COMBINED PARTS II-VII.pdf

Section 1: Definitions

1. “Addendum” means a written or graphic instrument issued by the purchasing agency prior to the execution of the contract that modifies or interprets the Bidding Documents by addition, deletion, clarification or correction.

2. “Alternate” means an optional item stated in the bid the amount of which is to be added to or deducted from the amount of the base bid.

3. “Architect” or “Engineer” means a firm that provides professional design services and is engaged by the Division of Engineering and Contract Administration for Capital Construction Projects, and identified as such in the Contract Documents. The term refers to the design team, consisting of the prime architect/engineer and all Sub-Consultants (if used) or consultant identified by the owner.

4. “Bid” means the sum stated in the Bid Response for which the bidder offers to perform the work described in the specifications and detailed on the plans.

5. “Bidder” means one who submits a bid directly to the owner for the work described in the bidding documents.

6. “Bidding Documents” means the Solicitation, including Instructions to Bidders, General Conditions, Special and Supplemental Conditions, Forms for Response, plans, specifications and Addenda issued prior to receipt of bids.

7. “Bid Response” means a complete and properly signed document, offering to do the work or designated portion thereof, supported by data called for by the bidding documents.

8. “Chief Purchasing Officer” means the secretary of the Finance and Administration Cabinet, who shall be responsible for all procurement of the Commonwealth except as provided by KRS Chapters 175, 176, 177, and 180. KRS 45A.030(3).

9. “Commonwealth” means the Commonwealth of Kentucky.

10. “Construction” means the process of building, altering, repairing, improving or demolishing any public structures or buildings, or other public improvements of any kind to any public real property. It does not include the routine maintenance of existing structures, buildings or real property. KRS 45A.030(4).

11. “Contract (CT/CT2)” means a document established to purchase a specific quantity or amount of goods or non-professional services at a specific price. KRS 45A.030(8).

12. “Contract Modification” means any written alteration in the specifications, delivery point, rate of delivery, contract period, price, quantity or other contract provisions of any existing contract, whether accomplished by unilateral action in accordance with a contract provision or by mutual action of the parties to the contract. It includes bilateral actions, such as supplemental agreements, and unilateral actions, such as change orders, administrative changes, notices of termination and notices of the exercise of a contract option. KRS 45A.030(9).

13. “DECA” means the Division of Engineering and Contract Administration within the Department for Facilities and Support Services, Finance and Administration Cabinet.

14. Delivery Order (DO/DO2)” means a document established by a state agency to purchase a specific quantity at a specific price referencing a Master Agreement. DO documents are generally used for commodities and DO2 documents are used for services.

15. “DFSS” means the Department for Facilities and Support Services within the Finance and Administration Cabinet.

16. “DRP” means the Division of Real Properties within the Department for Facilities and Support Services, Finance and Administration Cabinet.

INSTRUCTIONS TO BIDDERS

17. “Electronic Offer” means an online bid through the state’s eProcurement system, an offer submitted by electronic mail, or an offer submitted by facsimile.

18. “FAC” means the Finance and Administration Cabinet.

19. “Government Body” means any department, commission, council, board, bureau, committee, institution, legislative body, agency, government, corporation or other establishment of the executive or legislative branch of the state government. KRS 45A.030(17).

20. “Master Agreement (MA)” means a document that establishes a price agreement for use by state agencies with a vendor for supplying specific goods and services at specific unit prices during a specified time period.

It does not place an order for goods and services.

21. “Offer” means a bid, proposal, Solicitation response or quotation.

22. “OPS” means the Office of Procurement Services within the Finance and Administration Cabinet.

23. “Owner” means the Commonwealth of Kentucky.

24. “Person” means any business, individual, organization or group of individuals. KRS 45A.030(20).

25. “Planholder” means any entity, supplier and/or subcontractor that has purchased plans and specifications from the Division of Engineering and Contract Administration’s reprographics vendor in order to submit a bid with the Commonwealth of Kentucky.

26. “Procurement” means the purchasing, buying, renting, leasing or otherwise obtaining of any supplies, services or construction. It includes all functions that pertain to the procurement of any supply, service or construction item, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration. KRS 45A.030(21).

27. “Proof of Necessity Agreement (PON2)” means a type of contract established by a state agency to purchase professional services (i.e. personal service contracts, grants and memoranda of agreements).

28. “Purchase Order (PO/PO2)” means a type of contract established by a state agency to purchase a specific quantity or amount of goods or non-professional services at a specific price and is generally for a one-time purchase. A PO2 for non-professional services may contain an option to renew for an additional time period.

29. “Purchasing Agency” means any governmental body that is authorized by this code or its implementing administrative regulations or by way of delegation from the chief purchasing officer to contract on its own behalf rather than through the central contracting authority of the chief purchasing officer. KRS 45A.030(23).

30. “Purchasing Officer” means any person authorized by a governmental body in accordance with procedures prescribed by administrative regulations to enter into and administer contracts and make written determinations and findings with respect thereto. The term includes an authorized representative acting within the limits of authority. KRS 45A.030(24).

