dgs-30-018_07-22_co-3a.pdf

DGS-30-018 CO-3a 07/22

COMMONWEALTH OF VIRGINIA

TERMS AND CONDITIONS OF THE A/E CONTRACT

TABLE OF CONTENTS

1. DEFINITIONS

2. LICENSE AND REGISTRATION

3. A/E OF RECORD

4. PROFESSIONAL SERVICES

5. TAXPAYER IDENTIFICATION NUMBER

6. DEBARMENT STATUS

7. IMMIGRATION REFORM AND CONTROL ACT OF 1986

8. RELATIONSHIP OF ARCHITECT/ENGINEER TO OWNER

9. ARCHITECT/ENGINEER’S MANUAL (A/E MANUAL)

10. “DESIGN-NOT-TO-EXCEED” BUDGET AS RELATED TO A/E CONTRACT

11. CODE AND REGULATORY COMPLIANCE

12. A/E PROFESSIONAL LIABILITY INSURANCE

13. DESIGN ERRORS AND/OR OMISSIONS

14. OTHER INSURANCE REQUIRED OF THE A/E

15. RECORDS RETENTION

16. OWNERSHIP OF DOCUMENTS AND MATERIALS

17. STANDARD/PROTOTYPE PLANS

18. REQUIREMENTS FOR A/E SEALS AND SIGNATURES

19. SUBCONTRACTS

20. MODIFICATION OF THE A/E CONTRACT (A/E CHANGE ORDERS)

21. PAYMENTS TO THE ARCHITECT/ENGINEER

22. PAYMENTS BY ARCHITECT/ENGINEER

23. AUDIT

24. CONFLICTS OF INTEREST

25. RELEASE OF INFORMATION PERTAINING TO PROJECT DESIGN

26. DEFAULT

27. TERMINATION OF CONTRACT BY THE OWNER/AGENCY

28. ASSIGNMENT OF CONTRACT

29. ANTITRUST

30. ETHICS IN PUBLIC CONTRACTING

31. NONDISCRIMINATION

32. CONTRACTUAL DISPUTES

33. INFORMAL ALTERNATIVE DISPUTE RESOLUTION

34. APPLICABLE LAW AND COURTS

35. PROHIBITION OF ALCOHOL AND OTHER DRUGS AT WORKPLACE

36. DESIGN OF SECURITY SYSTEMS

37. USE OF STANDARD FORMS AND FORMATS

38. PARTICIPATION OF SMALL BUSINESSES

39. RESPONSIBILITIES OF THE OWNER TO THE A/E

40. QUALITY OF WORK

41. STANDARDS FOR A/E SERVICES

42. A/E BASIC SERVICES

43. WORK NOT INCLUDED IN THE SCOPE OF A/E BASIC SERVICES

44. IDENTIFICATION OF DOCUMENTS AND MATERIALS

45. CONFLICTS; ORDER OF PRECEDENCE

PLEASE NOTE: The Terms and Conditions of the A/E Contract (CO-3a) (“Terms and Conditions”), have been created specifically for the use of agencies of the Commonwealth of Virginia, which may not alter any provisions without the express written approval of the Virginia Department of General Services, Division of Engineering and Buildings. The Terms and Conditions have significant legal implications and shall not be altered or modified. The Terms and Conditions shall not be amended or deleted or its intent changed, except by an approved and properly issued Supplemental General Conditions. The Commonwealth of Virginia makes no representation as to their suitability for any other purpose. Note: Governmental entities not subject to DGS purview intending to modify the Terms and Conditions for their use should consult with their legal counsel.

1. DEFINITIONS

Whenever used in these Terms and Conditions of the A/E Contract (“Terms and Conditions”) the following terms have the meanings indicated, which are applicable to both the singular and plural and the male and female gender thereof:

AARB: Commonwealth of Virginia’s Art and Architectural Review Board

ADA: The Americans with Disabilities Act of 1990.

ADAAG: Americans with Disabilities Act Architectural Guidelines.

Addendum: Written or graphic instruments issued prior to the opening of bids or proposals that clarify, correct or change the IFB or RFP.

Advertisement: The term commonly used to describe the public announcement or “Notice” of the availability of the IFB or RFP made by publishing a notice in eVA, and by providing public notice pursuant to the Virginia Public Procurement Act (Code of Virginia, § 2.2-4300, et seq.).

A/E Contract: The Contract between Owner and A/E for Professional Services (CO-3, CO-3.1, or CO-3.2) and any documents expressly incorporated therein, including but not limited to: the Terms and Conditions of the A/E Contract (CO-3a); Supplemental General Conditions; the A/E Manual; the MOU; all addenda;

and all modifications, including subsequent A/E Change Orders.

A/E Change Order: A document (CO-11ae) issued on or after the effective date of the A/E Contract which is agreed to by the A/E and approved by the Owner, and which authorizes an addition, deletion or revision in the A/E Services, including any adjustment in the Total Contract Amount, Contract Price and/or the Contract Completion Date. An A/E Change Order, once signed by all parties, is incorporated into and becomes a part of the A/E Contract.

