15-TR2101_25517_Standard Special Provisions (SSP)_FINAL (2024.10.14).pdf

City of Lafayette 120th Over Coal Creek 3/17/2025

-3-

COLORADO DEPARTMENT OF TRANSPORTATION

SPECIAL PROVISIONS

STANDARD SPECIAL PROVISIONS

Name Date No. of

Pages

Revision of Section 101 – Definitions and Section 106 - Control of Materials (Jan 8, 2024) 2

Revision of Sections 101 and 106 – Buy America and Build America, Buy America Requirements for Projects Containing $500,000 or more in Federal-Aid Highway Funding

(Jan 8, 2024) 9

Revision of Section 105 – Asphalt Mat Density (Dec 26, 2024) 1

Revision of Section 105 – Control of Work (Oct 1, 2023) 1

Revision of Section 105 – Dispute Review Board and Claims for Unresolved

Disputes

(Oct 1, 2023) 9

Revision of Section 105 – E-Signature (Jan 8, 2024) 1

Revision of Section 106 – Conformity to the Contract of Hot Mix Asphalt

(Less than 5000 Tons)

(Oct 1, 2023) 3

Revision of Section 106 – Control of Material (Sept 30, 2024) 1

Revision of Section 107 – Water Quality Control (Under One Acre of (Oct 1, 2023) 9

Disturbance)

Revision of Section 208 – Erosion Control (Under one acre of disturbance) (Oct 1, 2023) 38

Revision of Section 401 – Plant Mix Pavements – General (Subsection 401.17)

(Jan 8, 2024) 4

Revision of Section 401 – Plant Mix Pavements – General (Subsection 401.10)

(Sept 30, 2024) 1

Revision of Section 601 – Concrete Acceptance (Apr 9, 2024) 4

Revision of Section 630 – MHT Signature Requirements (Dec 26, 2024) 1

Affirmative Action Requirements Equal Employment Opportunity (Oct 1, 2023) 13

Certified Payroll Requirements for Construction Contracts (Oct 1, 2023) 1

Disadvantaged Business Enterprise (DBE) Requirements (Oct 1, 2023) 15

Minimum Wages, Colorado, U. S. Department of Labor General Decision (Jan 3, 2025) 4

Number CO20250007, Highway Construction for Boulder County

On the Job Training (Oct 1, 2023) 6

Required Contract Provisions – Federal-Aid Construction Contracts (Oct 23, 2023) 15

Special Construction Requirements, Fire Protection Plan (Oct 1, 2023) 2

January 8, 2024

Revision Of Sections 101 - Definitions

106 - Control of Materials

Revise Section 101 of the Standard Specifications as follows:

Delete and replace the following definitions in subsection 101.02:

Subcontractor. An individual, firm, corporation, or other legal entity at any tier to whom the Contractor sublets part of the Contract. A subcontractor shall include an individual, firm, corporation, or other legal entity who meets one or both of the following criteria:

(a) Establishes a fabricating process or facility exclusively for the use of the Project, whether on or off the site of work per 29 CFR 5.2 Site of Work (1)(i)(ii)(iii).

(b) Performs work that is incorporated within the Project limits.

Supplier: An individual, firm, or corporation who meets all of the following criteria:

(a) Sells manufactured materials as a broker, distributor, dealer, manufacturer, or wholesaler who may or may not deliver the materials to the site of work.

(b) The manufacturing of the materials, articles, supplies, or equipment used for the contract that is being supplied shall come from a facility or facilities that:

(1) Is not located on, nor does itself constitute, the project or contract's primary construction site or secondary construction site as defined in 29 CFR 5.2; and

(2) Either was established before opening of bids on the contract, or is not dedicated exclusively, or nearly so, to the performance of the contract.

(c) The supplier’s only obligations for activity on the contract is the delivery of materials, articles, supplies, or equipment, which may include pickup of the same in addition to, but not exclusive of, delivery, and which may also include activities incidental to such delivery and pickup, such as loading, unloading, or waiting for materials to be loaded or unloaded; and

(d) If an entity, in addition to being engaged in the activities specified in paragraph

(c) of this definition, also engages in other construction, prosecution, completion, or repair on the site of the work, then this entity is not a supplier but a contractor.

Revise Section 106 of the Standard Specifications as follows:

Delete and replace subsection 106.01 with the following:

106.01 Source of Supply and Quality Requirements. All materials used shall meet all quality requirements of the Contract. The Contractor shall comply with the requirements of the special notice to contractors contained in the Department’s Field Materials Manual, including notifying the Engineer of the proposed sources of materials at least two weeks before delivery.

When alternative materials are permitted for an item in the Contract, the Contractor shall state at the Pre-construction Conference the material that will be furnished for that item.

Reference in the Contract to a particular product or to the product of a specific manufacturer, followed by the phrase “or approved equal”, is intended only to establish a standard of quality, durability, and design, and shall not be construed as limiting competition. Products of other manufacturers will be acceptable provided such products are equal to that specified.

