Prosecution and Progress
108.1Subletting of Contract
108.1.1 Contractor’s Required Participation
1 The contractor is responsible for completion of the project as specified; no subcontract releases the contractor from contract obligations. Perform work equaling at least 30 percent of the value of the original contract amount. Purchasing materials or placing employees on contractor’s payroll for subcontracted work will not be considered as part of the 30 percent. In computing the contractor’s required participation, the department will exclude the value of designated “specialty items” from the contract amount and the subcontracted amount.
108.1.2 Subcontracts and Subcontractors
1 With the State Construction Engineer’s written approval, the contractor may sublet portions of the contract. In turn, subcontractors may sublet to lower tier subcontractors, but no subcontractor at any tier may sublet more than 70 percent of the value of the work for which it has subcontracted.
2 Submit subcontract requests to the State Construction Office for approval before the start of subcontracted work, and for every subcontractor at every tier, in the department’s Construction Management System (CMS) . Include a copy of the subcontract agreement. For Federal Aid projects, include the “Equal Employment Opportunity Affidavit” (Form FR-2200) and FHWA 1273.
3 With each subcontract request, submit proof of workers’ compensation, employers’ liability insurance, and unemployment insurance in accordance with Subsection 107.4, Contractor’s Insurance Requirements. The department will not approve requests without this documentation.
4 Do not allow a subcontractor to work until the department has approved the subcontract. W ork performed without an approved subcontract will be designated as unacceptable work in accordance with Subsection 105.1, Authority of the Engineer. The engineer will suspend work by a subcontractor without an approved subcontract.
5 Submit to the department ’s Civil Rights Office the DBE Notification of Intent to Subcontract, Federal -Aid Projects (Form DBE-2), for each disadvantaged business enterprise committed to in the contract. No subcontracts will be approved until all Form DBE- 2 paperwork has been received.
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6 The department may reject a subcontract if at the time of the request, the proposed subcontractor has failed to pay or satisfactorily settle any claim on record with the department.
7 The department may reject a contractor if it has been determined that he or she did not perform at least 30 percent of the work with his or her own forces under a previous department contract.
108.1.3 Work Performed by Equipment Rental Agreement
1 Submit written notice to the engineer before starting work with rented equipment. Include the following information:
2 The engineer may request a copy of the rental agreement.
3 Except for truck drivers who haul and do not further handle or place material from a commercial source to the project, wage determination decisions specified in the contract apply to operators of rented equipment . Maintain, and provide as requested, payroll documentation of operators’ names and wages, plus substantiation that operators (except the exempt truck drivers) are carried on the contractor or subcontractor’s payroll.
108.2Notice to Proceed
1 Start work when the department has provided a fully executed contract in accordance with Subsection 103.6, Execution and Approval of Contract, and a signed letter giving Notice to Proceed.
108.3Prosecution and Progress
108.3.1 General
1 Notify the engineer at least 24 hours before changing shift schedules or project operations. If prosecution of the work is stopped for any reason:
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2 Do not work on Sundays or holidays without written authorization from the engineer. Request authorization at least 48 hours in advance.
108.3.2 Schedule
108.3.2.1 General
1 Provide a schedule using the bar chart method in accordance with Subsection 108.3.2.2, Bar Chart Method, except when the contract specifies a schedule using the critical path method (CPM). With the engineer’s approval, a CPM schedule may be provided in place of the bar chart schedule meeting the requirements of a bar chart.
2 Plan and schedule the project and report progress to the engineer. Ten working days before but no later than the preconstruction conference, submit a project schedule in accordance with the requirements for a bar chart in Subsection 108.3.2.2, Bar Chart Method (or, if applicable, Subsection 108.3.2.3, Critical Path Method). Ensure that the schedule meets specified partial and contract completion dates.
3 The engineer will review the schedule at the preconstruction meeting. Submit the revisions to the schedule five working days after the preconstruction conference. No more than five working days after receipt of the revisions, the engineer will accept the schedule or ask for more information. The kinds of information requested may include estimated quantities and production rates used to determine the duration of an activity or item of work. Provide the information and resubmit the schedule no more than five calendar days after the engineer’s request.