A/E Manual: The A/E Manual shall consist of the following Chapters and Sections of the CPSM: Chapters 1, 2, 3, 6, 7; and Sections 4.0 through 4.20 (excluding 4.19), Sections 5.0 through 5.17, ; and Appendices A thru through Z, including all revisions thereto. The A/E Manual and all revisions shall be incorporated into the A/E Contract in their entirety except as amended or superseded in the A/E Contract or an addendum thereto.

A/E of Record: An individual person named by the A/E to oversee, coordinate, review and be the professional responsible for the aggregate collection of A/E Services and the Construction Documents.

A/E Project Manager: The A/E Project Manager as used herein shall be the A/E’s designated representative for the Project. The A/E Project Manager shall be the person through whom the A/E generally conveys written decisions and notices. The A/E may change the A/E Project Manager from time to time and may, in the event that the A/E Project Manager is absent, disabled or otherwise temporarily unable to fulfill his duties, appoint an interim A/E Project Manager.

A/E Services: The entirety of the services that the A/E performs that constitute the scope of services for the A/E under the A/E Contract, including the Basic Services (Section 42 below), Additional Services, and any Extra Services.

Additional Services: Services required by the A/E Contract to be performed by the A/E that are in addition to those services required under Section 42 for “A/E Basic Services.”

Agency: The agency, institution, or department which is a party to the A/E Contract. For purposes of the Contract, the term Owner shall include such Agency, whether or not the Agency owns the Site or the building.

Agency Contracting Officer: The person designated in writing by the Agency as being delegated authority to award and sign contracts, change orders, and other documents related to capital outlay projects for the Agency (may also be called the Chief Facilities Officer).

Agency Manual: The Agency Manual shall consist of the following Chapters and Sections of the CPSM:

Chapters 1 through 8, Appendices A through Z, and all revisions thereto.

APELSCIDLA Board: Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects.

Architect: A person who is qualified and licensed to practice architecture in Virginia by the APELSCIDLA Board. “Architect” may also be used to refer to a firm of such individuals which is properly licensed in the Commonwealth of Virginia.

Architect/Engineer (“A/E”): The Virginia licensed Architect or Engineer that contracts with the Owner to provide the A/E Services for the Project. The A/E is a separate contractor and not an agent of the Owner.

The term includes any subcontractors, associates or consultants employed by the A/E to assist in providing the A/E Services.

ASAD: ADA Standards for Accessible Design, current edition.

Association: As applied to architects or engineers, this term shall mean a legal entity formed by several architects and/or engineers who have associated together for the purposes of working as a unit on a specific Project. The Association may take the form of a partnership, joint venture, corporation, etc.

Beneficial Occupancy: The time, following Substantial Completion, at which the Project or portion thereof, is sufficiently complete and systems operational such that the Owner could, after obtaining necessary approvals and certificates, occupy and utilize the space for its intended use. Guarantees and warranties applicable to that portion of the Work begin on the date the Owner accepts and occupies the Project, or a portion thereof, unless otherwise specified in the Supplemental General Conditions or by separate agreement.

Bid: The offer provided by a bidder submitted on the prescribed form and setting forth the bidder’s price(s) for the Work to be performed.

Bid Documents: Another term for the Invitation for Bids (“IFB”), defined below.

BIM Model: The documents and electronic information produced by the building information modeling (“BIM”) process.

Building Official: The Building Official for all buildings on Commonwealth of Virginia property excluding non-occupiable buildings, bridges and structures in the VDOT right-of-way and who is the Director of the Division of Engineering and Buildings, Department of General Services. The Building Official’s duties, responsibilities and authority generally conform to those described in the Uniform Statewide Building Code (Code of Virginia, § 36-98.1).

Chief Facilities Officer: Another term for Agency Contracting Officer, defined above.

Code of Virginia: Code of Virginia 1950, as amended. Sections of the Code referred to herein are noted by (§ xx-xx).

Competitive Negotiations: A method of contractor selection that includes the following elements (Code of Virginia, § 2.2-4302.2):

• Issuance of a written RFP indicating in general terms that which is sought to be procured, specifying the factors which will be used in evaluating the proposal and containing or incorporating by reference the other applicable contractual terms and conditions, including any unique capabilities or qualifications which will be required of the Contractor.

• Public notice of the RFP at least ten (10) days prior to the date set for receipt of the proposal by posting in a public area normally used for posting of public notices and by publication on the eVA web site.

Competitive Sealed Bidding: A method of contractor selection that includes the following elements (Code of Virginia, § 2.2-4302.1):

• Issuance of a written IFB containing or incorporating, by reference, the specifications and contractual terms and conditions applicable to the procurement.

• Public notice of the IFB at least ten (10) days prior to the date set for receipt of bids by posting in a designated public area and by publication of the public announcement or “Notice” of the availability of the IFB (i.e. Bid Documents) on the eVA web site www.eva.virginia.gov. Bids may be solicited solely from contractors who have prequalified. (Code of Virginia, § 2.2-4317). In addition, bids may be solicited directly from potential contractors. Any additional solicitations shall include businesses selected from a list made available by the DSBSD.

• Public opening and announcement of all bids received.

• Evaluation of bids based upon the requirements set forth in the invitation.

• Award to the lowest responsive and responsible bidder.

• Competitive sealed bidding shall not be used for procurement of Professional Services.