31. “Quote” or “Quotation Response” means a complete offer to perform the work specified in the Request for Quotation.

32. “RFB” means a Request for Bids.

33. “RFI” means a Request for Information.

34. “RFP” means a Request for Proposals. KRS 45A.070(5).

35. “RFQ” means a Request for Quotations.

36. “SAS” means the Office of Statewide Accounting Services within the Finance and Administration Cabinet.

37. “Secretary” means the secretary of the Finance and Administration Cabinet.

38. “Solicitation” means an RFB, RFI, RFP or RFQ.

39. “Sub-bidder” or “Subcontractor” means one who submits a bid to a prime bidder for materials or labor for a portion of the work described in the bidding documents.

40. “Tiered Pricing” means a determination of price based on volume, where the larger the volume, the larger the discount offered.

41. “Time” means calendar days.

42. “Unit Price” means an amount stated in the bid as a price per unit of measurement for materials or services as described in the bidding documents.

43. “Using Agency” means the state government entity that utilizes the work being contracted.

FAP 220-05-00

BIDDER INSTRUCTIONS FOR COMPETITIVELY SEALED BID CONSTRUCTION SOLICITATIONS

1. Bidder’s Representations: Each bidder, by submitting a bid, swears or affirms, under penalty of law, that:

a. The bidder has read and understands the bidding documents and the bid is made in accordance with the bidding documents.

b. The bidder has carefully examined the site of the proposed work and is familiar with the local conditions under which the work is to be performed.

c. The bid is premised upon furnishing the work required by the bidding documents.

d. The bid amount has been arrived at by the bidder independently and has been submitted without collusion with, and without any agreement, understanding or planned common course of action with any other contractor, vendor of materials, supplies, equipment or services described in the Solicitation, that is designed to limit independent bidding or competition.

e. The contents of the bid have not been communicated by the bidder or its employees or agents to any person not an employee or agent of the bidder, or its surety on any bond furnished with the bid and will not be communicated to any such person prior to the bid opening.

f. The bidder is legally entitled to enter into a contract with the Commonwealth and the award of a contract shall not create any conflict of interest, including those set out in KRS 45A.330 – KRS 45A.340; KRS 45A.455 and KRS 164.390.

2. Bidding Documents:

a. A bidder, sub-bidder, sub-contractor and others may obtain bidding documents in the manner and for the charge, if any, stated in the Solicitation.

b. A complete set of bidding documents shall be used in preparing bids. The Commonwealth assumes no responsibility for misinterpretations resulting from the use of incomplete sets of bidding documents. The bidder shall supply all information called for in the Solicitation. Failure to supply the specified information may be cause for determining the bid nonresponsive.

c. The Commonwealth, in providing bidding documents, does so only for the purpose of obtaining bids on the work and does not confer a license or grant for any other use.

d. A bidder shall promptly notify the purchasing officer of any ambiguity, inconsistency or error, which it may discover upon examination of the bidding documents or of the site and local conditions.

e. All questions regarding the meaning or interpretation of the bidding documents shall be directed in writing to the purchasing officer. Unless otherwise specified in the Solicitation, questions received less than ten

(10) calendar days prior to the date for receipt of bids may not be answered.

f. Any interpretation, correction or change of the bidding documents shall be made by an addendum issued by the purchasing agency. Interpretations, corrections or changes of the bidding documents made in any other manner shall not be binding and bidders shall not rely upon such interpretations, corrections or changes.

g. Unless otherwise indicated in the bidding documents, the materials, products and equipment described or referenced by manufacturers’ or vendors’ names, trade names and catalog numbers are intended to establish a standard of required function, dimension, appearance and quality. Unless otherwise stated, equal items may be furnished or used if approved by the purchasing officer in consultation with the architect or the director of DECA.

h. Addenda shall be published on the Commonwealth’s eProcurement web site, and shall be issued to all who are registered planholders with the contracted reprographics company or other distribution authorized by the director of DECA.

i. Copies of addenda shall be made available for inspection wherever bidding documents are on file.

j. No addenda of a material nature shall be issued later than seven (7) calendar days prior to the date for receipt of bids, except for addenda postponing the date for receipt of bids or withdrawing the Solicitation.

k. The bidder shall ascertain prior to submitting a bid that the bidder has received all addenda issued by the purchasing officer for the particular solicitation. The bidder shall acknowledge receipt of all addenda on the Bid Response or by a separate letter to the purchasing officer, which shall be received at or prior to the hour and date specified for receipt of bids.

3. Bidding Procedure:

a. Bids shall be submitted on the Bid Documents provided by the purchasing officer.

b. All blanks in the Bid Documents shall be completed and all required support data shall be furnished.

c. If required in the bidding documents, sums shall be expressed in both words and numerical figures. In the case of discrepancy between the two, the amount in words shall prevail.

d. The authorized representative of the bidder, who signed the Bid Response, shall initial any alteration or erasure in ink.

e. The bid shall be firm in offer and conform substantially to the advertised terms, plans and specifications.