4 The engineer will accept or reject the schedule based solely on completeness. Acceptance does not modify the contrac t or constitute endorsement or validation by the engineer of the contractor’s logic, activity durations, or assumptions in creating the schedule. The department may withhold monthly progress payments until the engineer accepts the schedule.
5 Submit a schedule update to the engineer on the first working day of each month, or as requested by the engineer. The department may withhold monthly progress payments if schedules are not updated as specified or requested.
108.3.2.2 Bar Chart Method
1 The department requires the completion and use of a bar chart and monthly updates:
1.1The activities needed to perform and complete the work, activities that might
delay contract completion, and critical activities;
1.2The planned start and completion dates for each activity, the duration of
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each activity, and the sequencing of all activities;
1.3The quantity and the estimated daily production rate for critical activities;
1.4An indication of how the schedule accommodates adverse weather days for
each month;
1.5Include in the schedule the following items when they impact the schedule
or as required by the engineer:
1.5.1Dates related to the procurement of materials, equipment, articles of
special manufacture, etc.;
1.5.2Dates related to the submission of working drawings, plans, and
other data specified for review or approval by the department;
1.5.3Dates related to required inspections of structural steel fabrication,
etc.; and
1.5.4Dates related to specified activities by the department and third
parties.
for each activity shown on the most recent accepted schedule. For newly started or finished activities, include the actual start or finish date. For activities previously started and still ongoing, show the remaining duration and planned finish dates. Show unanticipated supplier delays or shortages.
108.3.2.3 Critical Path Method
1 Use software as designated in the contract. E- mail the initial schedule and updates to the engineer.
2 Within 10 calendar days of receipt of an initial CPM schedule or an updated schedule, the engineer will accept the schedule or request more information. If the latter, provide the information, make the appropriate adjustments, or both, and resubmit the schedule no more than 10 calendar days after the engineer’s request.
3 The department requires that CPM scheduling proceed in three stages:
until accepting the initial CPM schedule. Prepare and complete a schedule for the first 60 calendar days of work that meets the requirements for an initial bar chart contained in Subsection 108.3.2.2, Bar Chart Method. W ith prior approval, the engineer may accept activity durations of more than 15 working days. Include as well a summary bar chart schedule for the balance of the project; activity durations on
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the summary chart may exceed 15 working days. Submit an updated version of the bar chart every 14 calendar days until the department accepts the initial CPM schedule.
chart, submit an initial CPM schedule to the engineer for review. Define and sequence activities to accurately describe the project and to meet contract requirements with respect to; the scope of work, phasing, accommodations for traffic, interim, milestone, and project completion dates. Use working days to create the schedule and begin with the date of the Notice to Proceed. Unless otherwise approved by the engineer, also use, provide, or include the following:
2.1The planned early and late start and finish dates for each activity;
2.2The duration of each activity, with activities of more than 15 working days
in duration broken into two or more activities distinguished by location or other feature;
2.3A logic diagram in color, depicting no more than 50 activities on each 11 in
× 17 in [280 mm × 430 mm] sheet and with each sheet including title, match data for diagram correlation, and a key. In the diagram (which may be a time-scaled, Program Evaluation and Review Technique (PERT) chart), show the sequence of and the scheduling interrelationships among activities;
2.4Only finish to start interrelationships among activities and without leads
or lags;
2.
as the only constraints in the schedule logic;
2.6The quantity and the estimated daily production rate for critical activities;
2.7Activities related to the procurement of materials, equipment, articles of
special manufacture, etc.;
2.8Activities related to the submission of working drawings, plans, and other data
specified for review or approval by the engineer;
2.9Activities related to required inspections of structural steel fabrication,
etc.;
2.10Activities related to specified activities by the department and third parties;
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2.11A narrative report indicating the workdays per week, holidays, number of
shifts per da y, number of hours per shift, and how the schedule accommodates adverse weather days for each month;
2.12Tabular sorts of activities by early start, responsibility by early start, area by
early start, predecessor and successor, and total float; and
2.13Sixty-day look ahead bar charts by early start
work’s status. In the update, provide, or include the following:
3.1The actual start and finish dates of each activity or remaining durations of
activities started but not yet completed;
3.2A narrative summary of progress during the month, shifts in the critical
activities from the previous update; sources of delay; potential problems; work planned for the next 30 calendar days; and revisions to the CPM schedule, including but not limited to additions, deletions, or revisions to activities due to the issuance of a “Contract Amendment” (Form E- 61), revisions to activity durations, or revisions to the planned sequence of work or the method and manner of its performance; and
3.3Paper copies of the tabular sorts for total float and activity by early start and
the logic diagram (as requested by the engineer).