Construction: Includes new construction, reconstruction, renovation, restoration, major repair, demolition, and all similar work upon buildings and ancillary facilities owned or to be acquired by the Commonwealth of Virginia, including any draining, dredging, excavation, grading, or similar work upon real property.

Construction Administration: Non-professional services provided under a contract with the Owner which generally includes inspection of the Work, coordinating testing services contracts procured by the Owner, reviewing change orders and schedule submittals from the Contractor, and providing other construction period services for the benefit of the Owner.

Construction Administrator (“CA”): The CA is the entity responsible to the Owner for providing these services to assure compliance with the Contract Documents but is not responsible under the Construction Contract for providing the Work. The Owner may use an employee to perform Construction Administration services. This differs from the Contract Administration services required under the A/E Contract, defined below.

Construction Contract: The Contract between Owner and Contractor (CO-9), signed by the Owner, for the Work of the Project and all documents expressly incorporated therein. Also known as the Contract Documents, defined below.

Construction Change Order: A document (CO-11) issued on or after the effective date of the Construction Contract which is agreed to by the A/E and approved by the Owner, and which authorizes an addition, deletion or revision in the Work, including any adjustment in the Total Contract Amount, Contract Price and/or the Contract Completion Date. A Construction Change Order, once signed by all parties, is incorporated into and becomes a part of the Construction Contract.

Construction Documents: Written, graphic and pictorial documents prepared or assembled for describing the design, location and physical characteristics of the elements of a Project necessary for construction and for obtaining a building permit. See Working Drawings, defined below.

Construction Management: Services provided under contract with the Owner, which generally include coordinating and administering construction contracts for the benefit of the Owner, but may also include, if provided in the Construction Contract, furnishing construction services to the Owner. See CPSM, Section

7.2 for further descriptions.

Construction Manager (“CM”): The CM has direct responsibility and liability to the Owner for performing the Work as described by the Contract Documents. Also called the CM at Risk, or the Contractor for the Project.

Consultant: An individual or firm with professional expertise engaged to render a specific service in connection with a Project.

Contract Administration: The duties and responsibilities normally performed by the A/E during the construction phase of a Project. This differs from Construction Administration services, defined above.

Contract Completion Date: The date by which the Work must be substantially complete. The Contract Completion Date is customarily established in the Notice To Proceed, based on the Time for Completion. In some instances, however, the Contract contains a mandatory Contract Completion Date, which shall be stated in the Invitation for Bids.

Contract Documents: The Contract between Owner and Contractor (CO-9) signed by the Owner and the Contractor and any documents expressly incorporated therein. In the event of a conflict between or among the Contract Documents, the precedence of the Contract Documents shall be in the following order: the Contract; the Supplemental General Conditions; the General Conditions; the Special Conditions; the Specifications; and the Plans.

Contractor: The person with whom the Owner has entered into a Contract between Owner and Contractor to do the Work.

Contract Price: The total compensation payable to the Contractor for performing the Work in accordance with the Contract Documents, subject to modification by Change Order.

CM At Risk: Another term for Construction Manager, defined above.

CPSM: The most current edition of DEB’s Construction and Professional Services Manual (“CPSM”), as amended and revised from time to time.

Day(s): Calendar day(s) unless otherwise noted.

DEB: Division of Engineering and Buildings, a division of the Commonwealth of Virginia Department of General Services.

Defective: An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, deficient, does not conform to the Contract Documents or does not meet the requirements of inspections, standards, tests or approvals required by the Contract Documents, or Work that has been damaged prior to the A/E’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion or Beneficial Occupancy).

DEQ: Commonwealth of Virginia Department of Environmental Quality.

Design-Build (“DB”): A contract between a public body and a design-build Contractor in which the Contractor agrees to both design and build the structure, roadway or other item specified in the Contract between Owner and Contractor. See CPSM, Section 7.3 for further descriptions.

“Design-not-to-exceed” Budget: The Project construction budget established in the A/E Contract as the maximum cost for the construction of the Project for which the A/E is engaged to provide A/E Services.

DGS: Commonwealth of Virginia Department of General Services.

DHR: Commonwealth of Virginia Department of Historic Resources.

DPOR: Commonwealth of Virginia Department of Professional and Occupational Regulation.

DSBSD: Commonwealth of Virginia Department of Small Business and Supplier Diversity.

Drawing: A page or sheet of the Plans which presents a graphic representation, usually drawn to scale, showing the technical information, design, location, and dimensions of various elements of the Work. The graphic representations include, but are not limited to, plan views, elevations, transverse and longitudinal sections, large and small scale sections and details, isometrics, diagrams, schedules, tables and/or pictures.

Emergency: Any unforeseen situation, combination of circumstances, or a resulting state that poses imminent danger to health, life or property.

Engineer: A person who is qualified and licensed to practice engineering in Virginia as a Professional Engineer by the APELSCIDLA Board of the DPOR. “Engineer” may also be used to refer to a firm of such individuals which is properly licensed in the Commonwealth of Virginia.

Equal: Any other brand, make or manufacturer of a product, assembly or equipment that, in the opinion of the A/E, is equivalent to that specified, considering quality, capabilities, workmanship, configuration, economy of operation, useful life, compatibility with design of the Work and suitability for the intended purpose, and which is accepted as such by the Owner.