Any qualifications or reservation imposed by a bidder in the bid retaining the option of accepting, modifying or rejecting an offered contract shall be cause to render the bid not firm and ineligible for consideration of award. Any offer in response to the Solicitation that includes terms contrary or in addition to those in the Solicitation may be considered non-responsive and may be rejected by the Commonwealth.

f. All alternates specifically called for by the Commonwealth shall be bid. Voluntary alternate bids or an alternate to a lump sum bid shall not be considered.

g. The bidder shall make no stipulations on the Bid Response nor qualify the bid in any manner.

h. A person legally authorized to bind the bidder to a contract shall sign the Bid Response. The Bid Response shall also include the legal name of the bidder and a statement indicating whether the bidder is a sole proprietorship, a partnership, a corporation or other legal entity. A bid by a corporation shall also identify the state of incorporation and federal employer identification number.

i. The purchasing officer shall retain the bid security of bidders until:

1. The contract has been executed and performance and payment bonds have been furnished;

2. The specified time has elapsed so that bids may be withdrawn; or

3. All bids have been rejected.

j. The completed Bid Response, bid security, and required support data shall be enclosed in a sealed envelope. The envelope shall be addressed to the bid receipt clerk stated in the Solicitation and shall identify the bidder’s name and address, the invitation number stated in the bidding documents, closing date and hour. If the bid is sent by mail, the sealed envelope shall contain the notation “BID ENCLOSED” on the face thereof.

k. Bids shall be received at the designated location prior to the closing time and date for receipt of bids indicated in the Solicitation or any extension thereof made by addendum. Bids received after the closing time and date for receipt of bids may be considered for evaluation and award only if:

1. No other bids were received within the advertisement period;

2. The readvertisement time delay would seriously affect the operations of the using agency; and

3. In the reasonable judgment of the purchasing officer, the bid was finalized prior to the official closing time and date for the receipt of bids.

l. A bidder shall assume full responsibility for timely delivery at the location designated for receipt of bids.

m. Oral, telephonic, facsimile or telegraphic bids or changes in bids by such methods are not permitted and shall not be considered.

n. A competitively solicited contract shall be awarded from a bid evaluation in the state’s eProcurement system or all bidders shall be notified of the award in writing.

4. Modification or Withdrawal of a Bid:

a. A bid may be withdrawn prior to the closing time and date for receipt of bids by written request from an authorized representative of the bidder. The modification or withdrawal of a bid shall be received by the receipt clerk stated in the Solicitation prior to bid closing time to be considered valid.

b. A withdrawn bid may be resubmitted up to the closing time designated for the receipt of bids.

c. No bidder may withdraw, modify or cancel its bid for a period of thirty (30) calendar days following closing time and date for receipt of bids without the bid security being subject to forfeiture.

5. Legal Requirements:

a. A foreign corporation submitting a bid shall be registered with the Kentucky Secretary of State and be declared in good standing prior to the issuance or receipt of a contract.

b. A domestic corporation submitting a bid shall be in good standing in accordance with the requirements of the Kentucky Secretary of State.

6. Taxes:

a. The winning bidder shall be liable for payment of Kentucky sales and use tax.

b. The winning bidder is deemed the end user of all building materials used in construction projects for the Commonwealth.

c. The winning bidder may not separately state Kentucky sales or use tax payable by the Commonwealth.

7. Planholder’s List: The published planholder and addenda listing is for general information purposes and the exclusion or inclusion of any firm in no way expresses or implies Commonwealth approval or disapproval of the qualifications of any listed bidder, subcontractor, or material or equipment supplier.

8. Bid Bonds: Pursuant to KRS 45A.185, DECA or the using agency may require a bid bond as surety that a bidder will hold its offer firm for a specified period of time. If the Solicitation requires a bid bond, a bidder shall file with the requesting agency a bid bond or certified check in the amount and form specified by the Solicitation with the requesting agency. The bond shall be received either with the bid or prior to the bid closing to be considered.

a. The bond shall be in an amount equal to at least five percent (5%) of the amount of the bid or as stated in the Solicitation.

b. In addition to signing the bid bond as principal, the bidder shall have the bond signed by a surety company authorized to do business in the Commonwealth. A list of surety companies may be obtained from the Kentucky Department of Insurance. If the surety on a bond has its authority to do business in Kentucky revoked or, if for any reason it ceases to do business in the Commonwealth, the bidder shall promptly obtain another surety on the bond.

c. The bond shall be conditioned on full performance of all obligations imposed on the bidder by the Solicitation, including the obligation to keep the price firm for as long a period as specified in the Solicitation, obligation to enter into a contract with the Commonwealth, and the obligation to file a performance payment bond if required by contract. The bid bond shall provide that upon failure to perform an obligation, the Commonwealth may recover from the bidder and the surety, or either of them, any and all damages suffered because of the failure.

d. If a bidder elects to submit a certified check in lieu of a bid bond, it shall be security for full performance of all obligations referred to in subsection c. of this Section.

e. If a bidder is not awarded a contract, the certified check shall be returned to that bidder promptly after the award is made. The successful bidder's check shall be returned after the contract is awarded or as soon as the bidder has filed a performance bond, if required. Checks may be returned by certified mail, return receipt requested. The return receipts shall be electronically attached or hard copies attached to each bidder's bid and filed in the bid folder.