108.3.2.4 Schedule Revisions
1 The engineer may request a schedule revision. Circumstances leading to such a request include but are not limited to the following:
days or more;
and
revising activities, changes the planned sequence of work or the method and manner of its performance.
2 Submit the revised schedule no more than 10 calendar days after the engineer’s request. Within 10 calendar days of receipt, the engineer will accept the revised schedule or request more information. If the latter, provide the information, make the appropriate adjustments, or both, and resubmit the revised schedule no more than 10 calendar days after the engineer’s request.
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108.3.2.5 MEASUREMENT and PAYMENT
1 Bar chart schedules are incidental to the contract’s pay items. The department may withhold the monthly estimate if updates are not submitted as required.
2 The engineer will measure CPM Schedule as a complete unit, and the department will pay as follows:
Pay Item
Pay Unit Measure to the Nearest Pay to the Nearest CPM Schedule LS LS LS
3 The engineer will pay as follows:
after acceptance of the initial schedule;
work representing 40 percent of the contract amount, excluding the pay item CPM Schedule; and
work representing 80 percent of the contract amount, excluding the pay item CPM Schedule.
4 The department may withhold monthly progress payments until the contractor submits the initial CPM schedule.
108.3.3 Preconstruction Conference
1 The engineer will schedule and convene, at a mutually convenient time before the start of work, a preconstruction conference. Before or at the meeting, provide the following, if applicable:
Officer Affidavit” (Form E-112) for the contractor and each subcontractor;
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Subsection 111.3, Erosion and Pollution Controls;
information for the traffic control maintainer and traffic control supervisor;
authorized to sign contract documents and project records;
accordance with Subsection 109.5, Monthly Progress Payment;
Subsection 104.1.1, Voluntary Partnering;
numbers and qualifications of the individuals responsible for the contractor’s quality control program, and the material sampling and testing;
Workforce Services.
2 The engineer will schedule additional conferences as needed.
108.4Requirements for Workers, Methods, and Equipment
1 Provide enough qualified workers and enough capable equipment to complete the project in accordance with the contract.
2 Provide workers that are sufficiently skilled to perform the work assigned to them. In writing, the engineer may direct the removal from the project of any person, regardless of employer, who is incompetent, intemperate, disorderly, or insubordinate. Through written notice, the engineer may suspend the work for failure to comply with such a directive or for failure to provide enough qualified workers.
3 Make requests to use other methods or equipment than those specified in writing; do not proceed without the engineer’s written approval. Include in the request a description of the proposed alternatives and the reasons for seeking a change. Approval does not relieve
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the contractor from the requirement to produce work in accordance with the contract. The use of alternative methods or equipment resulting in work that fails to meet contract requirements may lead the engineer to, in writing:
equipment; or
work and its replacement using the original specified methods and equipment.
4 Approval of a change in methods or equipment does not imply approval of a change in pay item prices or the contract completion date.
108.5Suspension of Work
108.5.1 General
1 The provisions of Subsection 108.5, Suspension of Work, apply to full and partial suspensions. In the case of partial suspensions, they apply to suspended portions of the project; contract requirements governing work on continuing portions of the project remain in effect.
2 Work suspensions may occur due to seasonal conditions from December 1 to March 31 or for other reasons. The contractor may ask the engineer to suspend the project in writing. Do not suspend operations or remove necessary equipment or materials without approval from the engineer on the “Status of Project” (Form E-96).