Equipment: A tangible resource, such as machinery, articles or apparatus, of a permanent or long-term nature, used in an operation or activity.

eVA: DGS’ central electronic procurement system used in the Commonwealth of Virginia. The eVA home page address is www.eva.virginia.gov.

Extra Service(s): A service which the Owner tasks the A/E to provide after the A/E Contract has been signed and which was not included in the Basic Services or in the Additional Services as described in the A/E Contract. Extra Services, and the compensation therefore, are authorized by a modification to the A/E Contract using an A/E Change Order (CO-11 ae).

Field Order: A written order issued by the A/E which clarifies or explains the Plans or Specifications, or any portion or detail thereof, without changing the design, the Contract Price, the Time for Completion or the Contract Completion Date.

Final Completion: Completion and full performance of all Work in accordance with the terms and requirements of the Contract Documents, including the completion of all items identified on punch lists generated through the inspections set forth in Section 44(b) and submission of all information, manuals, warranties and documentation required by the Contract.

Final Completion Date: The date of the Owner’s acceptance of the Work following Final Completion.

Final Construction Documents: The set of plans from which the project is built, are prepared by the A/E for use in (1) obtaining the necessary permits and (2) completing the Work. Final Construction Documents are completed documents ready for bidding and include all corrections required by the DEB review. Each sheet of the drawings reproduced in the bid documents shall bear the seal and dated signature of the responsible licensed professional and a uniform document date.

Final Construction Documents Addendum: The first sheet of each and every addendum issued to bidders shall indicate the number of pages in the addendum and shall list any attached sketches, drawings or other material included in the addendum.

General Conditions: The General Conditions of the Construction Contract (CO-7).

Governor: The Governor of the Commonwealth of Virginia.

Informality: A minor defect or variation of a bid or proposal from the exact requirements of the Invitation for Bids or Request for Proposals that does not affect the price, quality, quantity or delivery schedule for the goods, services or construction being procured, as established by Code of Virginia, § 2.2- 4301.

Invitation for Bids (“IFB”): A formal solicitation to the public including the Notice, Instructions To Bidders, Bid Form, General Conditions of the Construction Contract (CO-7), Supplemental General Conditions, Special Conditions, Forms to be used, the Plans and Specifications, and any other documents listed in the Specifications, all of which request qualified bidders to submit competitive prices or bids for providing the described Work on a Project. The IFB is the “Invitation for Bid” required by Code of Virginia, § 2.2-4302.1.

Instruments of Service: All materials and documentation including the original drawings, the Plans and Specifications (including electronic files), and copies of any calculations and analyses prepared pursuant to the Contract between the Owner and the A/E

Landscape Architect: An individual licensed by the Commonwealth of Virginia as a “Landscape Architect” by the APELSCIDLA Board of the DPOR. The Landscape Architect may function as an A/E Project Manager and may be the A/E of Record on those Projects where the preponderance of the work is represented by the application of the principles and methodology of landscape architecture in consultation, evaluation, planning (including the preparation and filing of sketches, drawings, plans and specifications) and responsible supervision or administration of contracts relative to Projects principally directed at the functional and aesthetic use of land.

LEED: Leadership in Energy and Environmental Design.

Manual: The CPSM.

Micro Business: A business certified as a Micro Business by the DSBSD.

Minority-Owned Business: A business certified as a Minority-owned business by the DSBSD.

MOU: A Memorandum of Understanding between the Owner and A/E.

NFPA: National Fire Protection Association.

Nonprofessional Services: Any services not specifically identified as “professional services” in the definition of “professional services” provided by Code of Virginia, § 2.2-4301.

Notice: All written notices required or permitted under the A/E Contract or Contract Documents. Notice shall be given in writing to the email address or physical delivery location identified in the A/E Contract or Contract Documents for receipt of Notice by the receiving party. A Notice is deemed to have been properly given and effective at the time such Notice is (i) deposited with a nationally recognized overnight delivery service using no more than two (2) business day delivery service for delivery to the Notice address; (ii) hand delivered to the Notice address; (iii) enclosed in a postage prepaid envelope addressed to the Notice address and delivered to a United States Postal Service for delivery by prepaid certified or registered mail; or (iv) sent via email to the email address identified for Notice in the A/E Contract or Contract Documents.

Notice of Award: The written notification by Owner to the apparent successful bidder notifying the bidder that it has been awarded the contract, pending the submittal and execution of all documents required in the

IFB.

Notice of Intent to Award: The written public posting by Owner announcing the apparent successful bidder and notifying the bidder and all other bidders that the Owner intents to award the contract to the apparent successful bidder pending completion of the verification that it is a Responsible Bidder and the receipt and acceptance of all executed documents required in the IFB.

Notice to Proceed: A written Notice given by the Owner to the Contractor fixing the date on which the Time for Completion will commence for the Contractor to begin the execution of the Work. The Notice to Proceed will identify the Contract Completion Date if not otherwise established by the Contract.

Owner: The public body with whom the Contractor and A/E have entered into contractual agreements and for whom the Work and A/E Services are to be provided. The term “Owner,” as used herein, shall also mean the Agency.

