108.1 108.2

SECTION 108

PROSECUTION AND PROGRESS

108.1 Subletting of Contract

Do not sublet, sell, transfer, assign, or otherwise dispose of the Contract or Contracts, or any portion thereof, or of its right, title, or interest therein; or ei ther legally or equitably assign any of the monies payable under the Contract, or the claim thereto without written consent of the Bridge Construction Engi neer for bridge projects or the Road Construction Engineer for all other pro jects.

2 On all projects, when acting as the Prime Contractor, perform with your own organization and with the assistance of workers under your immediate supervision work amounting to not less than 30% of the combined value of all items of work embraced in the Contract, exclusive of any items of work under the Contract that require highly specialized knowledge, craftsmanship, or equipment not ordinarily available in contracting organizations qualified to bid on the project. Such items are designated in the Contract as "specialty items."

3 Request for permission to sublet, transfer, assign, or otherwise dispose of any portion of the Contract in writing and accompany with documentation showing that the organization or organizations that will perform the work are particularly experienced and equipped for such work. In the request, state the name and mailing address of each proposed subcontractor and include the item of work to be subcontracted. On all federal-aid contracts, ensure that the request also contains a certification that all requirements for federal-aid con struction contracts included in the prime Contract are physically included and are a part of the subcontracting agreement (contract) between the Prime Con tractor and the subcontractor and lower tier subcontractors. In case of any conflict, the required Contract provisions prevail. On all federal-aid and state contracts, state in the request the amount of work involved for each item ex pressed both as a monetary value and as a percentage of the value of the entire Contract. When an agent performs work under a subcontractor, all re quirements applicable to subcontractors apply. All pertinent contract require ments apply on all work sublet, assigned, or otherwise disposed of in any way. Approval to sublet, assign, or otherwise dispose of any portion of the Contract does not serve to release the Contractor or its Surety of any respon sibility for the fulfillment of the Contract.

4 As a requirement of the NPDES General Permit, ensure that the NPDES certification statement and/or co-permittee status is made part of all subcon tracts as specified in Subsection 810.4.2.

108.2 Preconstruction Conference

After receipt of the notice of award and before the beginning of construc tion, contact the DEA of the Engineering District in which the work will take

108.2 108.4 place and establish a mutually agreeable date for a Preconstruction Confer ence. Have present at the Preconstruction Conference the project superin tendent and other representatives or responsible officials involved in the con struction of the project, including representatives of the subcontractors. Offi cials of local county and municipal governments, representatives of affected utility companies and other affected agencies may be requested by the RCE to attend in order that a working understanding can be established, thus pro viding for the coordination of the work among the various parties and allowing the work to proceed with minimum delay.

2 The conference discussion of the project may include such matters as the Contractor's plans and schedules, where and when the prosecution of the work will begin, utilities, right-of-way, agreements affecting the construction, compliance with permits that have been issued, unusual conditions, compli ance with all applicable requirements such as erosion control, pollution con trols, and other pertinent items conducive to better progress and efficiency of operations. Construction pay items may be discussed so that all parties un derstand the type of materials required, the sampling and testing required, the method of construction, the Shop Plans and Working Drawings required, and the method of measuring and paying for the items of work.

3 Ensure that there is a discussion and thorough understanding and accep-tance of the terms and conditions of the Storm Water Pollution Prevention Plan (SWPPP) as required by the NPDES General Permit as specified in Subsection 810.4.2.

108.3 Prosecution of the Work

Begin the work to be performed under the Contract on or before a date that enables completion within the period specified in the Contract. If the Contrac tor asks for and receives permission to begin work before the execution of the Contract, the Contractor is responsible for all claims and liabilities of third par ties arising out of or connected with such interim work done prior to execution of the Contract. The Department is not responsible for payment to the Con tractor for any work performed, costs, expenses, or damages of any kind or nature relative to or resulting from the Department's decision not to execute the Contract. Begin at such points as the RCE may direct and prosecute from as many different points in such part or parts and at such times as may be directed. Provide sufficient materials, equipment, and labor to guarantee the completion of the project in accordance with the Plans and the Specifications within the time set forth in the Contract. Should the prosecution of the work be discontinued for any reason, notify the RCE at least 72 hours in advance of resuming operations.

108.4 Limitation of Operation

Conduct the work at all times in such manner and in such sequence, to the extent practicable, that ensures the least interference with traffic. Have due regard to the location of detours and to the provisions for handling traffic. The use of detours and their locations are subject to approval of the RCE. Do not open work to the prejudice or detriment of work already started. The RCE

108.5 108.5 may require the Contractor to finish a section on which work is in progress before work is started on any additional sections if the opening of such sec tion is essential to public convenience.