All rental equipment companies and all entities who meet the Supplier definition, as outlined in 101.02, in which the written agreement exceeds $10,000, shall have the following requirements for the Contract:

(a) Rental equipment companies and Suppliers shall create an account in the B2GNow software system.

(b) The Contractor shall submit a completed Form 1425 in the B2GNow software system at such time that the $10,000 amount is known to be exceeded and/or before the following occurs on the Contract:

• the Supplier’s upper tier begins work, or

• rental equipment is being used, or

• incorporating materials into the Contract

Failure to comply with the requirements of this subsection shall be grounds for withholding of progress payments.

Revision of Sections 101 and 106 Buy America and Build America, Buy America Requirements for Projects

Containing $500,000 or More in Federal-Aid Highway Funding

Sections 101 and 106 of the Standard Specifications shall be revised as follows:

Add the following to Subsection 101.02:

Build America, Buy America (BABA) Requirements: Division G, title IX, subtitle A, parts I-II, sections 70901 through 70927 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58) and 2 CFR Parts 184 and 200. The “domestic content procurement preference” set forth in section 70914 of the Build America, Buy America Act, requires that all construction materials and manufactured products incorporated into the project are produced in the United States.

Buy America (BA) Requirements: FHWA Buy America statutory provisions are in 23 U.S.C.313 and the regulatory provisions are in 23 CFR 635.410, which requires that all of the steel and iron incorporated into the project is produced in the United States.

For other policy and guidance links, see the FHWA Construction Program Guide.

Buy America Preferences for Infrastructure Projects: Requirements for federal-aid funded highway projects as outlined and encompassed in 2 CFR Part 184.

Component: An article, material, or supply, whether manufactured or unmanufactured, incorporated directly into: (i) a manufactured product; or, where applicable, (ii) an iron or steel product.

Construction Material: Includes an article, material, or supply that consist of only one of the following items listed means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2). To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

(1) The listed items are:

i. Non-ferrous metals;

ii. Plastic and polymer-based products (including polyvinylchloride [PVC], composite building materials, and polymers used in fiber optic cables);

iii. Glass (including optic glass);

iv. Fiber optic cable (including drop cable);

v. Optical fiber;

vi. Lumber;

vii. Engineered wood; and

viii. Drywall.

(2) Minor additions of articles, materials, supplies, or binding agents to a construction material do not change the categorization of the construction material.

Cost of Components for Manufactured Products: In determining whether the cost of components for manufactured products is greater than 55 percent of the total cost of all components, use the following instructions:

(i) or components purchased by the manufacturer, the acquisition cost, including transportation costs to the place of incorporation into the manufactured product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(ii) or components manufactured by the manufacturer, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (i) of this section, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the manufactured product.

Infrastructure Project: Includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. Infrastructure includes facilities that generate, transport, and distribute energy.

Iron or Steel Product: Articles, materials, or supplies that consists wholly or predominantly of iron or steel or a combination of both. Typical iron and steel products subject to Buy America preferences include, but is not limited to, structural and reinforcing steel incorporated into pavements, bridges, and buildings (such as maintenance facilities); steel rail; and other equipment.

Manufactured Product:

(1) Articles, materials, or supplies that have been:

i. Processed into a specific form and shape; or

ii. Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.

(2) If an item is classified as an iron or steel product, a construction material, or a section 70917(c) material under the definitions set forth in this section, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product under paragraph (1) of this definition may include components that are construction materials, iron or steel products, or section 70917(c) materials.

Manufacturer: The entity that performs the final manufacturing process that produces a manufactured product.

Predominantly of iron or steel or a combination of both: Means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components.

Produced in the United States:

(1) Steel or Iron Products: All manufacturing processes, from the initial melting/smelting stage through the application of coatings, occurred in the United States.

(2) Manufactured Products:

i. The product was manufactured in the United States; and

ii. The cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard that meets or exceeds this standard has been established under applicable law or regulation for determining the minimum amount of domestic content of the manufactured product.

(3) Construction materials: All manufacturing processes for the construction material occurred in the United States per 106.11(f) of this specification.

Section 70917(c) Materials: Cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives. See section 70917(c) of the Build America, Buy America Act.

Delete Section 106.11 of the Standard Specifications and replace with the following:

106.11 Buy America (BA) and Build America, Buy America (BABA) Requirements

(a) Contractual Documents. This specification shall be used in conjunction with the applicable version of the Special Notice to Contractors Section of the CDOT Field Materials Manual (FMM), and the requirements therein, in effect at the time of bidding. The Special Notice to Contractors Section of the FMM, and the requirements therein, shall be considered a contractual document when this specification is included.

(b) Categorization of articles, materials, and supplies.

(1) An article, material, or supply should only be classified into one of the following categories:

i. Iron or steel products;

ii. Manufactured products;

iii. Construction materials; or

iv. Section 70917(c) materials.