3 During delays or suspensions, if the traveling surface is a leveling course or nonpaved surface, maintain the roadway for traffic use (snow removal and placing of sand) and the quality of the surface course until the placement of additional courses or temporary surfacing, at no additional cost to the department.
4 If placement of concrete pavement or a full lift of plant mix pavement is not completed before delays or suspension of work, provide, place, maintain, and remov e temporary plant mix pavement in accordance with Subsection 401.4.20.3, Temporary Surfacing. If the contract does not include a plant mix pavement mix design, obtain the engineer’ s approval of the proposed design before use.
5 During suspensions, at no additional cost to the department, store materials and equipment:
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and
6 Maintain living material in new plantings, seedings, and soddings in an acceptable growing condition and protect from injury, at no additional cost to the department.
7 Prevent damage to or deterioration of work already performed.
8 At no additional cost to the department, provide roadway drainage, temporary structures necessary for public travel throughout the project, and required temporary traffic control, and remove and dispose of work or materials used for temporary maintenance, such as temporary surfacing.
9 Repair or replace materials lost or damaged during the suspension at no additional cost to the department.
10 Before suspension, protect slopes without vegetation in accordance with Subsection 215.4.3.9, Erosion Control Agent, at no additional cost to the department. Throughout the suspension, maintain appropriate measures for control of soil erosion, and water and air pollution in accordance with Section 215, Storm Water Pollution Prevention, at no additional cost to the department.
11 The department will maintain and repair damage to portions of the work accepted in accordance with Subsection 113.4, Final Acceptance.
108.5.2 Engineer-Ordered Suspensions
1 The engineer may, by issuing a “Status of Project” (Form E-96), suspend the work wholly or in part due to the existence of conditions unsuitable for prosecution of the work, including but not limited to the following:
2 The provisions of Subsection 108.5.4, Repair and Maintenance Related to Nonseasonal Suspensions, apply if the engineer suspends the work because of the preceding items 1, 2, or 3; Subsection 108.5.3, Repair and Maintenance Related to Seasonal Suspensions, applies if the suspension is because of item 4.
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108.5.3 Repair and Maintenance Related to Seasonal Suspensions
1 Do not suspend work until having:
carrying roads, approaches, and crossings in a condition to require only routine maintenance to accommodate safe travel during the suspension;
suspension;
2 When clauses 1 through 5 have been satisfied, the department will assume responsibility for maintaining traffic carrying surfaces during the suspension, including snow plowing and the placing of sand, except for leveling courses and nonpaved surfaces which will be handled in accordance with Subsection 108.5.1, Suspension of W ork, General. The department will maintain traffic control devices and permanent signs.
3 Resume work when conditions are favorable.
4 The department will pay to restore damaged work and traffic-carrying surfaces when the suspension ends, except as specified in Subsection 108.5.1, Suspension of Work, General. The department will pay for materials used at pay item prices or, if the contract does not include appropriate pay items, in accordance with Subsection 109.4, Extra and Force Account Work.
108.5.4 Repair and Maintenance Related to Nonseasonal Suspensions
1 The department will not pay to maintain the project, routes carrying detoured traffic, or for temporary traffic control during a suspension if the contractor suspends work voluntarily for reasons other than seasonal conditions or if actions of the contractor cause the engineer to suspend work. Under these circumstances, make provisions for the continued safe accommodation of traffic.
2 If during a suspension the contractor fails to accommodate traffic or to maintain the project, including temporary traffic control devices, the engineer may direct other organizations to do so. The department will deduct the cost from monies due the contractor or will bill the contractor, as appropriate.
3 Resume work when approved by the engineer. The department will not pay to repair or replace work and the traveling surfaces when the suspension ends.
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108.6Extension to the Contract Completion Date
108.6.1 General
1 The engineer will issue a Monthly Report. This report shows the cumulative progress of the work as of the end of the preceding month relative to the contract completion date. The engineer may discontinue the reports during suspensions.
