SCOPE OF WORK

Certifying that the materials in escrow represent all documentation used to prepare the bid waives the Contractor’s rights to use bid documentation other than those in escrow, should contract disputes arise.

D.   Refusal or Failure to Provide Bid Documentation. Failure to provide bid documentation renders the bid nonresponsive.

E.   Confidentiality of Bid Documentation. Materials held in escrow remain the property of the Contractor unless the Agency receives the Contractor’s notification of intent to file a claim or litigation ensues. If either occurs, the materials become the property of the Agency until the claim is resolved or litigation is concluded. Originals and copies of escrow materials will be returned to the Contractor once litigation is concluded, outstanding claims are resolved, or final release is executed. The Agency will make every reasonable effort to ensure the confidentiality of bid documentation.

F.   Cost and Escrow Instruction. The Agency will pay to store all escrowed materials and will provide escrow instructions to the depository.

G.   Payment. Include within the overall contract bid price all costs to comply with this subsection.

104.01 Contract Intent

The intent of the contract is to state the roles and obligations of the Agency and Contractor regarding the construction, execution, and completion of the work.

104.02 Contract Revisions

A. General. The Agency reserves the right to revise the contract at any time. These revisions do not invalidate the contract or release the surety, and the Contractor agrees to complete the contract as revised. Do not proceed with the revised work without the Engineer’s written authorization. Upon receiving written approval, proceed immediately with the revised work.

The Agency will only consider requests from the Contractor for a revision to the contract amount or time if the Contractor first notifies the Engineer as specified in Subsection 104.03.

If the Engineer determines that a revision is necessary, the Agency will revise the contract time as specified in Subsection 108.06 and will pay for the revised work at the contract unit bid prices unless the Contractor’s cost of production or the character of the work is materially changed, in which case the Agency may revise the contract as specified in Subsection 109.04. The Agency will not pay for lost or anticipated profits resulting from a revision to the contract.

B.   Differing Site Conditions. If either of the following conditions is encountered during the progress of the work, immediately notify the Engineer of the conditions as specified in Subsection 104.03 before they are disturbed and before performing or continuing with the affected work.

1.    A subsurface or latent physical condition differing materially from those indicated in the contract; or

2.    An unknown physical condition of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract.

C.   Significant Changes in the Character of Work. The Engineer may alter contract quantities, the work, or both as necessary to satisfactorily complete the project. If such alternations significantly change the character of the work, the Agency will make appropriate adjustments to the contract as specified in Subsections 108.06 and 109.04.

Consider either of the following to be a “significant change”:

1.    When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or

2.    When the quantity of a major item of work is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity applies only to that portion in excess of 125 percent of original contract item quantity, or in the case of a decrease below 75 percent, to the actual amount of work performed.

Before performing significantly changed work, reach agreement with the Agency concerning the basis for the adjustment as specified in Subsections 109.04 and 108.06.

If the alterations do not significantly change the character of the work specified in the contract, the Agency will pay for the altered work at the contract unit price.

If the Contractor disagrees as to whether an alteration constitutes a significant change, use the notification procedures specified in Subsection 104.03.

D.   Suspension of Work Ordered by the Engineer. If the Engineer suspends or delays all or any portion of the work for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry), and the Contractor believes that additional compensation, contract time, or both is due because of the suspension or delay, the Contractor shall notify the Engineer as specified in Subsection 104.03.

The Engineer will evaluate the Contractor’s request. If the Engineer agrees that the cost, time, or both required for the performance of the contract has increased due to the suspension or delay and the suspension or delay was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any

The Agency will not grant or consider contract revisions based on an Engineer-ordered suspension

1.    without timely written notice as specified in Subsection 104.03;

2.    to the extent that performance would have been suspended or delayed by any other cause;

3.    for which an adjustment is provided or excluded under any other term or condition of the contract; or

4.    that includes profit.

E.   Extra Work. When necessary or desirable to complete the project, the Engineer may direct the Contractor to perform unforeseen work for which there is no pay item or unit price in the contract. The Agency will pay for such work as specified in Subsection 109.04.

F.   Eliminated Items. The Agency may partially or completely eliminate contract items. The Agency will reimburse the Contractor for costs incurred before notification of the elimination as specified in Subsection 109.05.

104.03 Contractor Notification

The Engineer will only consider requests for contract revisions when the Contractor meets the notification procedures in this subsection.

A.   Initial Oral Notification by Contractor. Provide immediate oral notification to the Engineer upon discovering a condition that may require a revision to the contract. Do not start or continue an activity or item of work for which a contract revision may be necessary without authorization from the Engineer.

B.   Written Notice by Contractor. If the Engineer has not yet resolved the issue, provide the following information, in writing, within [5] calendar days of the oral notification:

1.    A description of the situation, including the time and date the situation was first identified, and the location of the situation, if appropriate.

2.    An explanation of why the situation represents a change to the contract, with references made to the pertinent portions of the contract.