(2) An article, material, or supply should not be considered to fall into multiple categories. In some cases, an article, material, or supply may not fall under any of the categories listed in paragraph (b)(1) of this section. The classification of an article, material, or supply as falling into one of the categories listed in paragraph (b)(1) must be made based on its status at the time it is brought to the work site for incorporation into an infrastructure project. In general, the work site is the location of the infrastructure project at which the iron, steel, manufactured products, and construction materials will be incorporated.

(3) An article, material, or supply incorporated into an infrastructure project must meet the Buy America Preference for only the single category in which it is classified.

(c) Steel or Iron Products. All manufacturing processes, including the application of a coating, for all steel or iron products permanently incorporated in the work shall have occurred in the United States of America. All manufacturing processes include the processes that change the raw ore or scrap metal into a finished steel or iron product.

The Contractor shall obtain and maintain on file Buy America certifications that every process from either the original smelting or melting operation, including the application of a coating, performed on steel or iron products either has or has not been carried out in the United States of America. These Buy America certifications apply to every steel and iron product that requires pre-inspection, pretesting, certified test results, or a certificate of compliance. Shipping invoices, bar lists, and mill test reports shall accompany the Buy America certifications. These Buy America certifications shall be obtained from each supplier, distributor, fabricator, and manufacturer that has handled each steel or iron product. These Buy America certifications shall create a chain of custody trail for every supplier, distributor, fabricator, and manufacturer that handled the steel or iron product and shall include certified mill test reports with heat numbers from either the original smelting or melting operation. Prior to the permanent incorporation or payment for the steel or iron products, the Contractor shall also provide a copy of these certifications to the Project Engineer. The Contractor shall allow the State, FHWA, and their representatives access to the Buy America certifications including supporting documentation upon request. The lack of these certifications will be justification for rejection of the steel or iron product.

Before the permanent incorporation into the project and before payment for steel or iron products, the Contractor shall also provide the following for every iron or steel product that is delivered:

(i) Contractor Compliance Certification. The compliance certification document shall certify in writing that the Contractor has received and reviewed the Buy America certifications and supplied them to the Project Engineer; the certification(s) and supporting documentation is on file and complies with the Buy America requirements; and when requested, the Contractor has submitted the required documentation to FHWA or other CDOT representatives.

(ii) Monthly Summary of Buy America Certifications. The Contractor shall also maintain a document that summarizes the date and quantity of all steel and iron material delivered to the project. This summary document shall include the pay item, quantity of material delivered to the project, delivered cost of the pay item, and the quantity of material installed by the monthly progress payment cutoff date. The summary document shall reconcile the pay item for the material delivered to the project to the Buy America certifications. The summary document shall also include the delivered cost of all foreign steel or iron delivered and permanently incorporated into the project, if applicable. The Contractor shall also submit a summary document for each month that no steel or iron products are incorporated into or delivered to the project. The Contractor shall submit the summary document to the Engineer by the monthly progress payment cutoff date.

The Contractor shall obtain and maintain on file Buy America certifications that every process from either the original smelting or melting operation, including the application of a coating, performed on steel or iron products either has or has not been carried out in the United States of America. These Buy America certifications apply to every steel and iron product that requires pre-inspection, pretesting, certified test results, or a certificate of compliance. Shipping invoices, bar lists, and mill test reports shall accompany the Buy America certifications. These Buy America certifications shall be obtained from each supplier, distributor, fabricator, and manufacturer that has handled each steel or iron product. These Buy America certifications shall create a chain of custody trail for every supplier, distributor, fabricator, and manufacturer that handled the steel or iron product and shall include certified mill test reports with heat numbers from either the original smelting or melting operation. Prior to the permanent incorporation or payment for the steel or iron products, the Contractor shall also provide a copy of these certifications to the Project Engineer. The Contractor shall allow the State, FHWA, and their representatives access to the Buy America certifications including supporting documentation upon request. The lack of these certifications will be justification for rejection of the steel or iron product.

This requirement will not prevent a minimal use of foreign steel or iron, provided the total cost, including delivery to the project, of all such steel and iron products does not exceed 1/10 of one percent (i.e., 0.1%) of the total contract cost or $2,500, whichever is greater. When there is foreign steel or iron permanently incorporated into the project, the Contractor shall provide documentation of the project delivered cost of that foreign steel or iron to the Project Engineer.

(d) Manufactured Products. The FHWA's 1983 Buy America Final Rule, (see https://www.fhwa.dot.gov/construction/contracts/831125.cfm) waive the application of Build America, Buy America requirements for manufactured products that do not include steel and iron components. However, Buy America requirements apply to steel or iron components of manufactured products (i.e.

steel wire mesh or steel reinforcing components of precast reinforced concrete products).

(e) Glass Beads for Pavement Marking. All post-consumer and industrial glass beads for pavement marking shall have been manufactured from North American glass waste streams in the United States of America. The bead manufacturer shall submit a COC in accordance with subsection 106.12 confirming that North American glass waste streams were used in the manufacture of the glass beads.