9. Consideration of Bids:

a. Unless the bidding documents indicate otherwise, all properly identified, timely bids shall be publicly opened, read aloud, and listed on the official bid tabulation. Tabulations shall be made available to bidders upon written request to the FAC’s Open Records Custodian.

b. The Commonwealth retains the right to cancel the Solicitation, to reject any and all bids, and to waive technicalities and minor irregularities in bids, if such action is determined to be in the best interest of the Commonwealth.

c. Grounds for the disqualification of bids are stated in 200 KAR 5:306(4)(2).

d. Minor or technical deficiencies or irregularities in a bid may be waived by the purchasing officer on behalf of the Commonwealth, if:

1. The purchasing officer determines that it is in the Commonwealth’s best interest to do so;

2. The technicalities or irregularities are mere matters of form not affecting the material substance of a bid, represent an immaterial deviation from or variation in the precise requirements of the Solicitation, and have no more than a trivial or negligible effect on price, quality, quantity or delivery of supplies or performance of services being procured; and

3. The correction or waiver of the technicality or irregularity does not affect the relative standing of, or prejudice other bidders.

e. If the Commonwealth does not waive the deficiency, the deficient bid shall be rejected.

10. Acceptance of Bid:

a. A contract shall be awarded, after a reasonable bid evaluation period, in accordance with the Solicitation, if the acceptable bid is within the amount budgeted by the agency.

b. The Commonwealth reserves the right to accept or reject any alternate bid. If alternates designated by the Commonwealth are considered in the award, the alternates shall be accepted in the sequence in which they are listed on the Bid Documents and the lowest bid sum shall be computed on the basis of the sum of the base bid plus any alternates accepted.

11. Qualification of Contractors:

a. A bidder shall submit a statement of the bidder’s qualifications as part of the Bid Response. The purchasing officer shall have the right to make such inquiry as deemed necessary to determine the ability of the bidder to perform the work in a prompt and efficient manner in accordance with the contract documents. The failure of a bidder to promptly supply information in connection with the purchasing officer’s inquiry may be grounds for a determination that such bidder is nonresponsive.

b. In determining the qualifications and responsibility of a bidder, the purchasing officer shall consider the bidder’s experience, facility, previous work standing, financial standing, skill, quality and efficiency of construction plant, and equipment proposed to be utilized on the project.

c. The Commonwealth may reject any bid if an investigation and evaluation of the bidder’s qualifications give reasonable doubt that the bidder can perform the work in a prompt and efficient manner in accordance with the contract documents.

12. Unit Prices:

a. If requested in the Solicitation, a bidder shall submit a list of unit prices in accordance with the Bid Document instructions, which shall include labor, materials, equipment, appliances, supplies, overhead and profit, as applicable.

b. Unit prices shall be used for the pricing of changes in the quantity of work from that indicated by the contract drawings and specifications, if the Commonwealth has authorized such changes in writing.

c. Only one (1) unit price shall be quoted for each designated item of work. The unit price shall be used to calculate price adjustments based on deductive as well as additive changes.

d. Unit prices shall apply to all phases of the work whether the work is performed by the bidder or by the bidder’s subcontractor.

e. For unit prices of a lump sum bid contract, the Commonwealth reserves the right, prior to an award of contract, to evaluate the unit prices and adjust or reject any unit price that is determined by the purchasing officer to be unreasonable in amount.

f. If a total sum bid is made by line item, and unit prices are quoted for estimated quantities of units of work, such unit prices are not subject to change. However, the purchasing officer reserves the right to correct mathematical errors in extensions and additions by the bidder. In the latter case, the purchasing officer’s corrected bid sum total shall supersede the bidder’s incorrect computed bid sum total.

13. Subcontractor Listing:

a. If requested, a bidder shall list the names of subcontractors proposed for each of the principal portions of the work, including those persons or entities who are to furnish material or equipment fabricated to a special design, in the designated place on the Bid Documents.

b. When a listed subcontractor is proposed for a principal portion of the work as required in subsection a.

above, and that subcontractor is not self-performing the work, but is subcontracting the work to lower tier subcontractor, each lower tier subcontractor shall be listed in parenthesis after the name of the main subcontractor. Without such listing of lower tier contractors, the main subcontractor must perform the work of that principal portion of the work with its own forces in its entirety.

c. A bidder shall establish, to the satisfaction of the purchasing officer, the reliability and responsibility of the listed subcontractors. The bidder may be required by the purchasing officer to provide additional information regarding listed subcontractors, including listed lower tier subcontractors.

d. If, after due investigation, there is reasonable objection to the qualifications of a listed subcontractor or a listed lower tier subcontractor, the bidder shall, upon written direction of the purchasing officer, submit the name of an acceptable substitute subcontractor or lower tier subcontractor with no change in bid price.