Owner’s Project Manager: Shall be the Owner’s designated representative for the Project. The scope of the Owner’s Project Manager’s authority is limited to that authorized by the Owner, who shall provide written information to the Contractor at the preconstruction meeting defining those limits. This authorization by the Owner or Owner’s Project Manager authority shall not impinge upon or supersede the professional responsibility and liability of the A/E.

Performance Specification: A specification which generally describes the characteristics of the article required, e.g. the style, type, quality, character, economy of operation and purpose to be served by the article and the results required of the article provided. It does not restrict bidders to a specific brand, make, or manufacturer, nor does it tell the A/E or Contractor how to achieve the required result.

Person: This term includes any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.

Plan Holder: A Person that has received Plans from the A/E.

Plans: The term used to describe the group or set of Project-specific drawings which are included in the Contract Documents.

Pre-bid Conference: A meeting of interested, prospective bidders held at the Owner’s discretion, usually with the assistance of the A/E, prior to the receipt of bids in which comments or questions concerning specifications or other provisions in the IFB or RFP can be received and considered (Code of Virginia, § 2.2- 4316). Any response shall be in writing and distributed to all who requested and received the IFB and RFP.

Prequalification of Bidders: The process by which the qualifications and credentials of potential bidders may be evaluated for particular types of services or construction in accordance with criteria established in writing and sufficiently in advance of their implementation to allow interested persons or firms a fair opportunity to complete the process (Code of Virginia, § 2.2-4317).

Professional Services: As defined in Code of Virginia, § 2.2-4301, work performed by an independent contractor within the scope of the practice of accounting, actuarial services, architecture, land surveying, landscape architecture, law, dentistry, medicine, optometry, pharmacy or professional engineering.

“Professional Services” shall also include the services of an economist procured by the State Corporation Commission.

Project: The term used instead of the specific or proper assigned title of the entire undertaking which includes, but is not limited to, the Work and the A/E Services.

Project Inspector: One or more persons employed by the Owner to inspect the Work for the Owner and/or to document and maintain records of activities at the Site to the extent required by the Owner. The scope of the Project Inspector’s authority with respect to the Contractor is limited to that indicated in Section 16 (e) and (f) of the General Conditions and as supplemented by the Owner in writing to the Project Inspector and to the Contractor.

Project Order: A specific commission that is issued to the A/E with a CO-3.1a in accordance with the MOU incorporated into the A/E Contract (for use only with the Term Contract Between Owner and Architect/Engineer for Professional Services (CO-3.1)).

Proprietary: An adjective used to describe a product or piece of equipment which is manufactured under some exclusive right but which is available to Subcontractors from multiple vendors or Suppliers; (e.g. a product or piece of equipment which is specified by a single brand name and model number and which is available to bidders from more than one source, but for which no “Equal” is permitted).

Provide: Shall mean furnish and install ready for its intended use.

Record Drawings: Record Drawings are a final compilation set of drawings showing the “as built” condition of the Work, including all conditions, locations and dimensions based on the Contractor’s As- Built Drawings. The Record Drawings shall contain the Plans, Specification, Addenda, approved shop drawings, and any other information needed to show the final condition of the work, actual location of piping and utilities, the depths of pilings or caissons if pilings or caissons were in the construction, and the integration of all Change Orders to the Work. Record Drawings shall be provided to the Owner in electronic PDF format, in addition to any other physical format required by the Owner.

Responsible Bidder: A bidder who has the capability, in all respects, to perform fully the Contract requirements and the moral and business integrity and reliability that will assure good faith performance, and who has been prequalified, if required (Code of Virginia, § 2.2-4301).

Responsive Bidder: A person or firm who has submitted a bid which conforms in all material respects to the Invitation for Bid (Code of Virginia, § 2.2-4301).

Reviewing Agency: Any agency from which an approval is required per the Code of Virginia or other policy or procedure in effect.

RFP: Request for Proposal.

RFQ: Request for Qualifications.

Sealed Bid: A bid which has been submitted in a sealed envelope or electronically submitted into eVA utilizing the eVA Secure Vendor Portal to prevent its contents from being revealed or known before the deadline for the submission and opening of all bids.

Service Disabled Veteran-Owned Business: A business that meets the definition of Service disabled veteran business set forth in Code of Virginia, § 2.2-4310.

Services: Any work performed by an independent contractor wherein the service rendered does not consist primarily of acquisition of equipment or materials, or the rental of equipment, materials, or supplies (Code of Virginia, § 2.2-4301).

Shop Drawings: The drawings, diagrams, illustrations, schedules, installation descriptions and other data prepared by or for the Contractor to provide detailed information for the fabrication, location, erection, installation, connection and methodology associated with the Work. Shop drawings are intended to aid in the preparation and installation of materials and to ascertain that the materials proposed by the Contractor conform to the requirements of the Contract Documents.

Site: Shall mean the location at which the Work is performed or is to be performed.

Small Business: A business certified as a small business by the DSBSD.

Sole Source: A product, item of equipment, service or combination of these which is available from only one manufacturer, vendor or provider in an area to the exclusion of others (e.g. within the constraints of the particular Project, whether geographic, time, material or other). If products, equipment or services are franchised to only one vendor in an area, the vendor would be considered a Sole Source for such products, equipment or services specified for this Project.