(f) Construction Materials. Build America, Buy America (BABA) requirements apply to the following construction materials incorporated into infrastructure projects.

Each listed construction material is followed by material-specific manufacturing process criteria that is necessary to be considered “produced in the United States.”

1. Non-ferrous metals. All manufacturing processes, from initial smelting or melting through final shaping, coating, and assembly, occurred in the United States;

2. Plastic and polymer-based products (including polyvinylchloride [PVC], composite building materials, and polymers used in fiber optic cables).

All manufacturing processes, from initial combination of constituent plastic or polymer-based inputs, or, where applicable, constituent composite materials, until the item is in its final form, occurred in the United States;

3. Glass (including optic glass). All manufacturing processes, from initial batching and melting of raw materials through annealing, cooling, and cutting, occurred in the United States. See section 106.11(d) of the CDOT Specifications for additional requirements related to glass beads for pavement marking;

4. Fiber optic cable (including drop cable). All manufacturing processes, from the initial ribboning (if applicable), through buffering, fiber stranding and jacketing, occurred in the United States. All manufacturing processes also include the standards for glass and optical fiber, but not for non-ferrous metals, plastic and polymer-based products, or any others;

5. Optical fiber. All manufacturing processes, from the initial preform fabrication stage through the completion of the draw, occurred in the United States;

6. Lumber. All manufacturing processes, from initial debarking through treatment and planing, occurred in the United States;

7. Engineered wood. All manufacturing processes from the initial combination of constituent materials until the wood product is in its final form, occurred in the United States; and

8. Drywall. All manufacturing processes, from initial blending of mined or synthetic gypsum plaster and additives through cutting and drying of sandwiched panels, occurred in the United States.

Except as specifically provided, only a single standard under paragraph (f) of this section should be applied to a single construction material.

Before the permanent incorporation into the project and before payment for all eligible construction materials, the Contractor shall obtain a certification from each supplier, distributor, fabricator, and manufacturer that has handled the construction material and submit it to the Project Engineer. This certification shall identify that every material-specific manufacturing process as listed above either has or has not been carried out in the United States of America and shall attest specifically to Build America, Buy America compliance.

In the case that eligible construction materials are permanently incorporated into the project, the Contractor shall maintain and submit on a monthly basis, CDOT Form #1600, Contractor’s Certificate of Compliance summarizing the Item Description, CDOT Bid Item Number, Manufacturer Name, Date, and Quantity Received, Date and Quantity Installed, Bid Item Unit, and bid item cost of all eligible construction materials. The completed Form #1600(s) shall be kept in the project files and shall be submitted as part of the material final documentation package.

In the case that no eligible construction materials are permanently incorporated into the project, the Contractor shall maintain and submit on a monthly basis, CDOT Form #1610, Non-Applicable Projects: Build America, Buy America (BABA), certifying that no construction materials subject to Build America, Buy America requirements as defined in this section will be permanently incorporated into the project. The completed Form #1610(s) shall be kept in the project files and shall be submitted as part of the material final documentation package.

Form #1600 or Form #1610 does not relieve the Contractor of providing the necessary Build America, Buy America supplier certifications prior to permanent incorporation into the project or before payment for the material. The Contractor shall allow the State, FHWA, and their representatives access to the Buy America and Build America, Buy America certifications and supporting documentation upon request. The lack of these certifications will be justification for rejection of the construction material.

(i) This requirement will not prevent a minimal use of foreign construction materials, provided the total cost of non-compliant materials, including delivery to the project, of all such construction materials does not exceed $1,000,000 or five percent of the total applicable project costs, whichever is lesser. Total applicable project costs are defined as the cost of materials (including the cost of any manufactured products) used in the project that are subject to Buy America and/or Build America, Buy America requirements. When there are foreign construction materials permanently incorporated into the project, the Contractor shall provide documentation of the project bid item cost of the non-compliant materials to the Project Engineer before permanent incorporation or payment. Form #1600 shall be used to track the total applicable project cost of all materials subject to Buy America and/or Build America, Buy America requirements. The foreign construction material minimal use threshold percentage of five percent shall not be exceeded in any given month.

(g) Section 70917(c) materials including cement and cementitious materials;

aggregates such as stone, sand, or gravel; and aggregate binding agents or additives are not subject to Build America, Buy America requirements.

(h) Project Level Waivers. The Federal Highway Administration is responsible for processing and approving all waivers, including waivers requested by recipients and on behalf of subrecipients. More information on Buy America waivers can be found in the Field Materials Manual Special Notice to Contractors.

If a Contractor desires to pursue a waiver they shall notify the CDOT Project Engineer in writing who will then submit it to the CDOT Materials & Geotechnical Services Unit, Pavement Design and Documentation Services Program. The Pavement Design and Documentation Services Program will review it and forward it to the FHWA Division Office for consideration.