The failure of the bidder to promptly comply with this requirement may be grounds for rejection of the bid.

e. Any listed subcontractor or listed lower tier subcontractor to whom the purchasing officer does not make written objection prior to the award of the contract shall be deemed acceptable to the Commonwealth.

f. A bidder shall make no other substitution for any listed subcontractor or listed lower tier subcontractor without first receiving the approval of the purchasing officer in writing of the intended substitution and the specific reason for the substitution. A substitution may be disapproved if the purchasing officer has reasonable objection. The purchasing officer may require a written agreement from the subcontractor being released.

g. Any work performed by a lower tier subcontractor that is not listed on the form of proposal in the manner described above, where required by the purchasing officer, shall be deemed to have been installed at the risk of the general contractor and the Commonwealth reserves the right, at its sole discretion, to reject that portion of the work and require that the work be removed and installed by a listed subcontractor or that the Commonwealth otherwise be compensated by a credit change order for an amount determined by the Commonwealth as reasonable for acceptance of such work installed by a non-listed lower tier subcontractor.

h. Nothing contained in the bidding documents shall be deemed to create a contractual relationship between the Commonwealth and any subcontractor.

14. Materials and Contractor Listing:

a. If requested, a bidder shall submit a listing of primary materials and equipment, including manufacturer’s name, brand and catalog number. The materials and equipment listing shall be bound with the Bid Response or completed in the time period designated in Section 15.b. of this FAP.

b. Prior to the final acceptance of a bid, the purchasing officer shall make a preliminary review of the bidder’s list of materials and equipment. The purchasing officer shall advise the bidder of the tentative acceptability of such materials and equipment, subject to satisfactory completion and approval of shop drawings, or direct such other action as may be necessary in order to meet the requirements of the contract documents.

If any of the listed material or equipment is determined not to meet the requirements of the contract documents, the bidder shall be required to furnish other material or equipment meeting those requirements at no change in bid price. Preliminary review and acceptance of the above list shall not relieve the bidder, as the contractor, of the obligation to furnishing equipment and materials in accordance with the contract documents.

15. Post-Bid Review:

a. A bidder may have an authorized representative at the bid opening for the submittal of the material and equipment listing and the post-bid review of the apparent winning bid.

b. Unless otherwise provided in the bidding documents or authorized by the purchasing officer, the apparent winning bidder shall submit the material and equipment listing no later than one (1) hour after the close of the reading of the bids. The materials and equipment listing shall be that listing bound with the Bid Documents.

c. After opening, the scope of work bid by each bidder shall be reviewed by representatives of the purchasing agency, the using agency, the architect or engineer, and the apparent winning bidder. Review shall be directed toward subcontractors, material listing, unit prices and qualifications of the bidder.

d. The bidder’s representative shall have the authority and ability to respond to questions that arise during the review.

16. Equal Employment and Nondiscrimination:

a. The Commonwealth is committed to a policy of providing equal job opportunities on public contracts and prohibiting discrimination based on race, creed, color, sex, age, religion, national origin or disability in employment. KRS 45.560 – KRS 45.640.

b. The utilization of minority vendors and subcontractors is encouraged, whenever possible, on public works contracts. The bidder and contractor should make full efforts to locate minority business persons. KRS 45A.610.

c. Unless exempted in accordance with KRS 45.590, the provisions of KRS 45.560 – KRS 45.640 shall be binding upon the declared successful bidder and the resulting contract shall contain the provisions set forth in KRS 45.570(2).

d. Unless a bidder is exempt under KRS 45.560 – KRS 45.640, the apparent successful bidder shall submit to the purchasing agency in the manner described and on the form(s) required, the information required by KRS 45.600 within five (5) calendar days of being declared the apparent low bidder. The form(s) shall be reviewed by the FAC Office of Equal Employment Opportunity and Contract Compliance.

17. Performance and Payment Bonds:

a. Pursuant to KRS 45A.190 and KRS 45A.195, a bidder shall deliver the required performance and payment bonds to the purchasing agency upon notification of intent to award, or, with the approval of the purchasing officer, within fourteen (14) calendar days after that date. Otherwise, the Commonwealth may determine that the proposed awardee has abandoned the Bid Response and the bid shall become null and void.

b. Unless otherwise specified in the bidding documents, the bonds shall be written on the form bound in the bidding document in the number of copies to be specified by the purchasing officer.

c. A bidder shall require the attorney-in-fact, who executes required bonds on behalf of the surety, to affix thereto a certified and current copy of his/her Power of Attorney. The date of the Power of Attorney shall not precede the date of the bonds. The bonds shall be executed with a licensed resident or non-resident agent, who represents insurance companies authorized to do business in Kentucky.

18. Award of Contract:

a. The issuance of an award of a contract is contingent upon securing an acceptable bid that is within the amount of budgeted funds and determining that the award of contract is in the best interest of the Commonwealth.

b. Unless otherwise provided in the bidding documents, the Agreement between the Commonwealth and the contractor shall be written on the standard form of agreement bound within the Solicitation. The Commonwealth shall not be required to enter into or sign further agreements, leases, company orders or other documents to complete the Agreement.

c. The Commonwealth’s acceptance of the bidder’s offer in response to the Solicitation, indicated by the issuance of a contract award, shall create a binding agreement between the parties consisting of the documents listed below. In the event of a conflict between the provisions contained in the contract, the order of precedence shall be in the same listing order as below.

