below:
a.The extra time allowanc es as agreed on and specified in the Change Order that covers the additional or increased work; or
b.The same ratio that the total cost of the added or increased work shall bear to the total contract bid amount, provided the added or increased work is judged to be a critical path activity or, in the absence of a project Schedule, a controlling operation.
2.Loss of time due to differing site conditions. Consideration for adjustment of Contract time shall be according to Section 104.9.
3.Loss of time due to any written orders of the Engineer suspending work or delaying critical path activities on the project not the fault of the Contractor. Consideration for adjustment of Contract time shall be according to Section 104.10.
4.Loss of time due solely to acts or omissions by the Division and not caused or contributed to by the Contractor's fault or negligence. The allowable time required for the Division to take action on properly prepared submissions shall be fourteen (14) calendar days after receipt unless oth erwise specified in the Contract documents. Consideration for an adjustment of Contract time shall be limited to the number of potential working days lost as determined by the Engineer. 108.7 -COMPLETION DATES : 108.7.1 -Failure to Complete on Time a nd Liquidated Damages: Time is an essential element of the Contract, and it is important that the work be completed within the time specified. The cost to the Division for the administration of the Contr act, including engineering, inspection, and supervision, will increase as the time required to complete the work is increased. Therefore, for each calendar day the project is deemed not to be Substantially Complete after the Contract Time specified for co mpletion of the work, subject to such extensions of contract time required or permitted in 108.6, the Division will assess liquidated damages against the Contractor. Daily charges will be deducted for each calendar day, as defined in 101.2, on all contrac ts, except daily charges will not be deducted between November 30 and April 1 . The total amount of daily charges will be deducted from any monies due the Contractor, not as a penalty but as liquidated damages. Unless specified elsewhere in the Contract, the amount of the daily charge will be calculated using Table 108.7.1 on the da te of the project letting. TABLE 108.7.1 Schedule of Liquidated Damages Original Contract Amount Daily Charges For More Than To and Including Per Calendar Day $0 $500,000 $350 $500,000 $2,000,000 $650 $2,000,000 $10,000,000 $1,600 $10,000,000 $25,000,000 $3,100 $25,000,000 $4,200 108.7.2 -Interim Completion Date: When an interim completion date has been specified in the Contract documents for the Contractor to complete a specific amount of work, pay item, or structure, and if the Contractor fails to meet the interim date, the Division will assess a per calendar day charge as liquidated damages, as specified in Section 108.7.1, unless otherwise specified elsewhere in the Contract documents, until such amount of work, pay item, or structure has been completed. Extension of interim completion dates will be governed by the provisions of 108.6. The liquidated damages provided for in this subsection are in addition to those provided for elsewhere in this Section. 108.7.3 -Incentive/Disincentive for Early Completion: When an Incentive/Disincentive (I/D) provision has been included in the Contract documents, Subsection 108.7.1 relating to liquidated damages remains in effect and is applicable to the total Contract time; however, there will be concurrent assessment of liquidated damages with disincentive assessments. Extension of the date(s) established for completion of work stages covered by the I/D provision and/or the Contract completion date will be governed by the provisions of 108.6. 108.8 -DEFAULT AND TERMINATION OF CONTRACT : If the Contractor :
1.Fails to begin work under the Contract within the time specified in the "Notice to Proceed"; or
2.Fails to perform the work with sufficient employees and equipment or sufficient materials to assure the prompt completion of the work; or
3.Performs the work unsuitably or neglects or refuses to remove materials or to perform anew such work as may be rejected as unacceptable and unsuitable;
4.Discontinues the prosecution of the work; or
5.Fails to resume work which has been discontinued within a reasonable time after notice to do so; or
6.Becomes insolvent or is declared bankrupt or commits any act of bankruptcy or insolvency; or
7.Allows any final judgment to stand against the Contractor unsatisfied for a period of ten (10) days; or
8.Makes an assignment for the benefit of creditors; or
9.For any other cause whatsoever, fails to carry out the Contract terms in an acceptable manner; the Engineer will give notice in writing to the Contractor and his/her Surety of such delay, neglect or default. If the Contractor or Surety, within a period of ten (10) days after such notice, shall not proceed in accordance therewith, the Division will, upon written notification from the Engineer of the fact of such delay, neglect, or default and the Contractor's failure to comply with such notice, have full power and authority, without violating the Contract, to terminate the Contract. The Division may appropriate or use any or all materials and equipment on the ground as may be suitable and acceptable and may enter into an agreement with another contractor for the completion of the Contract according to the terms and provisions thereof, or use such other methods as in the opinion of the Engineer will be required for the completion of the Contract in an acceptable manner. All cost charges incurred by the Div ision, together with the cost of completing the work under Contract, will be deducted from any money due or which may become due the Contractor. If such expense exceeds the sum which would have been payable under the Contract, then the Contractor and the surety shall be liable and shall pay to the Division the amount of such excess. 108.9 -TERMINATION OF CONTRACT FOR CONVENIENCE OF THE STATE : The Division may terminate the entire Contract or any portion thereof, if the Engineer determines that a termination is in the Division’s interest. The Engineer will deliver to the Contractor a Notice of Termination specifying the extent of termination and the effective d ate.