2 If warranted, the engineer will extend the contract completion date by issuing a “Contract Amendment” (Form E-61). The engineer will do so only if an excusable delay extends the scheduled late finish date beyond the lattermost of the contract completion date or its most recent extension. The engineer will not consider a request to revise partial or contract completion dates without notice as specified in Subsection 104.2.7, Contractor-Engineer Notification, and without documentation from the project schedule, including updates, supporting the need for a revision. The engineer will evaluate the information submitted and determine the time extension due, if any.
3 The engineer will not grant an extension for delays incurred to work activities occurring on days not defined as a “working day” in accordance with Subsection 101.5, Definitions . Nor will the engineer grant an extension based on pleas that the contract specified insufficient time for the completion of the project.
4 The granting of a time extension by the engineer relieves the contractor from liability for the payment of liquidated damages during the period of the extension.
108.6.2 Excusable Delays
1 Excusable delays are delays af fecting working days that the contractor cannot reasonably foresee or avoid and are not the contractor’s fault or responsibility. They include but are not limited to the following:
lays due to floods, tornadoes, lightning strikes, earthquakes, fires, epidemics, or similar natural phenomena;
Adverse Weather;
suppliers’) workforce that are beyond the contractor’s power to settle;
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delays caused by the noncompletion of work by utilities or other third parties; and
Contract Amendments.
108.6.3 Nonexcusable Delays
1 Nonexcusable delays are delays caused by the contractor or that the contractor could reasonably have foreseen or avoided. The engineer will not make an extension to partial or contract completion dates for nonexcusable delays.
108.6.4 Concurrent Delays
1 Concurrent delays are delays occurring at the same time to separate critical activities. When concurrent delays occur, the department will give precedence to nonexcusable over excusable delays in determining extensions to the contract completion date.
108.6.5 Working Day Extensions for Increased Quantities
1 Upon written request from the contractor, the department will allow extensions for increased quantities when final quantities are determined, as shown on the cost summary report generated by the “Monthly Progress Estimate” (Form E-125). The department will base the extension on the ratio of the original contract amount to the total cost of the work performed, computed as follows:
𝑇𝑇𝑇𝑇 = 𝑂𝑂 𝑇𝑇 1.46 �𝑇𝑇𝑇𝑇 𝑇𝑇 𝐶𝐶 − 1� Where:
TE = is the time extension in working days.
OT = is the original contract time and does not include time added by “Contract Amendment” (Form E -61) or the months of December, January, February, and March.
1.46 = is the factor for converting calendar days to working days.
TC = is the total cost of the work performed, including cost increases resulting from “Contract Amendments” (Form E -61) for which an extension was not previously allowed, and excluding costs associated with liquidated damages, incentive/disincentive or bonus payments, and costs for “Contract Amendments” for which additional time has already been allowed.
CA = is the original contract amount.
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2 To determine a revised completion date, the department will add the working days indicated by the formula to the original contract completion date.
108.6.6 Working Day Extensions for Adverse Weather
1 For whole or partial months within the contract time, Table 108.6.6-1, Adverse Weather Days Expected, shows the number of working days included in anticipation of weather that will preclude work. On the Monthly Report, the engineer will show for each month, and for the project to date, the number of actual adverse weather days determined by the engineer and the amount by which this exceeds the number expected.
2 The engineer may extend the completion date if the actual number of adverse weather days exceeds the expected number and the contractor has pursued the work diligently during the month.
Table 108.6.6-1 Adverse Weather Days Expected
Month (1) Workdays Incorporated in Contract Time in Anticipation of Adverse Weather (2) January 8 February 8 March 7 April 6 May 4 June 3 July 2 August 2 September 2 October 4 November 5 December 7
expected lost workdays due to adverse weather
108.7Opening Sections of the Project to Traffic
1 The contract may specify or the engineer may direct the opening to traffic of sections of the project before overall completion of the work. Such a partial opening does not constitute acceptance of the work or any part thereof, nor does it waive any provision of the contract.
2 If the contractor does not complete the work on time, the engineer may order all or a section of the project opened to traffic. The contractor retains legal responsibility and
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responsibility for the maintenance of such opened sections until final acceptance of the project. Conduct the remainder of the work with minimum delays to traffic.