3.    A statement of the revisions considered necessary to the contract price(s), delivery schedule(s), phasing, and time. Because of its preliminary nature, the Agency recognizes that this information may rely on estimates.

4.    An estimate of the time within which the Agency must respond to the notice to minimize cost, delay, or disruption.

C.   Written Acknowledgement by Engineer. The Engineer will provide written acknowledgement of the Contractor’s written notice.

D.   Written Response by Engineer. Within [10] calendar days of receiving the Contractor’s written notice, the Engineer will provide a written response that includes one of the following:

1.    A confirmation of the change and, when necessary, direction on how the work will proceed.

2.    A denial of the request for a contract revision, which will include references to the contract as to why the issue does not represent a change.

3.    A request for additional information stating the specific information needed and the date by which it must be received. The Agency will respond to additional information within [10] calendar days of receipt.

104.04 Maintaining Traffic

Keep the road open to traffic during the work or provide adequate detour roads as specified or directed. Furnish, install, and maintain traffic control devices as specified in the approved traffic management plan, Section 618, and the MUTCD. Maintain the portion of the project open to the public in a condition that safely and adequately accommodates traffic. Construct and maintain all necessary accesses to parking lots, garages, businesses, residences, farms, and other features as may be necessary. The Agency will pay for traffic control devices under Section 618. Allowable additional compensation for maintenance includes:

A.   Special Detours. When the contract includes “Maintenance of Detours” or “Removing Existing Structures and Maintaining Traffic,” include in bid all costs to construct, maintain, and remove detours, including the costs to construct and remove temporary bridges and accessory features. The Agency will provide right-of-way for temporary highways or bridges designated in the contract.

B.   Maintaining Traffic During Work Suspension.

1.    Suspensions Ordered by the Engineer. Prepare the project for traffic flow as directed during anticipated work suspensions. The Agency will maintain temporary roads and project sections during work suspensions. Resume maintenance for the entire project once work resumes. Replace or repair all work or materials lost or damaged during the suspension. If the reason for the suspension is beyond the control and without the fault of the Contractor, the Agency will pay for the cost of additional work to resume operations at contract unit prices or as extra work.

2.    Other Work Suspensions. Maintain the roadway to accommodate traffic, at no cost to the Agency, during suspensions resulting from:

b.    failure to correct unsafe conditions for workers or the general public,

c.    failure to perform work directed by the Engineer, or

d.    other circumstances caused by the Contractor.

C. Maintenance Directed by the Engineer. Special maintenance is work that is not included in the contract but that is defined and directed by the Engineer to benefit the traveling public. The Agency will pay based on the unit price or as specified in Subsections 109.03 or 109.04.

104.05 Rights In and Use of Materials Found on the Project

Obtain approval before using excavated materials found in other parts of the project. The Agency will pay for both the excavation of these materials at the contract unit price and for the pay item for which the material is used.

Replace the removed material, when directed, with acceptable materials at no cost to the Agency. Compact replacement material to the density requirements specified for roadway embankment construction. Obtain written permission before excavating or removing material from within the right-of-way that is outside the grading limits.

Unless otherwise specified in the contract, salvageable material is the property of the Contractor.

104.06 Final Cleanup

Before final inspection and acceptance, remove all rubbish, debris, materials, temporary structures, and equipment from the highway, borrow pits, and all areas used to perform the work. The final cleanup cost is incidental to other items.

104.07 Restoring Surfaces Opened by Permit

Allow individuals, firms, or corporations with authorized permits to enter the project to construct or reconstruct utility service.

When directed by the Engineer, repair work damaged by permit holder actions to the original standard. The Agency will pay for repair work at contract unit prices or as extra work.

104.08 Railway-Highway Provisions

The Agency will coordinate with the railway for new or existing crossings necessary for designated hauling across railway tracks. To use crossings other than those designated in the contract, make arrangements with the railway at no cost to the Agency.

Perform work on the railway right-of-way without interfering with trains or railway company traffic and in compliance with requirements set by the railway for flagging, right-of-entry agreements, and protection of crossings. Coordinate all work crews and schedules for work conducted concurrently with the railway company work. Furnish insurance for work on railway right-of-way as specified in the contract and railway requirements.

Conduct work over, on, or adjacent to navigable waters without interfering with free waterway navigation. Comply with permits issued by the U.S. Coast Guard or the U.S. Army Corps of Engineers, and obtain and comply with other permits as identified in the contract.

104.10 Contractor’s Responsibility for Work

Protect project work from damage whether or not related to performing the work, except as specified in Subsection 104.04(B)(1), until written acceptance of the project as defined in Subsection 105.17.

Rebuild, repair, restore, and make good all losses, injuries, or damage, under the control of the Contractor, at no cost to the Agency. Rebuild, repair, restore, and make good all losses, injuries, or damage, not under the control of the Contractor, under agreed unit prices or as extra work under Subsection 109.04. Items not under the control of the Contractor are acts of God, or acts of the public enemy or of governmental authorities.