1.Submittals and Procedures - After receipt of a Notice of Termination, the Contractor shall immediately proceed with the following obligations: 78 a. Stop work as specified in the notice.
b.Place no further subcontracts or orders for materials, services, or fa cilities for the terminated portion of the Contract.
c.Terminate all subcontracts that relate to the work terminated.
d.Settle all outstanding liabilities and termination settlement Proposals arising from the termination of the contract or portion thereof.
e.Transfer title and deliver to the Division (1) fabricated, partially fabricated, or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated, and (2) the completed or partially completed pl ans, drawings, information, and other property that, if the Contract had been completed, would be required to be furnished to the Division.
f.Complete performance of the work not terminated.
g.Acceptable materials obtained by the Contractor for the Project that have not been incorporated in the work shall be inventoried in conjunction with the Engineer at a date identified by the Engineer.
h.Take any action necessary, or that the Engineer may direct, for the protection and preservation of the property related to the Contract that is in the possession of the Contractor and in which the Division has or may acquire an interest.
2.Settlement Provisions - When the Division orders termination of all or a part of the Contract effective on a certain date, comple ted items of work as of that date will be paid for at the Contract bid price. Payment for partially completed work will be made either at agreed prices or under the provisions below. Items that are eliminated in their entirety by such termination shall b e paid for as provided in Subsection 109.5.
a.Additional Costs - Within sixty (60) working days of the effective termination date, the Contractor shall submit a claim for additional damages or costs not covered above or elsewhere in the Contract. Such claim may include such cost items as reasonable idle equipment time, mobilization efforts, bidding and project investigative costs, overhead expenses attributable to the project terminated, legal and accounting charges involved in claim preparation, subcontract or costs not otherwise paid for, actual idle labor cost if work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original Contract, and any other cost or damage for which the Contractor feels reimbursemen t should be made. The Contractor and the Division may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. Anticipated profits will not be considered as part of any settlement. The agreed amount may not exceed the total Contract price as reduced by the amount of payments previously made, and the Contract price of work not terminated. The Contract shall be amended, and the Contractor paid th e agreed amount.