Special Conditions: That part of the Contract Documents which describes special or additional requirements or procedures applicable to the Project. The Special Conditions do not amend or supersede the General Conditions of the Construction Contract (CO-7).

Specifications: That part of the Contract Documents containing the written administrative requirements and the technical descriptions of materials, equipment, construction systems, standards, and workmanship for the Work.

Subcontractor: A person or firm having a direct contract with the Contractor or with any other Subcontractor for the performance of the Work, or who has a direct contract with the A/E for professional services for the Project. Subcontractor includes any person or firm who provides on-site labor but does not include a Supplier.

Submittals: All shop, fabrication, setting and installation drawings, diagrams, illustrations, schedules, samples, and other data required by the Contract Documents which are specifically prepared by or for the Contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and submitted by the Contractor to illustrate material or equipment conformance of some portion of the Work with the requirements of the Contract Documents.

Substantial Completion: The condition when the Owner agrees that the Work, or a specific portion thereof, is sufficiently complete, in accordance with the Contract Documents, so that it can be utilized by the Owner for the purposes for which it was intended. The Owner at its sole discretion may, after obtaining the necessary approvals and certificates, take Beneficial Occupancy at this time or choose to wait to occupy until after Final Completion is achieved.

Substitute: A material, product, equipment, or assembly that deviates from the requirements of the Contract Documents but which the Contractor deems will perform the same function and have equal capabilities, service life, economy of operation, and suitability for the intended purpose. The proposal must include any cost differentials proposed. Any such proposed substitute must be submitted to the A/E for review and, if acceptable to the A/E and the Owner, incorporated into the Construction Contract by Change Order.

Supplemental General Conditions: An amendment or modification which amends or supplements the General Conditions of the Construction Contract (CO-7) or the Terms and Conditions of the A/E Contract (CO-3a).

Supplier: A manufacturer, fabricator, distributor, material provider or vendor who provides material for the Project but does not provide on-site labor.

SWaM/SDV Business: All subcategories of Small Businesses including Micro Business, Minority-Owned Business, Service Disabled Veteran-Owned Business, Small Business, and/or Women-Owned Business together as a group.

Time for Completion: The number of consecutive Days following the Date of Commencement within which the Contractor must achieve Substantial Completion of the Work in accordance with the Contract Documents.

Total Contract Amount: The total compensation payable to the A/E for performing the A/E Services, subject to modification by Change Order.

Unit Price Work: Work to be paid for on the basis of established unit prices for the quantity of material provided or Work done.

USBC: Another term for Virginia Uniform Statewide Building Code, defined below.

VDOT: Commonwealth of Virginia Department of Transportation.

VPPA: Virginia Public Procurement Act, Code of Virginia, § 2.2-4300 – 2.2-4383, as amended.

VUSBC: Virginia Uniform Statewide Building Code (also referred to as the USBC).

Women-Owned Business: A business certified as women-owned by the DSBSD.

Work: The construction and services required by the Contract Documents, whether completed or partially completed, including, but not limited to, furnishing labor, furnishing and incorporating materials and equipment into the Construction. The Work includes the entire completed Construction, or the various separately identifiable parts thereof, required to be provided under the Contract Documents or which may reasonably be expected to be provided as part of a complete, code compliant and functioning system for those systems depicted in the Plans and Specifications.

Working Drawings: Written, graphic and pictorial documents prepared or assembled for describing the design, location and physical characteristics of the elements of a Project necessary for obtaining a building permit. See Construction Documents, defined above.

2. LICENSE AND REGISTRATION

Persons providing architectural and/or engineering services shall be properly registered and licensed in Virginia as required by DPOR through the APELSCIDLA Board, and, if incorporated, the State Corporation Commission. Professional corporations shall obtain a Certificate of Authority as required by Code of Virginia, § 13.1-549. Other business entities shall register with DPOR as required by Code of Virginia, § 54.1-411, as amended.

The individual Architect or Engineer responsible for the control and supervision of each discipline shall be at all times licensed in the Commonwealth of Virginia and shall affix his or her seal to those documents for which he or she is responsible.

3. A/E OF RECORD

The A/E shall designate an A/E of Record on behalf of the A/E .

4. PROFESSIONAL SERVICES

The architectural, civil, structural, mechanical, and electrical portions of the Project shall be planned and designed by, or under the immediate supervision of, a licensed Architect or Engineer who has expertise in the particular discipline involved. Where the A/E chooses to subcontract a portion of the architectural, civil, structural, mechanical and electrical portions of the A/E Services, the A/E shall retain only entities which employ architects or engineers with the requisite expertise to provide the required services. The Subcontractors proposed by the A/E during the selection process to be part of the A/E Project team shall perform the A/E Services as proposed.

If circumstances require a change of personnel from the originally proposed Project team, the A/E shall advise the Owner of the proposed change, the reasons for the change, and the name and qualifications of the proposed replacements. The replacements must be acceptable to the Owner.