A Contractor’s decision to pursue any waivers on the project shall not waive or otherwise nullify any provisions of the Contract. In addition, the time to obtain a waiver shall be considered a non-excusable, non-compensable delay and Liquidated Damages (per Subsection 108.09) will be enforced should the Contract Time (original or as amended) expire due to the approval or non-approval of a waiver.

The Contractor will not be entitled to an extension of contract time due to the approval or non-approval of a waiver and no such claim will be considered.

December 26, 2024

Revision of Section 105 Asphalt Mat Density

Section 105 of the Standard Specifications shall be revised as follows:

Delete the fifth paragraph of Subsection 105.05 of the Standard Specifications and replace with the following:

A process will consist of either a single test value or a series of values resulting from related tests of an element of the Contractor’s work and materials. An element is a material or workmanship property that can be tested and evaluated for quality level by the Department approved sampling, testing, and analytical procedures. All materials produced will be assigned to a process. A change in process is defined as a change that affects the element involved. For any element, with the exception of the mat density and joint density elements, a process normally will include all produced materials associated with that element before a change in the job mix formula (Form 43). For mat density, a new process will be established for each new layer of pavement or when the job mix formula changes. For joint density, a new process will be established for each new layer of pavement or for changes in joint construction. Density measurements taken within each compaction test section will be a separate process. The Engineer may separate a process in order to accommodate small quantities or unusual variations.

October 1, 2023

Revision of Section 105 Control Of Work

Revise Section 105 of the Standard Specifications as follows:

Revise Paragraphs 4, 5 and 6 of Subsection 105.20 as follows:

If damage occurs to an existing structure through improper maintenance per 105.19, the Contractor shall submit a repair procedure to the Engineer to repair the defect(s).

The repair categories and requirements are defined as follows:

a) “In-kind” repairs. In-kind repairs are repairs where the As-Built or Advertised plans are utilized to replace or repair damaged components with identical dimensions and materials used plans and where no plan modifications are made.

In-kind repair procedures shall be reviewed and accepted by the Engineer before any repair. The use of approved repair grouts or doweled reinforcing with epoxy adhesive is permitted in in-kind repairs. Doweled reinforcing shall meet or exceed the strength requirements of the original design.

b) “Modified repairs”. Modified repairs are those which deviate in dimensions and/or materials from the As-Built or Advertised plans or where plans are not available.

Modified repair procedure submittals shall include calculations, independent design calculations, shop drawings, and/or working drawings per 105.02, and any other applicable section of the specifications for the needed repair. The

Contractor’s Engineer shall electronically seal Modified repair submittals.

Damage to new structures or modified structures, shall be repaired per the contract documents.

The Engineer of Record shall be notified and review all corresponding submittals before any repairs.

Revision of Sections Of 105 Dispute Review Board and

Claims for Unresolved Disputes

Delete and replace Section 105.23 (i) with the following:

(i) Dispute Review Board Recommendation. The DRB shall issue a Recommendation per the following procedures:

1. The DRB shall not make a recommendation on the dispute at the meeting. Before the closure of the hearing, the DRB members and the Contractor and CDOT together will discuss the time needed for analysis and review of the dispute and the issuance of the DRB’s recommendation.

The maximum time shall be 30 days unless otherwise agreed to by both parties.

2. After the meeting has been closed, the DRB shall prepare a written Recommendation signed by each member of the DRB. In the case of a three member DRB where one member dissents, that member shall prepare a written dissent and sign it. The DRB’s recommendation shall include the following:

(a) A summary of the issues and factual evidence presented by the Contractor and CDOT concerning the dispute.

(b) Recommendations concerning the validity of the dispute.

(c) Recommendations concerning the value of the dispute as to cost impacts if the dispute is determined to be valid.

(d) The contractual and factual bases supporting the recommendation(s) made including an explanation as to why each and every position was accepted or rejected.

(e) Detailed and supportable calculations which support any recommendation(s).

3. The chairperson shall transmit the signed Recommendation and any supporting documents to both parties.

105.24 Claims for Unresolved Disputes delete and replace with the following:

105.24 Claims for Unresolved Disputes. The Contractor may file a claim only if the disputes resolution process described in subsections 105.22 and 105.23 has been exhausted without resolution of the dispute. Other methods of nonbinding dispute resolution, exclusive of litigation, can be used if agreed to by both parties.

This subsection applies to any unresolved dispute or set of disputes between CDOT and the Contractor with an aggregate value of more than $15,000. Unresolved disputes with an aggregate value of more than $15,000 from subcontractors, materials suppliers or any other entity not a party to the Contract shall be submitted through the Contractor per this subsection as a pass-through claim. Review of a pass-through claim does not create privity of Contract between CDOT and any other entity.

Subsections 105.22, 105.23 and 105.24 provide both contractual alternative dispute resolution processes and constitute remedy- granting provisions pursuant to Colorado Revised Statutes (CRS) which must be exhausted in their entirety.