3 The engineer may require the contractor to finish a section of work in progress before starting additional sections if the opening of such a section is essential to the safety of the public.
4 Maintain the roadway and associated appurtenances in accordance with Subsection
107.12, Responsibility for Safeguarding the Work
108.8Failure to Complete Work by the Completion Date
1 The department will assess liquidated damages for each working day that specified work remains uncompleted after the contract completion date (or amended completion date, if applicable), through and including the date on which the engineer agrees with the contractor that the work has reached substantial completion. In addition, the department will charge liquidated damages for days worked and for days the weather would allow the contractor to work during the months of December, January, February, and March.
2 The granting of permission by the department to the contractor to finish the specified work after the contract completion date (or amended contract completion date, if applicable) does not constitute a waiver by the department of its rights under the contract. The department will deduct liquidated damages from money due the contractor or will bill the contractor, as appropriate, at the rates shown in Table 108.8-1, Schedule of Liquidated Damages.
Table 108.8-1 Schedule of Liquidated Damages Original Contract Amount ($) From More Than To and Including Charge per Working Day ($) 0 50,000 250 50,000 100,000 485 100,000 500,000 555 500,000 2,000,000 775 2,000,000 5,000,000 1040 5,000,000 7,500,000 1925 7,500,000 10,000,00 2140 10,000,000 15,000,000 2355 15,000,000 20,000,000 2685 20,000,000 — 3040
3 After the engineer’s agreement with the contractor of the substantial completion of the work, the department will not continue to assess liquidated damages if the finish conference or final inspection, as specified in Subsection 1 13.4, Final Acceptance, is delayed for reasons beyond the control of or not the fault of the contractor. Nor will the department assess liquidated damages for cleanup or minor work required as a result of
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the finish conference or final inspection and providing the contractor has shown constant effort in completing the work.
108.9Termination for Default
1 Using USPS certified mail, “Return R eceipt Re quested,” t he engin eer will notify the contractor and the surety in writing of the contractor’s delay, neglect, or default if the contractor:
qualified workers and equipment to complete the project as specified;
specified, or fails to remove and replace unsuitable materials or work;
engineer;
against the contractor to stand unsatisfied for 10 or more calendar days; makes an assignment for the benefit of creditors; or
2 If within 10 calendar days after the contractor has received the department’s letter and the contractor or surety does not act in accordance with its terms, the department will terminate the contract and take the prosecution of the work from the contractor. The department may appropriate and use those project materials and equipment it deems suitable, and may enter into an agreement or use other methods as required to complete the contract acceptably. This paragraph binds the contractor’s surety company and supersedes the provisions of any surety bond or other surety agreement.
3 The department will deduct all costs incurred by the department as a result of terminating the contract, together with the cost of completing the work as specified, from monies due the contractor. If such costs exceed the remaining amount payable under the contract, the department will hold the contractor and the surety liable for payment of the excess to the department.
4 If the department’s action regarding a contract’s termination for default is determined to be wrongful, the department ’s cause for the action will convert to one of termination on the public’s behalf, in accordance with Subsection 108.10, Termination on Public’s Behalf.
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108.10Termination on Public’s Behalf
1 The department may at any time, by written notice, terminate all or part of the contract when the department determines it in the public’s interest to do so. Before such termination, the engineer may require the completion of unaffected parts in accordance with the contract.
2 When all or part of the contract is terminated, the department will pay the pay item price for the actual number of units completed or will compensate the contractor for actual costs incurred for work not started or completed. The department will purchase from the contractor acceptable materials obtained but not used, at the actual costs shown by receipted bills and cost records and delivered as designated by the engineer. Give the engineer access to all books, cost records, correspondence, and papers necessary to determine the relevant prices and amounts.
3 The department intends in this provision to provide for an equitable settlement with the contractor. The department will not pay for loss of anticipated profits under this provision. Termination does not relieve the contractor or the surety of its liability for just claims arising out of work performed. Under termination, title to all property accruing to the commission vests immediately in the state of Wyoming. Execute and deliver all necessary papers to the engineer.
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