Any associates, Consultants, or Subcontractors proposed to be part of the A/E’s Project team shall be contracted by the A/E at the beginning of the A/E Services and shall be active participants in all phases of the A/E Services related to their discipline from beginning to end. The A/E shall be responsible to the Owner for A/E Services provided by its Consultants and Subcontractors, whether employees of the A/E or not, performed for the A/E Contract.

5. TAXPAYER IDENTIFICATION NUMBER

The A/E shall furnish to the Owner its Federal Employer Identification Number (“FEIN”) if a proprietorship, corporation or a partnership, or it’s Social Security Number (“SSN”) if an individual at the time of A/E Contract award.

6. DEBARMENT STATUS

By entering into this Contract, the A/E certifies that it is not currently debarred or enjoined by the Commonwealth of Virginia from submitting bids or proposals on contracts for the type of goods and/or services covered by this A/E Contract, nor is it an agent of any Person that is currently so debarred or enjoined.

7. IMMIGRATION REFORM AND CONTROL ACT OF 1986

By entering into this Contract, the A/E certifies that it does not and shall not during the performance of this Contract knowingly employ an unauthorized alien as defined in the Federal Immigration Reform and Control Act of 1986, or otherwise violate its provisions.

If the A/E has an average of more than fifty (50) employees in the twelve (12) months preceding this A/E Contract, and the Total Contract Amount is in excess of $50,000 then the A/E shall, during the performance of this A/E Contract, be registered and participate in the federal E-Verify program for employers as defined by Code of Virginia, § 2.2-4308.2.

8. RELATIONSHIP OF ARCHITECT/ENGINEER TO OWNER

After the A/E Contract has been fully executed, the A/E shall be the professional advisor and consultant to the Owner for technical matters related to the Project and shall be responsible directly to and only to the Owner. The Owner shall communicate all approvals, rejections, change requirements and other similar information to the A/E. The A/E shall advise the Owner of changes necessary to keep the Project within the prescribed area and cost limits. The A/E’s status, relationship and authority during the construction phase of the Project are further defined in the General Conditions, Section 15, (a) through (h), and are included herein by reference.

Generally, the Owner will observe the procedure of issuing orders to the Contractor through the A/E or, if the A/E’s construction period duties have been so modified, through the Owner’s Project Manager. If the Owner issues orders directly to the Contractor, the A/E shall be copied on such orders.

9. ARCHITECT/ENGINEER’S MANUAL (A/E MANUAL)

The most current A/E Manual is incorporated into the A/E Contract in its entirety except as expressly amended or superseded by the requirements of the A/E Contract or an addendum thereto.

For the sake of simplicity, the provisions of the A/E Manual dealing with Architects and Engineers are written as though they apply to the design of buildings and to Construction Administration only. They also shall apply, however, to all architectural and engineering services of every kind including, but not limited to, project studies, development of master site plans, other studies, and related professional services.

Many of the changes, additions, or deletions made in revisions to the A/E Manual are necessary to keep abreast with codes, statutes, or regulations related to the Project. They require immediate compliance by the A/E.

If the A/E determines that Extra Services will be needed to incorporate the requirements of the latest edition of the CPSM or any A/E Manual revision issued after the date of the A/E Contract, the A/E shall notify the

Owner of same within sixty (60) days of the date of revision distribution, and shall provide an itemized list of the Extra Services required.

After consultation with DEB, the Owner shall provide direction to the A/E regarding the effort necessary to incorporate the requirements of the revision. If appropriate, the Owner shall issue a Change Order to the A/E Contract for the Extra Services, as described in Section 20. Generally, revisions issued prior to the date of approval of the preliminary submittal can be incorporated with minimal, if any, Extra Services.

If the A/E fails to notify the Owner within sixty (60) days after the date of distribution of an A/E Manual revision that the revision will require Extra Services, the A/E waives the right to make claims for Extra Services provided to address the requirements of the revision.

10. “DESIGN-NOT-TO-EXCEED” BUDGET AS RELATED TO A/E CONTRACT

The Owner shall provide the A/E with a description of the Project including information on functions, space requirements, special features and requirements, aesthetic requirements, authorized square footage and “Design-not-to-exceed” Budget. If the low bid for the Work exceeds the “Design-not-to-exceed” Budget by ten percent (10%) or more, all revisions to the Plans and Specifications required to bring the cost of the Project within the “Design-not-to-exceed” Budget shall be executed by the A/E at no additional cost to the Owner.

The A/E’s cost estimate shall be in the systems format described in CPSM Chapter 5 and Appendix E. The estimate shall be provided at a level of detail commensurate with the current design phase. The A/E shall submit a cost estimate with each phase submittal. If the cost estimate indicates a potential problem in securing a bid within the “Design-not-to-exceed” Budget, the A/E shall notify and work with the Owner to redefine the design concepts of space utilization, building efficiencies, materials of construction, etc., so that the estimated cost of construction does not exceed the “Design-not-to-exceed” Budget.

Substantial changes in the Project scope, such as those which affect the area (whether increase or decrease) or function of the proposed facility, must be justified by the A/E and shall be approved by the Owner and may require the approval of the Governor or his designee.