Litigation proceedings must commence within 180-calendar days of the Chief Engineer's decision, absent written agreement otherwise by both parties.

The venue for all unresolved disputes with an aggregate value $15,000 or less shall be the County Court for the City and County of Denver.

Non-binding Forms of alternative dispute resolution such as Mediation are available upon mutual agreement of the parties for all claims submitted per this subsection.

The cost of the non-binding ADR process shall be shared equally by both parties with each party bearing its own preparation costs. The type of nonbinding ADR process shall be agreed upon by the parties and shall be conducted within the State of Colorado at a mutually acceptable location. Participation in a nonbinding ADR process does not in any way waive the requirement that litigation proceedings must commence within 180-calendar days of the Chief Engineer's decision, absent written agreement otherwise by both parties.

(a) Notice of Intent to File a Claim. Within 30 days after rejection of the Dispute Resolution

Board’s Recommendation issued per subsection 105.23, the Contractor shall provide the Region Transportation Director (RTD) with a written notice of intent to file a claim. The Contractor shall also send a copy of this notice to the Resident Engineer. For the purpose of this subsection, Region Transportation Director shall mean the Region Transportation Director or the Region Transportation Director’s designated representative. CDOT will acknowledge in writing receipt of Notice of Intent within seven days.

(b) Claim Package Submission. Within 60 days after submitting the notice of intent to file a claim, the Contractor shall submit to the RTD five copies of a complete claim package representing the final position the Contractor wishes to have considered. All claims shall be in writing and in sufficient detail to enable the RTD to ascertain the basis and amount of claim. The claim package shall include all documents supporting the claim, regardless of whether such documents were provided previously to CDOT.

If requested by the Contractor, the 60-day period may be extended by the RTD in writing before final acceptance. At a minimum, the following information shall accompany each claim:

1. A claim certification containing the following language, as appropriate:

A. For a direct claim by the Contractor:

B. For a pass-through claim:

PASS-THROUGH CLAIM CERTIFICATION

Under penalty of law for perjury or falsification, the undersigned, (name) , (title) , , of (company) , hereby certifies that the claim of $ for extra compensation and Days additional time, made for work on this Project is true to the best of my knowledge and belief and supported under the Contract between the parties.

This claim package contains all available documents that support the claims made and I understand that no additional information, other than for clarification and data supporting previously submitted documentation, may be presented by me.

Dated /s/

Subscribed and sworn before me this day of

NOTARY PUBLIC

My Commission Expires:

Dated /s

The Contractor certifies that the claim being passed through to CDOT is passed through in good faith and is accurate and complete to the best of my knowledge and belief.

Dated /s/

Subscribed and sworn before me this day of_

NOTARY PUBLIC

My Commission Expires:

2. A detailed factual statement of the claim for additional compensation, time, or both, providing all necessary dates, locations, and items of work affected by the claim. The Contractor’s detailed factual statement shall expressly describe the basis of the claim

CONTRACTOR’S CLAIM CERTIFICATION

Under penalty of law for perjury or falsification, the undersigned, (name) , (title) , of (company) , hereby certifies that the claim of $ for extra compensation and Days additional time, made for work on this Contract is true to the best of my knowledge and belief and supported under the Contract between the parties.

This claim package contains all available documents that support the claims made and I understand that no additional information, other than for clarification and data supporting previously submitted documentation, may be presented by me.

Dated /s/

Subscribed and sworn before me this day of

NOTARY PUBLIC

My Commission Expires:

and factual evidence supporting the claim. This requirement is not satisfied by simply incorporating into the claim package other documents that describe the basis of the claim and supporting factual evidence.

3. The date on which facts were discovered which gave rise to the claim.

4. The name, title, and activity of all known CDOT, Consultant, and other individuals who may be knowledgeable about facts giving rise to such claim.

5. The name, title, and activity of all known Contractor, subcontractor, supplier and other individuals who may be knowledgeable about facts giving rise to such claim.

6. The specific provisions of the Contract, which support the claim and a statement of the reasons why such provisions support the claim.

7. If the claim relates to a decision of the Project Engineer, which the Contract leaves to the Project Engineer’s discretion, the Contractor shall set out in detail all facts supporting its position relating to the decision of the Project Engineer.

8. The identification of any documents and the substance of all oral communications that support the claim.

9. Copies of all known documents that support the claim.

10. The Dispute Review Board Recommendation.

11. If an extension of contract time is sought, the documents required by subsection 108.08(d).

12. If additional compensation is sought, the exact amount sought and a breakdown of that amount into the following categories:

A. These categories represent the only costs that, if applicable, are recoverable by the Contractor. All other costs or categories of costs are not recoverable:

(1) Actual wages and benefits, including FICA, paid for additional labor.

(2) Costs for additional bond, insurance, and tax.

(3) Increased costs for materials.

(4) Equipment costs calculated per subsection 109.04(c) for Contractor owned equipment and based on certified invoice costs for rented equipment.