1. Solicitation including any addenda;

2. Specifications;

3. Special Conditions;

4. General Conditions;

5. Technical provisions of the specifications;

6. Drawings/plans; and

7. Bid Response to the Solicitation.

19. Award of Construction and Construction-Related Contracts: Capital construction funded contracts require properly authorized Appropriation, Allotment, Revenue Budget, Project Management Master and Journal Voucher Transfer documents (SAS-5, SAS-14) for award of contract and allocation of construction funds. The issuing agency shall execute a construction contract using agency or general fund accounts on the basis of a duly signed agency Purchase Request.

Commonwealth of Kentucky Revised: March 1, 2019 Rev

General Conditions – General Contractor Page 1

FINANCE AND ADMINISTRATION CABINET

DEPARTMENT FOR FACILITIES MANAGEMENT

DVISION OF ENGINEERING AND CONTRACT ADMINISTRATION

GENERAL CONDITIONS of the Contract for Construction

- General Contractor

These General Conditions of the Contract for Construction – General Contractor have been implemented by the Kentucky Division of Engineering and Contract Administration for the purpose of delineating the provisions of the Contract for Construction when the Commonwealth has entered into a Contact with a General Contractor to accomplish a Capital Construction Project. The Document as a whole outlines the primary obligations and basic expectations for each entity involved in the Project.

These General Conditions apply to each section of the specifications and to the Contract Documents as a whole and are binding upon the Contractor and all Subcontractors as each are subject to the provisions contained herein.

These General Conditions are intended to define and establish certain definitions, procedures, rules and provisions of the Contract governing the operation so that the Work may be continued and be completed in an orderly, expeditious and workmanlike manner.

These General Conditions, together with the specifications and Contract Documents, shall further establish the standards of material and workmanship for the Work.

Specific Project requirements may alter the provisions indicated herein where strict adherence to the provisions of this document are not warranted or applicable. The Special Conditions and Supplemental Conditions contained in the Contract Documents, if present, modify and take precedence over the provisions of these General Conditions for this specific Project.

These General Conditions are based on and are consistent with the specific Kentucky Revised Statues passed by the Kentucky Legislature and signed into effect by the Governor; specific Kentucky Administrative Regulations promulgated by State Agencies to enhance and clarify procedures that are authorized by a specific statute; specific Finance Cabinet Administrative Regulations; and the DECA Procedures Manual.

General Conditions – General Contractor Page 2

Contents Page Article Title

3 ‘1. Definitions of Terms 6 ‘2. Intent and Interpretation 8 ‘3. The Architect, Engineer, Consultant (A-E) 12 ‘4. Construction Schedule 13 ‘5. Shop Drawings; Submittals 15 ‘6. Documents and Samples at the Site 15 ‘7. Contract Documents Property of Owner 15 ‘8. Supervision and Construction Procedures 19 ‘9. Labor, Material and General Contractor Warranty 23 ’10. Surveys, Permits, Fees, Notices, and Tests 22 ’11. Protection of Work, Property, Employees and Public 25 ‘12. Inspection of Work/ Defective or Incomplete Work / Special Inspections 27 ‘13. Royalties and Patents 27 ‘14. Changes in the Work/ Change Orders 31 ’15 Project Records 31 ’16. Delays and Extensions of Time 35 ’17 Subcontractors 36 ’18. Payment 39 ’19. Completion 45 ’20. Correction of Work 46 ’21. Suspension of Work 47 ’22. Termination 48 ’23. Indemnification 48 ’24. Insurance 50 ’25. Performance and Payment Bonds 51 ’26. Claims by the Contractor/Concealed Conditions/Disputes 52 ’27 Liens 52 ’28 Assignments 53 ’29 Separate Contracts 53 ’30 Allowances 53 ’31. Project Meetings 55 ’32 Miscellaneous Provisions Regarding Contractor’s Work 56 ’33 Apprentices 56 ’34. Nondiscrimination in Employment 55 ’35. Affirmative Action; Reporting Requirements 57 ‘36 Access to Records 58 ‘37 Commonwealth Project Forms and other Web links

General Conditions – General Contractor Page 3

Articles ‘1. Definitions of Terms

Wherever used in these General Conditions or in other Contract Documents, the following terms have the meaning indicated which are applicable to both the singular and plural thereof:

‘1.1 Addenda Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the Bidding Requirements or the Contract Documents. An Addendum supersedes related provisions of the Contract Documents which are clarified, corrected or changed by the addenda.

‘1.2 Agency or Using Agency, defined by KRS 45a.030, and is the state government entity which utilizes the Work being contracted. The Agency is a “client” of the Owner and advises the Owner of the needs, requirements and desires of the Agency related to the project. The Owner consults with the Agency on matters related to the Project. The Agency does not possess the legal authority of the Owner (see KRS 45a.045).

