PROSECUTION AND PROGRESS

108.01 Subletting the Contract

Obtain the Agency’s written permission before subletting, selling, transferring, assigning, or disposing of any portion of the contract(s). Perform at least [30] percent of the total contract work unless otherwise specified less the total contract amount of those items designated as “specialty

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items,” which may be subcontracted without regard to the [30] percent limitation. Be responsible for any subcontract or contract transfer under the contract and bonds.

108.02 Progress Schedules

A.   General. Provide all resources to complete the work. Provide a schedule using the bar chart method as specified Subsection 108.02(B), except when the contract specifies a schedule using the critical path method (CPM), in which case, meet the requirements of Subsection 108.02(C). With the Engineer’s approval, the Contractor may provide a CPM schedule in place of the bar chart schedule. Plan and schedule the project to meet contract-required milestone and final completion dates.

At least [10] calendar days before the preconstruction meeting, submit to the Engineer for review an initial progress schedule that meets the requirements specified in Subsection 108.02(B) or 108.02(C), as applicable. The Engineer and Contractor will review the initial schedule at the preconstruction meeting. Within [5] work days after the preconstruction meeting, the Engineer will accept the Contractor’s initial schedule or request additional information. The type of information requested may include estimated manpower, equipment, unit quantities, and production rates used to determine the duration of an activity or item or work. Provide the requested information and resubmit the revised initial schedule within [5] work days after receiving the Engineer’s request.

The Engineer will use the schedule to monitor progress of the work. The Engineer will accept or reject the initial schedule based solely on completeness; acceptance does not modify the contract or constitute endorsement or validation by the Engineer of the Contractor’s logic, activity durations, or assumptions in creating the schedule. The Agency may withhold monthly progress payments until the Engineer accepts the initial schedule.

Submit a schedule update to the Engineer on the first working day of each month, or as requested by the Engineer. The Agency may withhold monthly progress payments if schedules are not updated as specified or requested.

B.   Bar Chart Method. Use this scheduling method when specified.

1. Initial Bar Chart Progress Schedule. At least [10] calendar days before the preconstruction meeting, submit to the Engineer for review an initial bar chart progress schedule that includes the following:

a.    Activities that describe the essential features of the work, activities that might delay contract completion, and critical activities;

b.    The planned start and completion dates for each activity, the duration of each activity (stated in work days, and with activities of more than 15 work days in duration broken into two or more activities distinguished by location or some other feature), and the sequencing of all activities;

c.    The quantity and estimated daily production rate for critical activities;

d.    An indication of how the schedule accommodates adverse weather days for each month;

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e.    Dates related to the procurement of materials, equipment, and articles of special manufacture;

f.    Dates related to the submission of working drawings, plans, and other data specified for review or approval by the Agency;

g.    Dates related to Agency inspections; and

h. Dates related to specified activities by the Agency and third parties.

2. Project Schedule Updates. Conduct job site meetings with the Engineer to verify schedule accuracy. Hold meetings monthly or as required by the complexity of the project. Update the schedule as required to reflect actual work modifications and progress and to document approved contract revisions. Include the actual start and finish of each activity, percentage complete, and the remaining duration of activities started and still ongoing.

Submit [2] copies of the schedule update to the Engineer for review within [48] hours of the job site meeting.

C. Critical Path Method (CPM). Use this scheduling method when specified. Develop a CPM schedule using computerized scheduling software that is compatible with that used by the Agency.

1.    Initial Work Plan. Prepare and complete a schedule for the first [60] calendar days of work that meets the requirements for an initial bar chart as specified in Subsection 108.02(B)(1). With prior approval, the Engineer may accept activity durations of more than 15 working days. Include a summary bar chart schedule for the balance of the project; activity durations on the summary chart may exceed 15 working days. Submit an updated version of the bar chart every [14] calendar days, until the Agency accepts the initial CPM schedule.