(5) Costs of extended job site overhead (only applies if the dispute also includes a time extension).

(6) Salaried employees assigned to the project (only applies if the dispute also includes a time extension or if the dispute required salaried employee(s) to be added to the Project).

(7) Claims from subcontractors and suppliers at any level (the same level of detail as specified is required for all such claims).

(8) An additional 16 percent will be added to the total of items (1) through (7) as compensation for items for which no specific allowance is provided, including profit and home office overhead.

(9) Interest shall be paid per CRS 5-12-102 beginning from the date of the Notice of Intent to File Claim.

B. In adjustment for the costs as allowed above, the Department will have no liability for the following items of damages or expense:

(1) Profit in excess of that provided in 12.A.(8) above.

(2) Loss of Profit.

(3) Additional cost of labor inefficiencies in excess of that provided in A. above.

(4) Home office overhead in excess of that provided in A. above.

(5) Consequential damages, including but not limited to loss of bonding capacity, loss of bidding opportunities, and insolvency.

(6) Indirect costs or expenses of any nature in excess of that provided in A. above.

(7) Attorney’s fees, claim preparation fees, and expert fees.

(c) Region Transportation Director Decision. When the Contractor properly files a claim, the RTD will review the claim and render a written decision to the Contractor to either affirm or deny the claim, in whole or in part, per the following procedure.

The RTD may consolidate all related claims on a project and issue one decision, provided that consolidation does not extend the time period within which the RTD is to render a decision. Consolidation of unrelated claims will not be made.

The RTD will render a written decision to the Contractor within 90 days after the receipt of the claim package or receipt of the audit whichever is later. In rendering the decision, the RTD: (1) will review the information in the Contractor's claim; (2) will conduct a hearing if requested by either party; and (3) may consider any other information available in rendering a decision.

The RTD will assemble and maintain a claim record comprised of all information physically submitted by the Contractor in support of the claim and all other discoverable information considered by the RTD in reaching a decision. Once the RTD assembles the claim record, the submission and consideration of additional information, other than for clarification and data supporting previously submitted documentation, at any subsequent level of review by anyone, will not be permitted.

The RTD will provide a copy of the claim record and the written decision to the Contractor describing the information considered by the RTD in reaching a decision and the basis for that decision. If the RTD fails to render a written decision within the 60-day period, or within any extended time period as agreed to by both parties, the Contractor shall either:

(1) accept this as a denial of the claim, or (2) appeal the claim to the Chief Engineer, as described in this subsection.

If the Contractor accepts the RTD decision, the provisions of the decision shall be implemented per subsections 108.08, 109.04, 109.05, or 109.10 and the claim is resolved.

If the Contractor disagrees with the RTD decision, the Contractor shall either: (1) accept the RTD decision as final, or (2) file a written appeal to the Chief Engineer within 30 days from the receipt of the RTD decision. The Contractor hereby agrees that if a written appeal is not properly filed, the RTD decision is final.

(d) Chief Engineer Decision. When a claim is appealed, the RTD will provide the claim record to the Chief Engineer. Within 15 days of the appeal either party may submit a written request for a hearing with the Chief Engineer or duly authorized Headquarters delegates.

The Chief Engineer or a duly authorized Headquarters delegate will review the claim and render a decision to affirm, overrule, or modify the RTD decision per the following.

The Chief Engineer will render a written decision within 60 days after receiving the written appeal. The Chief Engineer will not consider any information that was not previously made a part of the claim record, other than clarification and data supporting previously submitted documentation.

The Contractor shall have 30 days to accept or reject the Chief Engineer's decision. The Contractor shall notify the Chief Engineer of its acceptance or rejection in writing.

If the Contractor accepts the Chief Engineer's decision, the provisions of the decision will be implemented per subsections 108.08, 109.04, 109.05, or 109.10 and the claim is resolved.

If the Contractor disagrees with the Chief Engineer's decision, the Contractor shall either (1) pursue an alternative dispute resolution process per this specification or

(2) initiate litigation per subsection 105.24(f).

If the Chief Engineer does not issue a decision as required, the Contractor may immediately initiate litigation per subsection 105.24(f).

For the convenience of the parties to the Contract it is mutually agreed by the parties that any merit binding or De Novo litigation shall be brought within 180-calendar days from the date of the Chief Engineer's decision. The parties understand and agree that the Contractor's failure to bring suit within the time period provided, shall be a complete bar to any such claims or causes of action.

(e) De Novo Litigation If the Contractor disagrees with the Chief Engineer's decision, the Contractor may initiate de novo litigation to finally resolve the claim that the Contractor submitted to CDOT. Such litigation shall be strictly limited to those claims that were previously submitted and decided in the contractual dispute and claims processes outlined. This does not preclude the joining in one litigation of multiple claims from the same project provided that each claim has gone through the dispute and claim process specified in subsections 105.22 through 105.24. The parties may agree, in writing, at any time, to pursue some other form of alternative dispute resolution.