108.5 Character of Workers, Methods, and Equipment

Employ sufficient labor and equipment, at all times, for prosecuting the sev eral classes of work to full completion in the manner and time required by the Specifications.

Ensure that all personnel have sufficient skill and experience to properly perform the work assigned to them. Make workers engaged in special work or skilled work have sufficient experience in such work and in the operation of the equipment required to perform the work properly and satisfactorily.

At the written request of the DOC, remove forthwith any person or persons employed by the Contractor or by any subcontractor who, in the opinion of the DOC, do not perform their work in a proper and skillful manner or are intem perate or disorderly. Do not employ or allow any subcontractor to employ such person or persons again in any portion of the work without the approval of the RCE.

Should the Contractor fail to remove such person or persons as required above or fail to furnish suitable and sufficient personnel for the proper prose cution of the work, the RCE may suspend the work by written notice until the Contractor remedies the situation. The Contractor is not entitled to any addi tional time or damages caused by the suspension.

Ensure that all equipment that is proposed for use on the work is of suffi cient size and is in suitable mechanical condition to meet requirements of the work and to produce a satisfactory quality of work. Ensure that the equipment used on any portion of the project is such that no injury to the roadway, adja cent property, or other highways results from its use.

When these specifications require that the construction be performed by the use of certain methods or equipment, use such methods or equipment unless others are authorized by the RCE. Should the Contractor desire to use a method or type of equipment other than those specified, request in writ ing, approval from the RCE to do so. Before considering or granting a re quest, the RCE may require the Contractor to furnish, at its expense, evi dence satisfactory to the RCE, that the equipment or method proposed for use by the Contractor is capable of producing work equal to or better than that which can be produced by the methods or equipment specified. If approval is given, it will be on the condition that the Contractor is fully responsible for producing work conforming to the requirements specified. If after trial use of the substituted methods or equipment the RCE determines that the work pro duced is not equal, in all respects, to that which can be produced by the meth ods or equipment specified, discontinue the use of substitute methods or equipment and complete the remaining work with the specified methods or equipment. Remove the deficient work and replace it with work of specified quality or take such other corrective action as the RCE may direct at no cost

108.5 108.7 to the Department. No change is made in basis of payment for the construc tion items involved or in the Contract because of approval of a change in methods or equipment as stipulated herein.

7 The approval for use of particular methods or equipment on any project is in no way considered as an approval of the use of such methods or equip ment on any other project. When specific methods are prescribed in the spe cial provisions or the Plans for a particular project, consideration will not be given to the use of alternate methods or equipment.

108.6 Determination and Extension of Contract Time

Unless otherwise specified, complete the work on or before the completion date stated in the Contract.

2 If the Contract is increased by extension of the Contract as set forth in Subsection 104.4, the contract time is agreed upon and is included in the agreement for the Contract Extension.

3 If satisfactory fulfillment of the Contract with deletions and decreases, au-thorized under Subsections 104.2 and 104.4, requires the performance of work in smaller quantities than those set forth in the Contract, the contract time will not be reduced.

4 Weather and seasonal limitations as set forth in the applicable sections of these specifications or other such limitations provided for in the special provi sions do not affect the specified completion date. Under no circumstances is the Contractor entitled to compensation for weather related delays.

5 If the Contractor finds it impossible for reasons beyond its control to com-plete the work within the contract time as specified or as extended, it may, at any time before the expiration of the contract time as extended, make a writ ten request to the RCE for an extension of time setting forth therein the rea sons that the Contractor believes justify the granting of its request. That in sufficient time was specified is not a valid reason for extension of time. If the RCE finds that the work was delayed because of conditions beyond the con trol and without the fault of the Contractor, the RCE may extend the time for completion in an amount justified by the conditions based on a CPM sched ule. The extended time for completion is then in full force and effect the same as though it was the original time for completion.

108.7 Temporary Suspension of Work

The RCE has the authority to suspend the work, wholly or in part, for such periods as the RCE deems necessary for the following reasons:

• Unsuitable weather conditions,

• Unfavorable conditions for the suitable prosecution of the work,

• Failure of the Contractor to correct conditions unsafe for its workers or the general public,

• Failure of the Contractor to carry out orders given or to perform any provisions of the Contract,

108.7 108.9

• Failure of the Contractor to install or maintain erosion control de vices,

• Failure of the Contractor to install or maintain proper traffic control, or

• For the convenience of the State.

Such suspensions do not constitute grounds for claims for damages or extra compensation by the Contractor except if the suspension is for the conven ience of the State.