‘1.3 Architect, Engineer or Consultant (A-E) is the person or entity, either a registered Architect, Registered Engineer, or Consultant, who is identified as such in the Contract Documents and on the drawings or any replacement Registered Architect, Registered Engineer, or consultant identified by the Owner. The A-E is a separate contractor and not an agent of the Owner. The term includes any associates or consultants employed by the A-E to assist in providing the required professional services to the Owner.

‘1.4 Certification of Payment is the Owner’s Progress Payment Forms, DOA-24 and DOA-25. All Payments made to the Contractor under this contract shall be on the appropriate Owner’s Progress Payment Form.

‘1.5 Change Order means a written order to the Contractor executed by the Owner and the A-E after execution of the Contract, directing a change in the Work and may include a change in the Contract Price or the Contract Time, or any combination thereof. There shall be no authorized changes in the Work, which affect either Contract Price or Contract Time, without a fully executed Change Order, except as provided elsewhere herein.

‘1.6 Contract is the legal relationship, duties and obligations between the Owner and Contractor as evidenced by the Contract Documents for the Project.

‘1.7 Contract Time is the number of calendar days between the Date of Commencement and the dates set for Substantial Completion and Final Completion of the Work, including any adjustments thereto, all as established in the Contract between Owner and Contractor

‘1.8 Contract Documents include the Invitation for Bids, the Instructions to Bidders, the Payment and Performance Bonds, the General Conditions, the Special or Supplemental Conditions, the drawings, specifications, solicitation addenda, the contractors response to the solicitation, any written clarification of the response, the award document containing the Agreement between Owner and Contractor, and modifications issued after execution of the Contract. Modifications include (1) Change Orders issued as provided in Article 14, and (2) Field Orders for minor changes in the work issued by the A-E as provided in Article 14. Documents not included or expressly contemplated in this Paragraph, 1.8, do not, and shall not, form any part of the Contract between the Owner and the Contractor.

‘1.9 Contract Sum means the sum stated in the Contract including any authorized adjustments thereto and is the total amount payable by the Owner to the Contractor for the performance of the Work under the Contract Documents.

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‘1.10 Contractor or General Contractor means the person or entity with whom the Owner has executed the Contract for construction. The Contractor may also be referred to as General Contractor.

The Contractor shall hold his subcontractors, suppliers and others under his employ or contract to the terms and conditions of the Contract Documents.

‘1.11 Damages for untimely performance means a calculated monetary amount to be paid to the Owner, based on real costs which the Commonwealth incurs, due to the Contractor's failure to complete the Work within the allowable time identified in the Contract Documents. This term may also be referred to as “Liquidated Damages” where the actual cost of damages for untimely performance cannot be readily calculated and a definite sum is predetermined to be paid to the Owner. The amount of Liquidated Damages shall be defined in the Special Conditions of this Project.

‘1.12 Date of Commencement is the date specified in the Contract as the date upon which the Contractor is authorized to begin work. The Contract Time as set forth in paragraph 1.7 is determined using this Date of Commencement as the starting date.

‘1.13 DECA Project Manager means the person(s) delegated authority to act on behalf of the Owner.

Such person(s) is employed by the Owner, DECA's Project Manager(s) will be designated at the Pre- Construction Meeting. DECA reserves the right to change its designated Project Manager(s) at any stage of the Work, for the sole purpose or benefit of the Commonwealth.

‘1.14 Delay means an event that causes an increase in the duration of the Project, or that changes the sequence of the Work or individual Work activities, thereby preventing completion of the Project within the time period specified in the Contract Documents. An event that does not cause an increase in the duration of the Project or prevents the completion of the Project within the time period specified in the Contract Documents, such as an event that is not on the critical path of the project schedule, is not a delay under this Contract.

‘1.15 Direct Expenses is defined as “All items of expenses directly incurred by or attributable to a specific project, assignment or task” and “Direct costs consist of direct materials, direct labor, subcontract costs, and other miscellaneous direct costs such as bonding and equipment rentals, that are directly related to and can be specifically attributed to an individual contract.”

‘1.16 Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued , showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. Where it is obvious that a drawing illustrates only a part of the given work or of a number of items, the remainder shall be deemed repetitious and so construed.

‘1.17 Document Collaboration is the Owner’s web-based document collaboration system that shall be used by all project participants for the submission, transmittal, transfer, review, approval, processing of all documents related to this project. Where the General Conditions, the technical specifications, or the Contract for Construction indicates that a submission of documents is required, this submission shall be through the Owner’s Document Collaboration System.

‘1.18 Extra Work as used in Article 14 is defined as Work not part of the existing Contract Documents which is being added to the Contract by a fully executed Change Order.

‘1.19 A Field Order is a written order issued by the A-E which clarifies or interprets the Contract Documents, or orders minor changes in the Work which does not require a change under Article 14.

Field Orders are issued to the Contractor through the Owner’s Document Collaboration System. Field Orders are also called A-E’s Supplemental Instructions (ASIs).