2.    Initial CPM Schedule. Within [30] calendar days after providing the initial bar chart, submit an initial CPM schedule to the Engineer for review. Define and sequence activities so as to accurately describe the project and to meet contract requirements with respect to the scope of work, phasing, accommodations for traffic, and interim, milestone, and project completion dates. Use working days to create the schedule, beginning with the date of the notice to proceed.

a. CPM Schedule Requirements. Ensure that the CPM schedule identifies and includes the following:

i. Planned start and completion dates for each activity;

ii. Duration of each activity (stated in work days, and with activities of more than 15 work days in duration broken into two or more activities distinguished by location or some other feature);

iii. Finish-to-start relationships among activities, without leads or lags, unless otherwise approved by the Engineer;

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iv. Interim, milestone, and project completion dates specified in the contract as the only constraints in the schedule logic;

v. The quantity and estimated daily production rate for critical activities;

vi. Activities related to the procurement of materials, equipment, and articles of special manufacture;

vii. Activities related to the submission of working drawings, plans, and other data specified for review or approval by the Engineer;

vii. Activities related to Agency inspections; and

viii. Activities related to specified activities by the Agency and third parties.

b. CPM Schedule Submission Requirements. Provide the following items with each schedule submission. Submit [1] paper copy and [1] electronic copy of the schedule to the Engineer.

i. A logic diagram in color, depicting no more than 50 activities on each 11 by 17 in. [280 by 430 mm] sheet, and with each sheet including title, match data for diagram correlation, and a key.

ii. Tabular sorts of activities by early start, predecessor and successor, work area by early start, and total float;

iii. 60-day look-ahead bar charts by early start; and a

iv. Narrative report indicating the workdays per week, holidays, number of shifts per day, number of hours per shift, and how the schedule accommodates adverse weather days for each month.

3. Schedule Updates. Update the schedule on a monthly basis to show current progress. Include the following with each update:

a.    Actual start and finish dates of each activity or remaining durations of activities started but not yet completed; and a

b.    Narrative report describing progress during the month, shifts in the critical activities from the previous update, sources of delay, potential problem areas, work planned for the next update period, and changes made to the CPM schedule. Changes include additions, deletions, or revisions to activities due to the issuance of a contract revision, changes to an activity duration, changes to relationships between activities, or changes to the planned sequence of work or the method and manner of its performance.

Submit the updated schedule electronically to the Engineer. Also provide [1] paper copy of tabular sorts by total float and activity by early start.

D. Schedule Revisions. The Engineer may request a revised schedule. Circumstances that may lead to such a request include the following:

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1.    A delay (actual or projected) to scheduled milestone or project completion dates;

2.    A difference between the actual sequence or duration of work and that depicted in the schedule; and

3.    Issuance of a contract revision that, by adding, deleting, or revising activities, changes the planned sequence of work or the method and manner of its performance.

Prepare and submit the revised schedule within [10] calendar days after the Engineer’s request. Within [10] calendar days of receipt, the Engineer will accept the revised schedule, reject the revised schedule, or request additional information. Address the reasons for rejection or submit the information requested no more than [10] calendar days after the Engineer’s request.

108.03 Limiting Operations

Minimize interference with traffic during performance of the work. Stage work as specified in the contract.

108.04 Character of Workers

Provide the resources necessary to complete all contract work as specified. Ensure workers have the experience and skills to perform assigned work.

Remove from the project any employee(s) who performs the work in an unskilled manner or who is intemperate or disorderly. Return these employees to the project only with the Engineer’s written permission.

The Engineer may suspend work for the Contractor’s failure to remove any employee(s) or to furnish suitable and sufficient personnel to perform the work.

108.05 Methods and Equipment

Use equipment of the size and mechanical condition necessary to produce the specified work. Ensure that the equipment does not damage the roadway, adjacent property, or other highways.

Request permission in writing to use methods or equipment other than those specified; describe the proposed methods and equipment to be used and the reasons for the change. Perform work according to the original basis of payment and contract time. Discontinue use of alternate methods or equipment when work does not meet contract requirements. Remove and replace or repair deficient work at no cost to the Agency.

108.06 Determining Compensation and Contract Time Extension for Excusable Delays

Request an extension in contract time for excusable delays under this Subsection. Meet Subsection 105.18 documentation requirements.

File written requests with the Engineer within [7] calendar days of receiving contract time charges on working day contracts. Document asserted discrepancies in the time assessed. Failure to file a protest is acceptance of the time assessments.

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Guide Specifications for Highway Construction
A.   Noncompensable Delay. Unforeseen and unanticipated delay caused by acts of God, acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, or delays not resulting from the Contractor’s or Agency’s fault or negligence. The Agency will not grant additional compensation.