11. CODE AND REGULATORY COMPLIANCE

The A/E is responsible for designing the Project and administering the construction phase of the Project in accordance with the VUSBC, the A/E Manual, and other statutory and/or regulatory requirements applicable to the Project. Nothing contained herein shall be construed as relieving the A/E or any Subcontractor, Contractor, Supplier or any other participant from any professional or legal responsibility for performance.

Reviews, comments and approvals by DGS, DEB, Owner, or the staff of any Agency, in no way absolve any other Person involved in a Project from complying with his or her full responsibilities under the VUSBC and applicable laws, codes and professional regulations and standards. Lack of comment by DGS, DEB, or the Owner does not relieve the A/E from designing the Project to meet the VUSBC, other applicable codes, the A/E Manual requirements, and applicable state and local regulations related to water, sewer, fire department service, and other utilities.

If the correction is to comply with the requirements of the VUSBC, the A/E Manual, or to correct other statutory or regulatory violations and results in a Change Order to the Construction Contract during construction, any additional costs incurred by the Owner shall be paid by the party responsible for the violation or omission. The Owner shall bear only the costs attributable to the work as it should have been originally specified by the A/E as described in Section 13.

If the A/E believes that a VUSBC, A/E Manual requirement, or other statute or regulation is unclear as to meaning, the A/E shall request a written opinion as to the applicable interpretation from DEB or from the applicable regulatory agency, as appropriate. The A/E shall be entitled to rely on the written opinion, if any, which he receives in response.

12. A/E PROFESSIONAL LIABILITY INSURANCE

The A/E shall carry professional liability insurance covering acts, errors and omissions in the course of its professional services and the A/E Services. Prior to the start of any A/E Services, the A/E shall provide to the Owner Certificates of Insurance for review by the Owner. Upon request, the A/E also shall provide full copies of its insurance policies.

The A/E shall carry either “basic practice policy” or “project policy insurance” coverage. The minimum limits of liability coverage shall be the greater of either (a) an amount equal to five percent (5%) of the estimated “Design-not-to-exceed” Budget for all projects by the A/E for the Commonwealth currently under contract and where the Work has been completed within the past 5 years, per claim, and twice that amount, in the aggregate; or (b) $500,000 per claim and in the aggregate. The maximum amount of insurance required, regardless of the “Design-not-to-exceed” Budget shall be $5,000,000 per claim and $10,000,000 in the aggregate.

The A/E shall maintain insurance coverage for a period of not less than five (5) years after completion of Work under the Contract Documents.

All coverage shall be considered primary and non-contributory with respect to other insurance that might be available to the A/E, Owner, or Agency.

Professional Liability Insurance carried by Subcontractors or Consultants of the A/E shall not fulfill the requirements of this section.

The insurer shall waive rights of subrogation against the Owner and Agency for any claims covered by the insurance required herein.

Insurance shall not be canceled, dropped, replaced or materially changed without at least thirty (30) days’ prior written notice to and consent of the Owner.

13. DESIGN ERRORS AND/OR OMISSIONS

The Commonwealth of Virginia shall actively pursue reimbursement of damages resulting from the A/E’s errors, omissions or negligent performance of A/E Services, breaches of the A/E Contract, and failures by the A/E to comply with the applicable standard of care. Upon determination that there may be A/E financial responsibility, the A/E shall be contacted by the Owner in writing. The A/E shall be advised of the design deficiency or other breach or omission and informed that it is the Agency's opinion that the A/E may be financially responsible. The A/E shall provide a technical solution to the identified problem, including cost estimate. The A/E also shall coordinate with the Owner to determine required technical support and timing to minimize delays and costs resulting from the issue. Pending final decision by the Owner, the A/E will be invited to attend all price negotiations with the Contractor for the corrective work.

If the A/E refuses to cooperate in the negotiations or disputes its responsibility, the Owner shall have the right to proceed with the remedial and corrective action, including necessary revisions, construction and/or Change Order negotiations without the A/E.

All changes to the Contract Documents, whether to correct errors or omissions, to accommodate unforeseen or differing site conditions, or Owner requested changes, must be made and documented by Change Order, using CO-11 or CO-11ae, as applicable.

The A/E shall not be responsible for the actual cost to correct equipment or systems which should have been originally specified in the Contract Documents, but the A/E shall be responsible for any increased costs, whether the result of inflation, reordering, restocking or otherwise, of incorporating the corrected Work into a Construction Contract Change Order as a result of the A/E’s errors, omissions, negligence or breach.

For the purposes of determining the A/E’s share of such costs for Work which has not yet been performed, the cost of Work performed under a Construction Contract Change Order shall generally be presumed to be at least fifteen percent (15%) greater than if the work had been included in the original Contract Documents.

The A/E shall have the burden of disproving this presumption.

When determining the A/E’s contribution for Construction Contract Change Orders attributed to errors, omissions, breaches or negligent performance of the A/E Services, where the work has not yet been done by the Contractor, the Owner/Agency may also take into account the actions and efforts of the A/E during the construction phase that were above and beyond the scope of its contract to assist the Owner in obtaining a timely, quality product.

14. OTHER INSURANCE REQUIRED OF THE A/E

Prior to the start of any A/E Services, the A/E shall provide to the Owner Certificates of Insurance for review by the Owner. Upon request, the A/E also shall provide full copies of its insurance policies.