2 If it should become necessary to stop work for an indefinite period, make the necessary provisions to maintain accommodations for and safeguard traf fic in as satisfactory a manner as is practicable. Store materials in such a manner that they do not obstruct or impede the traveling public or become damaged in any manner. Take every precaution to prevent damage or dete rioration of the work performed, provide suitable drainage of the roadway by opening ditches, shoulder drains, etc., and erect temporary structures where necessary. Do not suspend work without written authority of the RCE.

108.8 Failureof Contractorto MaintainSatisfactoryProgress

The Contractor may be declared delinquent in its work if, at any time, the percentage of the value of the Contract completed is not within a reasonable percentage of the contract time expired, and it is obvious that the work will not be completed by the specified completion date.

2 A Contractor disqualified under the provisions of this subsection is not per-mitted to bid as an individual, firm, partnership, or corporation under a differ ent name. A Contractor or any contracting firm disqualified will be removed from delinquent status immediately upon evidence that progress as measured above is within a reasonable percentage.

3 A delinquency status check is made when determined necessary by the RCE. If it is evident that the Contractor is delinquent, the RCE will notify the DOC and a Preliminary Notice of Delinquency will be sent to the delinquent Contractor by registered mail.

4 If the Contractor does not remedy the situation or submit a plan to remedy the situation, then a Notice of Delinquency is sent to the Contractor via certi fied mail. The delinquency is not effective until 15 days after receipt of the Notice of Delinquency by the Contractor. During those 15 days, the Contrac tor is allowed to present information in opposition to the delinquency. After 15 days, the Contractor is declared delinquent unless the RCE or DOC decides otherwise based on information received during the 15-day period. The DOC will notify the Contractor via certified mail of the delinquency declaration.

Oncedeclared delinquent. the Contractor is disqualified for further bid dinq and for approval as a subcontractor.

108.9 Failureto CompletetheWork on Time

If the Contractor fails to substantially complete the work by the contract specified completion date, then the Contractor is liable for liquidated damages for each calendar day past the contract specified completion date. The daily

108.9 108.10 liquidated damages rate is determined from the following schedule. The date of substantial completion is determined by the RCE.

Schedule of Liquidated Damagesfor Each DayOverrun in Contract Time

Original Contract Amount Daily Charge per Calendar Day From More Than To and Including at Fixed Rate

$0 $50,000 $100.00

$50,000 $100,000 $200.00

$100,000 $500,000 $400.00

$500,000 $1,000,000 $600.00

$1,000,000 $2,000,000 $800.00

$2,000,000 $5,000,000 $1200.00

$5,000,000 $10,000,000 $1400.00

$10,000,000 andabove $1800.00

108.10 Default and Termination of Contract

The Contractor is in default for any of the following:

• Failure to perform the work with sufficient workers and equipment or with sufficient materials to assure the prompt completion of said work;

• Failure to perform work in accordance with contract requirements and/or refuses to remove and replace rejected materials or unac ceptable work;

• Discontinues the prosecution of the work;

• Failure to resume work that has been discontinued within a rea sonable time after notice to do so;

• Becomes insolvent or is declared bankrupt, or commits any act of bankruptcy or insolvency;

• Allows any final judgment to remain unsatisfied for a period of 15 days;

• Makes an assignment for the benefit of creditors; or

• For any other cause whatsoever, fails to carry on the work in an acceptable manner.

2 If the Contractor or its Surety does not cure or make sufficient progress toward curing the default within 15 days of receipt of Notice of Default, then, at the discretion of the DOC, the Contract may be terminated and the De partment will finish the work by whatever methods it deems reasonable and expedient, or the DOC, without violating the Contract, may take a portion of the work out of the hands of the Contractor. The Department may appropriate

108.10 108.10 or use any or all materials and equipment on the job site as may be suitable and acceptable for performing the work, and methods may be used that the RCE determines are required for the completion of the Contract in an accept able manner.

3 All costs and charges incurred by the Department, including attorney's fees, together with the cost of completing the work under the Contract are deducted from any monies due or that may become due the Contractor. If such ex pense exceeds the sum that would have been payable under the Contract, the Contractor and its Surety are liable and shall pay to the Department the amount of such excess.

4 In all cases, the Surety company has the right to complete the Contract and is given 30 days from receipt of Notice of Default or longer, in the discretion of the RCE, in which to get the work underway. This procedure does not in any way serve to extend the contract time. All charges incident to negotiating with the Surety and arranging for work to be resumed, including attorney's fees, are charged against the Contractor or its Surety as part of the cost of the work.