B.   Compensable Delay. Delay caused by Agency action or inaction or under the Agency’s control, including delays resulting from change orders, differing site conditions, work suspensions caused by conditions beyond the control of the Contractor, defective specifications, lack of site access, and delayed shop drawing approval. For such compensable delays, the Agency may grant additional time and compensation as specified in Subsection 109.10.

Provide a written request to the Engineer within [5] calendar days of the occurrence of a delay detailing the reasons for a time extension and additional compensation, if appropriate.

Maintain daily records of all nonsalaried labor, material costs, station locations, and equipment expenses for all operations affected.

Prepare and submit to the Engineer weekly written reports that contain

1.    Number of days of delay;

2.    Summary of all delayed operations or those that will be delayed;

3.    Explanation of how the Agency’s action or omission delayed each operation, if appropriate, and an estimation of the time necessary to complete the project; and

4.    Itemization of all extra costs incurred:

a.    Document how the extra costs relate to the delay and how they are calculated and measured.

b.    Identify all affected nonsalaried project employees for whom costs are being compiled.

c.    Summarize equipment time charges; identify equipment by manufacturer’s number.

Meet with the Agency the first working day of each week to compare the previous week’s daily records with those maintained by the Agency.

File written notice within [10] calendar days documenting disagreement between Agency and Contractor calculation of weekly delay costs. Failure to file written notification is interpreted as evidence that Agency records are accurate.

No costs allegedly incurred before notification of delay are allowed.

C.   Procedures Following Completion of Work Allegedly Delayed. Submit a written report to the Engineer within [15] calendar days of completing the project or phase of work allegedly delayed. Include the following information in the report:

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1.    Description of the operations delayed with supporting documentation and explanation of the reason for the delay.

2.    As-built chart or other graphic depicting how the operations were delayed.

3.    Item-by-item measurement and explanation of extra costs requested for reimbursement because of the delay, if applicable.

Provide an accountant’s certification of all costs included in the report.

The Agency will respond in writing within [60] calendar days of receipt of the Contractor’s submission.

For compensable delays, the Agency will grant compensation as specified in Subsection 109.10.

108.07 Incentive/Disincentive for Early Completion

Meet contract incentive/disincentive provisions.

For each calendar day the project or phase is open to unrestricted continuous traffic before or after the specified completion time established in the contract, the Agency will increase or decrease payment by the amount specified.

“Unrestricted continuous traffic” means that the affected lanes are open to unrestricted traffic flow with the specified striping and safety features in place.

The Engineer will determine when the work stage or project is complete to open the roadway to unrestricted continuous traffic.

The Agency will pay for incentives or deduct disincentives, as appropriate, in the current progress payment schedule. The Agency may assess liquidated damages, as specified in Subsection 108.08, concurrently with disincentives if they are not based on duplicate costs.

Submit a certified check to the Agency for the difference between disincentive assessments and contract retainage when disincentives exceed retainage. Submit check within [30] calendar days of payment notice.

Request time extensions only for documented industry-wide labor disputes or material delivery delays.

108.08 Failure to Complete on Time

Specified liquidated damages will be deducted from progress payments or retainage for each working day or calendar day the contract remains incomplete after the contract completion date, including approved time extensions.

Work continued after the specified contract completion time or approved time extensions does not waive the Agency’s contract rights.

The Agency may suspend time charges on calendar day and working day contracts once the work is substantially complete. Complete all remaining work with diligence.

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108.09 Contract Default

The Agency may declare the Contractor to be in default if the Contractor

A.   fails to begin work in the time specified;

B.   fails to perform the work with sufficient resources to ensure the timely completion of the work;

C.   fails to meet contract work requirements or neglects or refuses to remove and replace rejected materials or unacceptable work;

D.   stops work;

E.   fails to resume stopped work after receiving notice to proceed;

F.   becomes insolvent or bankrupt, or commits related acts; is nonresponsive to final third party judgments; or makes an assignment for the benefit of creditors;

G.   fails to comply with minimum wage payments or EEO contract requirements; or

H. is party to fraud.

The Engineer will notify the Contractor and the surety in writing for conditions determined to be in default.

Failure to correct the delay, neglect, or default within [10] calendar days after the Engineer’s written notice authorizes the Agency to prosecute the work. The Agency may appropriate or use all materials and equipment at the project site and enter into an agreement for completing the contract. The Agency may purchase from the Contractor, at actual cost, acceptable materials acquired for use on the project and not yet included in the work.