Any offer made by the Contractor or the Department at any stage of the claims process, as set forth in this subsection, shall be deemed an offer of settlement pursuant to Colorado Rule of Evidence 408 and therefore inadmissible in any litigation.

If the Contractor selected litigation, then de novo litigation shall proceed per the Colorado Rules of Civil Procedure and the proper venue is the Colorado State District Court in and for the City and County of Denver.

Contractor provides written notice of dispute to Project Engineer

Contractor provides written REA including the following:

(1) Date of dispute

(2) Nature of order and circumstances causing dispute

(3) Contract provisions supporting dispute.

(4) Estimated cost of dispute with supporting documentation

(5) Analysis of progress schedule and disruption, if any.

Adjustment of payment/schedule in consultation with Program Engineer - Dispute is resolved.

Dispute is unresolved.

Proj Eng/Res Eng & Supt/PM & Contractor’s rep with decision authority above the project level to meet regularly to discuss dispute.

PE denies merit of dispute.

DRB agreement signed.

PE determines dispute has merit.

DRB renders a recommendation.

DRB recommendation is accepted.

Either party rejects DRB recommendation

Up to 30 days – 105.22 (d)

105.22 Project Issue – Verbal discussions between Proj. Eng. and Supt

15 Days – 105.22(b)

CDOT Project Engineer and Contractor discuss merit of dispute.

15 Days – 105.22 (c)

Merit granted – Quantum negotiations.

30 Days – 105.22 (c)

10 days – 105.23 (j)

30 days – 105.23 (i)

DRB Hearing

14 days – 105.23 (k)

Figure 105-1 DISPUTES AND CLAIMS FLOW CHART (Note: If an audit is to be performed, durations in this flow chart are extended accordingly)

Contractor rejects PE’s denial.

Contractor provides written notice to PE.

Contractor accepts denial.

Dispute is resolved.

7 days – 105.22 (c)

7 days – 105.22 (d)

30 days – 105.23 (e)

7 days – 105.22 (c)

Figure 105-1 continued on next page

Prehearing Submittal

5 days – 105.23 (a) (e)

Request for Clarification and Reconsideration

Disagree on quantum.

105.22(a) Proj Eng initiates DRB process

10 days – 105.23 (f)

Adjustment of payment/schedule in consultation with Program Engineer - Dispute is resolved.

90 days – 105.24 (c)

Decision is implemented.

30 days – 105.24 (c)

60 days - 105.24 (d) Contractor rejects and appeals RTD decision to CE.

15 days

105.24 (d)

Chief Engineer renders decision.

45 days –

105.24 (d)

30 days – 105.24 (d)

Contractor rejects CE decision. Contractor accepts CE decision. Decision is implemented.

Dispute is unresolved. Dispute is resolved.

Resolution is implemented.

De Novo Litigation

Litigation

Contractor initiates

Optional Mediation

RTD renders a decision.

Contractor submits certified claim package w/RTD.

Request for hearing.

Contractor accepts.

Court Decision

Either party rejects DRB

30 days – 105.24 (a)

105.23 Notice of intent to file a claim

60 days – 105.24 (b)

Figure 105-1 (continued)

Revision Of Section 105 E-Signature

Add the following to Subsection 105.08:

105.08 Document Management and Professional Engineer and Professional Land Surveyor Electronic Seals. Where the specifications require the Contractor to submit or return documents either in writing or the format is not specified, an electronic file is preferred. The Contractor shall submit the schedule native file, video recordings, photographs, image files, and other media formats in their native file formats. When the document format is not specified, the contractor shall submit electronic documents in PDF. When a submittal requires multiple copies, one electronic document shall satisfy the requirement.

Where a signature is needed, an electronic signature is acceptable. An original signature is a signature signed in ink. Where original signatures or original documents are required a scan shall satisfy the requirement.

The Department will issue Contract Modification Orders (Form 90) and Form 105s that authorize additional work for signature via AdobeSign.

CDOT forms and records shall be signed with an electronic signature that includes the signer’s name, date, and time the document was signed, in addition to locking the appropriate portions after signing. This guidance does not change the approval process or the content requirements for Buy America, COC, and CTR documentation, rather it allows the documentation to either be all electronically signed or a Scanned Original Wet Signature.

An electronic seal is when a Contractor’s Engineer, a Professional Engineer or a

Professional Land Surveyor affix their electronic signature and seal to plans or documents prepared under their responsible charge or control. The electronic seal needs to meet State of Colorado Architects, Professional Engineers, and Professional

Land Surveyors Rules and Regulations, 4 CCR 730-1 requirements, lock the document after signature and shall have a non-expiring transaction identification number that can be used to view the final locked and signed document online.

Revision Of Section 106 Conformity to the Contract of Hot Mix Asphalt

(Less Than 5000 Tons)

Section 106 of the Standard Specifications is…