b.Additional Cost Review - If the Contractor and the Division fail to agree on the whole amount to be paid the Contractor because of the termination of work, the Division will pay the amounts determined as follows, but without duplication of any amounts agreed upon above:
i.For Contract work performed before the effective date of termination, the total (without duplication of any items) of:
1.The cost of work performed; 79 2) The cost of settling and paying termination settlement Proposals under termi nated subcontracts that are properly chargeable to the termination portion of the Contract if not included in subparagraph 1 above; and
3.A sum, as profit on (1) above determined by the Division to be fair and reasonable. The Division shall allow no profit under this subdivision if the Contractor’s costs incurred on work performed exceed the bid item payments made. ii. The reasonable costs of settlement of the work terminated, including:
1.Accounting, legal, clerical, and other expenses reasonably necessary for th e preparation of termination settlement proposals and support data;
2.The termination and settlement of subcontracts (excluding the amounts of such settlements); and
3.Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory. iii. Except for normal spoilage, and to the extent that the Division expressly accepts the risk of loss, Division will exclude from the fair value, all that is destroyed, lost, stolen, or da maged so as to become undeliverable to the Division or to the buyer. iv. In arriving at the amount due the Contractor under this clause, there will be deducted the following:
1.All unliquidated advance or other payments to the Contractor under the terminated por tion of the Contract;
2.Any claim that the Division has against the Contractor under the Contract; and
3.The agreed price for or the proceeds from the sale of materials, supplies, or other things acquired and sold by the Contractor not recovered by or credited to the Division. If termination is partial, the Contractor may file a Proposal with the Division for an equitable adjustment of the price(s) of the continued portion of the Contract. The Division will make any equitable adjustment agreed upon. Any Pro posal for an equitable adjustment under this clause shall be requested within sixty (60) working days from the effective date of termination unless extended in writing by the Engineer. The Division may, under the terms and conditions it prescribes, make p artial payments and payments against costs incurred by the Contractor for the termination portion of the Contract, if these payments will not exceed the amount to which the Contractor is entitled. The Contractor shall maintain and make available all proje ct cost records to the Division for audit to the extent necessary to determine the validity and amount of each item claimed. This includes all books and other evidence bearing on the Contractor’s costs and expenses under the Contract. These records and d ocuments shall be made available to the Division at the Contractor’s office, at all reasonable times, without any direct charge. If approved by the Division, photographs, microphotographs, or other authentic reproductions may be maintained instead of orig inal records and documents. Termination of the Contract or portion thereof shall not relieve the Contractor of contractual responsibilities of the work completed, nor shall it relieve the Surety of its obligation for and concerning any just claim arising out the work performed. 80 108.10 -FIELD OFFICE OVERHEAD : The Division may consider compensating the Contractor for field office overhead costs as long as the Contractor can provide documentation that the f ield office overhead costs are not covered by the project bid items.
108.11 Home Office Overhead :
The Department shall consider payment to the Contractor for any unabsorbed or extended home office overhead costs for which payment is not previously provided for if all of the following criteria are met:
1.The Contractor has incurred an excusable, compensable delay that delays the Work at least forty -five (45) calendar days beyond the Scheduled Contract Completion Date or the Revised Completion Date. These days are cumulative throughout the project.
2.The delay for which payment of home office overhead is sought is only due to delays defined in 108.6.2.2. Payment will be considered for every eligible day beyond the Scheduled or Revised Contract completion date at the rate determined below up to substantial completion, as determined by the Engineer.
108.11.1 Home Office Overhead Rate: Calculate the home office overhead daily rate
using the following formula: (A ÷ B) x C = D Then (D ÷ E) = F Then (F x G) = Amount Claimed Where: A = Contract billing amount B = Contractor’s total billings for Contract period C = Contractor’s total overhead for contract period D = Overhead allocable to Contract E = Days of performance F = Daily contract overhead G = Number of days of delay Contract duration term, E, includes every calendar day from the execution of the Contract, unless otherwise specified by the Engineer, to the Scheduled Contract Completion Date or Revised Contract Completion Date. When the Contractor requests home office overhead compensation for a subcontractor, use the above formula to calculate the subcontractor’s daily home office overhead rate; however, in the subcontractor calculation, A is equal to the subcontractor’s portion of the o riginal contract amount as determined by the sum of all approved subcontracts issued for each individual subcontractor. Formula items B and C are subject to verification by audit at the election of the Engineer. Any and all costs associated with the aud it will be the sole responsibility of the Contractor. Information obtained through any such audit shall, if requested by the Contractor, be treated as a trade secret for purposes of exemption from disclosure under the West Virginia Freedom of Information Act.
Source: West Virginia Standard Specifications for Road and Bridge Construction, 2023 Edition. Pages 72–90 of 1,006.