The Agency will determine the method to complete the contract.

All costs and charges incurred by the Agency, including the cost of completing the work under the contract, will be deducted from monies owed or that may be owed the Contractor. Should the expense exceed the sum that would have been payable under the contract, the Contractor and surety are liable for the difference.

Subsection 108.10 will be applied if prosecution of work is incorrectly stopped for default. Damages to which a Contractor may be entitled following improper default termination are limited to the amounts specified in Subsection 108.10.

108.10108.10 Termination for Public Convenience

A. General. The Agency may terminate the contract in whole or in part for

1.    Executive Orders of the President or State Governor, or

2.    Court restraining orders based on acts or omissions of persons or agencies other than the Contractor.

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3. Conditions are determined to be in the best interest of the Agency.

Specifics on the termination and the effective date will be detailed in a Notice of Termination.

B.   Submittals and Procedures. Upon receipt of a Notice of Termination, immediately

1.    Stop work as specified.

2.    Place no further subcontracts or order materials, services, or facilities, except as approved to complete any remaining portion of the contract.

3.    Terminate all subcontracts to the extent they relate to terminated work.

4.    Settle all outstanding liabilities and termination settlement proposals.

5.    Transfer title and deliver to the Agency

a.    Unfabricated or partially fabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

b.    Completed or partially completed plans, drawings, information, and other property required to be furnished to the Agency if the contract had been completed.

6.    Complete work not terminated.

7.    Coordinate a time and date with the Engineer to inventory materials obtained but not yet used for the project.

8.    Take all necessary or directed action to protect contract-related property that is in the possession of the Contractor and in which the Agency has or may have an interest.

C.   Settlement Provisions. Accept final payment for:

1.    Completed work items at the contract bid price.

2.    Eliminated work as specified in Subsection 109.05.

3.    Partially completed work at agreed prices or as follows: Submit a claim for additional damages or costs not covered above or elsewhere in the contract within [60] days of the termination date. Furnish cost documentation. Exclude anticipated profits on work not completed. Ensure the claim is less than the total contract price, reduced by the amount of previous payments, and the contract price of nonterminated work. Following Agency agreement with claimed costs, the Agency will amend the contract and make payment.

D.   Disputed Settlement. If the Agency does not agree with the costs claimed by the Contractor, the Agency will make payment as follows, but without duplicating any amounts agreed upon under Subsection 108.10(C):

1. For contract work performed before the termination date, the total of

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a.    The cost of work completed.

b.    The cost of settling and paying termination settlement proposals under terminated subcontracts properly chargeable to the termination portion of the contract if not included in Subsection 108.10(D)(1)(a).

c.    Profit on Subsection 108.10(D)(1)(a), determined by the Agency to be reasonable. The Agency will exclude profit under this subdivision if the Contractor’s costs for work performed exceed the bid item payments made.

2.    Reasonable settlement costs of terminated work, including

a.    Accounting, legal, clerical, and other expenses reasonably necessary to prepare termination settlement proposals and support data;

b.    Subcontract termination and settlement (excluding the amounts of settlement); and

c.    Storage, transportation, and other costs incurred that are reasonably necessary to preserve, protect, or dispose of the termination inventory.

3.    Except for normal spoilage and to the extent that the Agency accepts the risk of loss, the Agency will exclude the fair value of destroyed, stolen, or damaged material.

4.    The following will be deducted to arrive at the amount owed the Contractor:

a.    all unliquidated advance or other payments under the terminated portion of the contract;

b.    any Agency claim against the Contractor under the contract; and

c.    the agreed upon price, or the proceeds from the sale of, materials, supplies, or other items acquired and sold by the Contractor but not covered by or credited to the Agency.

E. Partial Termination. File a proposal with the Agency for an adjustment of the price(s) of the continued portion of the contract within [90] days of the effective termination date. Provide supporting information. The Agency will make any agreed upon adjustment.

The Agency may establish terms and conditions for making partial payments against costs incurred by the Contractor for the terminated portion of the contract.

Provide access to all project cost records for Agency audit. Request approval to maintain photographs, microphotographs, or other accurate reproductions rather than original records and documents.

Termination does not relieve the Contractor of responsibility for work completed.

 

 

 

 

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