‘1.20 Final Completion is defined as the Work being acceptable under the Contract Documents and the Contract fully performed in accordance with the terms and conditions of the Contract Documents and the entire payment balance due the Contractor is due and payable.

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‘1.20.1 Final Completion Date shall have the meaning as described to it in Article ‘19.5.

‘1.21 Notice of Intent to Award is a written letter issued to the apparent successful contractor after acceptance of bid price, unit prices, subcontractors and equipment and materials to inform them of such acceptance and request the required additional documentation to initiate the Contract. This is NOT an authorization to proceed.

‘1.22 Owner means the Commonwealth of Kentucky, acting through the Finance and Administration Cabinet and its Administrative Agent, the Department for Facilities and Support Services, Division of Engineering and Contract Administration. The Owner is represented solely by the Division of Engineering and Contract Administration. The Owner is represented by the DECA Project Manager for the specific Project.

‘1.23 The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by other Contractors, working under separate Contract with the Owner.

‘1.24 Resident Observer means an individual who has a direct contract with the A-E to observe and report on activities at the work site. A Resident Observer employed by the A-E is not authorized to serve as the Owners Representative, unless so designated by the Owner in writing.

‘1.25 Retainage means money earned by a contractor for work accepted by the Owner, but withheld to ensure proper performance by the contractor. Retainage is further defined in Article ‘18.

‘1.26 Shop Drawings means drawings, completion diagrams, schedules, and other data specially prepared for the Work by the Contractor or any Subcontractor, lower tier subcontractors, manufacturer, supplier, or distributor to illustrate some portion of the Work. Shop Drawings and other submittals from the Contractor to the A-E shall be transmitted through the Owner’s Document Collaboration System. Unless other requirements are indicated in the Special Conditions for this project or unless otherwise permitted by the A-E in writing, all shop drawings required by the Contract Documents shall to be submitted to the A-E for review and acceptance within the time indicated below:

‘1.26.1 For Projects of less than 180 calendar day duration: thirty (30) calendar days of the Date of Commencement.

‘1.26.2 For Projects of more than 181 calendar days and less than 360 calendar days duration: less than sixty (60) calendar days of the Date of Commencement.

‘1.26.3 For Projects of more than 361 calendar days duration: less than ninety (90) calendar days of the Date of Commencement.

‘1.26.4 In circumstances where a specific shop drawing required by the Contract Documents cannot reasonably be submitted to the A-E for review and acceptance, the Contractor shall notify the A-E in writing within the time periods indicated above for submission, and if the A-E finds it reasonable to waive this submission time period requirement, the A-E may do so in writing.

‘1.26.5 In circumstances where a specific shop drawing required by the Contract Documents cannot be reasonably reviewed by the A-E within the time prescribed elsewhere in the Contract Documents, the A-E shall notify the Contractor in writing prior to the date required for the review of the reasons for the time needed for reviewing the Shop Drawing.

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‘1.27 Specifications are the descriptive and written portions of the Contract Documents, wherever located and whenever issued, that describe the quality and performance of building materials and systems, using code citations and published standards. The drawings and specifications are complementary, together providing the information required for a complete facility. However, the specifications overrule the drawings where there is a conflict or contradiction. However, the Contractor shall inquire of the A-E for a determination of the resolution of the conflict or contradiction.

‘1.28 Subcontractor means the person or entity having a direct contract with the Contractor for the performance of a part of the Work. The Owner has no direct contractual relationship with the subcontractor.

‘1.29 Substantial Completion is the point at which, as certified in writing by the A-E and accepted by the Owner that the Project is: 1) at a level of completion in strict compliance with the Contract (see article ‘19.4 for a complete listing of requirements for compliance); 2) all necessary approvals by public authorities has been given; and, 3) that the Owner or the Agency can enjoy beneficial use or occupancy and can use, operate and maintain (the Owner has received all required warranties and documentation) it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete and such partial use or occupancy shall not be evidence of Substantial Completion.

‘1.29.1 Substantial Completion Date shall have the meaning as described to it in Article 19.

‘1.30 Warranty, General. The Contractor shall warrant all equipment, materials, products, and workmanship provided by the Contractor under these Contract Documents for a period of twelve

(12) months after the Date of Final Completion. This period of time is called the One-Year Warranty Period and is further defined in Article 9.2.

‘1.31 The Work includes the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, supervision, materials, equipment, services, and things provided or to be provided by the Contractor to fulfill the Contractor’s obligations.

‘2. Intent and Interpretation

The A-E shall be the authority of the Contract Documents as to their intent or interpretation, except as defined below and/or as provided in paragraph 3.4.

‘2.1 Anything that may be required, implied or inferred by the documents which make up the Contract, or any one or more of them, shall be provided by the Contractor for the Contract Sum;

‘2.2 Nothing contained in the Contract Documents shall create, nor be interpreted to create, privity or any other relationship whatsoever between the Owner and any person except the Contractor;

‘2.3 When a word, term, or phrase is used in the Contract…