During work suspensions, ensure that there is no damage to the project, provide for normal drainage, and erect necessary temporary structures, signs, or other facilities. Maintain all newly established plantings, seedings, and sodding and protect new tree or other designated vegetative growth in acceptable condition. Bear responsibility for costs incurred in periods of suspension defined in Subsection 104.04(B)(2).

104.11 Environmental Protection

Comply with all Federal, State, and local laws and regulations controlling environmental pollution. Prevent pollution of streams, lakes, ponds, and reservoirs with sediment, fuels, oils, bitumens, chemicals, or other harmful materials. Prevent atmospheric pollution from particulate and gaseous matter. Ensure that any work has appropriate erosion and sediment control measures in place to prevent discharge into bodies of water.

Ford or work in streams only as allowed by permit. Ensure that any work results in minimal stream siltation.

Use a dike or barrier to prevent sediment from work areas or pits located in or adjacent to streams from entering the stream.

Treat water used to wash aggregate or from other operations that produce sediment by filtration, settling basins, or other methods that reduce sediment concentrations to the level of the stream or lake into which it is discharged.

Meet requirements for temporary and permanent erosion and sediment controls as specified in Section 207.

104.12 Contractor Proposals for Value Engineering

The Contractor and the Agency will share equally the savings resulting from a Value Engineering Change Proposal (VECP) offered by the Contractor and approved by the Agency.

Base contract bid prices on actual work rather than on VECPs that are subject to Agency approval. If a VECP is rejected, complete the contract as bid.

The Contractor shall have no claim against the Agency for compensable or noncompensable delay if the Agency fails to respond within the time indicated in Subsection 104.12(B)(5) because additional information requested from the Contractor is necessary to complete the review.

A.   The Agency will consider VECPs that may potentially result in savings without damaging essential functions and characteristics of the facility. These include, but are not limited to, service life, economy of operation, ease of maintenance, desired appearance, and safety.

B.   Submitting VECPs. Submit the following materials and information with each VECP:

1.    A statement that the submission is a VECP.

2.    A description of the existing work and the proposed changes for performing the work. Include a discussion of the comparative advantages and disadvantages of each.

3.    A complete set of plans and specifications showing proposed revisions to the original contract.

4.    A detailed cost estimate for performing the work under the existing contract and under the proposed change.

5.    A time frame within which the Agency must make a decision.

6.    A statement of the probable effect the proposal would have on the contract completion time.

7.    A description of any previous use or testing of the proposal, including the conditions and results. If the proposal was previously submitted on another Agency project, provide the dates, project numbers, and the Agency’s action on the proposal.

C.   Conditions. The Agency will only consider VECPs that meet the following conditions:

1.    VECPs, regardless of their approval by the Agency, apply only to the current contract and become the property of the Agency. Impose no use or disclosure restrictions on the VECP. The Agency may duplicate or disclose any data necessary to use the VECP. The Agency may apply a VECP for general use on other contracts without obligation to the Contractor. This provision does not deny rights provided by law with respect to patented materials or processes.

2.    The Agency may reject a proposal if it contains certain revisions that the Agency is already considering or has already approved for the contract without obligation to the Contractor.

3.    The Contractor has no claim to additional costs or delays, including development costs, loss of anticipated profits, or increased material or labor costs, if the VECP is rejected.

4.    The Agency will decide whether or not to consider a VECP. The Agency may reject a VECP that requires excessive review, evaluation, or investigation, or that is inconsistent with project design policies or criteria.

5.    The Engineer may reject unsatisfactory work resulting from an approved VECP. Remove rejected work and reconstruct under the original contract without reimbursement for the work performed under the VECP or for its removal. Reimbursement for approved modifications to the VECP to adjust to field or other conditions is limited to the total amount payable for the work under the contract bid prices. Rejection or limitation of reimbursement is not a basis for any claim against the Agency.

6.    Use only proven features that have been employed under similar conditions or projects acceptable to the Agency.

7.    The Agency will reject VECPs that provide equivalent options to those already in the contract.

8.    The Agency will only consider VECPs generating sufficient savings.

9.    The Agency will reject VECPs that change only pavement thickness or type, or both thickness and type.

10.  The Agency will disqualify VECPs if requests for additional information are not met in a timely manner. This includes field investigation results and surveys, design computations, and field change sheets for proposed design changes.

D. Payment. VECPs accepted in whole or in part will be by change order. Payment will be as follows:

1.    The contract will incorporate changes in quantities of unit bid items, new agreed price items, or both, as appropriate.

2.    The Agency will pay for the cost of the revised work directly. The Agency also will pay the Contractor 50 percent of the savings between the cost of the revised work and the original bid price.

3.    Costs to develop, design, and implement the VECP are excluded from reimbursement.

4.    Only the Contractor may submit VECPs and be reimbursed for savings. Subcontractors may submit VECPs only through the Contractor.