ESBD_File_350856_06-24554-standardconditions.pdf

UNIFORM GENERAL CONDITIONS

TEXAS DEPARTMENT of TRANSPORTATION

125 E. 11th Street Austin, Texas 78701

Support Services Division Facilities Planning & Management Section

6230 East Stassney Lane Austin, Texas 78744

Revision Date: 09/01/2022

Uniform General Conditions Introduction

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Table of Contents

2.1 Resolution of Conflicts in the Documents ------------------------------------- 13

3.1 Resolution of Conflicts in the Documents ------------------------------------- 16

ARTICLE 1 GENERAL DEFINITIONS 8

ARTICLE 2 PROCEDURES GOVERNING BIDDING

2.2 Examining Documents and Work Locations ---------------------------------- 13

2.3 Eligible Bidder --------------------------------------------------------------------------- 13

2.4 Preparing and Submitting the Bid ------------------------------------------------ 13

2.4.1 Proposal Form

2.4.2 Proposal Guaranty

2.4.3 Guaranty Check

2.4.4 Bid Bond

2.4.5 Addendum

2.4.6 HUB Subcontracting Plan

2.4.7 Department of Homeland Security (DHS) E-Verify Registration

2.4.8 Submittal of Bid

2.4.9 Revising the Proposal Form

2.4.10 Withdrawing a Bid

2.5 Opening and Reading of Bids ------------------------------------------------------- 14

2.5.1 Reading of Bids

2.5.2 Nonresponsive Bid

2.6 Consideration of Bid Errors -------------------------------------------------------- 14

2.6.1 Consideration

2.6.2 Evaluation

2.6.3 Acceptance

2.7 Tie Bids ------------------------------------------------------------------------------------ 15

2.8 Return of Proposal Guaranty ------------------------------------------------------- 15

2.8.1 Proposal Guaranty Check

2.8.2 Bid Bond

ARTICLE 3 AWARD AND EXECUTION OF CONTRACT

3.2 Award of Contract ---------------------------------------------------------------------- 16

3.2.1 Time

3.2.2 Reservations

3.2.3 Award

3.2.4 Rejection

3.3 Rescinding of Award ------------------------------------------------------------------ 16

3.3.1 Award Cancel

3.4 Execution of Contract ----------------------------------------------------------------- 16

3.4.1 Contract

3.4.2 Bonds

3.4.3 Insurance

3.4.4 Business Ownership Information

3.4.5 Certificate of Interested Parties (Form 1295)

3.5 Failure to Enter Contract ------------------------------------------------------------- 18

3.5.1 Proposal Guaranty

3.6 Return of Proposal Guaranty ------------------------------------------------------- 18

3.6.1 Guaranty Check

3.6.2 Bid Bond

3.7 Beginning of Work --------------------------------------------------------------------- 18

3.7.1 Written Authorization

3.8 Assignment of Contract -------------------------------------------------------------- 18

3.9 Excluded Parties ----------------------------------------------------------------------- 18

3.10 Notice of State Audit Authority ---------------------------------------------------- 18

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ARTICLE 4 LAWS GOVERNING CONSTRUCTION

4.1 Resolution of Conflicts in the Documents ------------------------------------- 19

4.2 Compliance with Laws ---------------------------------------------------------------- 19

4.2.1 Fees and Permits

4.2.2 Change in Laws

4.3 Environmental Laws ------------------------------------------------------------------- 19

4.3.1 Hazardous Materials

4.4 Wage Rates ------------------------------------------------------------------------------- 19

4.5 Records ------------------------------------------------------------------------------------ 19

4.6 Venue for Suits -------------------------------------------------------------------------- 19

4.7 Licensing of Trades ------------------------------------------------------------------- 19

4.7.1 Loss of License

4.8 State Sales and Use Taxes ---------------------------------------------------------- 20

ARTICLE 5 GENERAL RESPONSIBILITIES OF OWNER AND CONTRACTOR

5.1 Resolution of Conflicts in the Documents ------------------------------------- 21

5.2 Owner’s General Responsibilities ------------------------------------------------ 21

5.2.1 Preconstruction Conference

5.2.2 TxDOT Project Manager (PM)

5.2.3 TxDOT District Representative (DR)

5.2.4 TxDOT Supplied Materials and Information

5.2.5 Availability of Lands

5.2.6 Limitation on Owner’s Duties

5.2.7 Site Visits

5.2.8 Clarifications and Interpretations

5.3 Role of Architect / Engineer (A/E) ------------------------------------------------- 22

5.3.1 Site Visits

5.3.2 Clarifications and Interpretations

5.3.3 Limitations on Architect / Engineer Authority

5.4 Contractor’s General Responsibilities ------------------------------------------- 22

5.4.1 Beginning of Work

5.4.2 Services, Materials, and Equipment

5.4.3 Cooperation of Contractor

5.4.4 Contractor’s Superintendent

5.4.5 Project Administration

5.4.6 Communications

5.4.7 Non-Compliant Work

5.4.8 Cleaning

5.4.9 Labor

5.4.10 Subcontractors

5.4.11 Availability of Other Lands

5.4.12 Laws to be Observed

5.4.13 Ancillary Areas

5.4.14 Ancillary / Integral Professional Services

5.4.15 Notifications

5.4.16 Continuing the Work

5.4.17 Environment

5.4.18 Indemnity for Environmental Damages

5.4.19 Utilities

5.4.20 Separate Contracts

5.4.21 Errors, Omissions and Negligent Acts of the Contractor, its Subcontractors and Employees

5.4.22 Indemnification of TxDOT

5.4.23 Contractor’s Risk of Performance

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ARTICLE 6 HISTORICALLY UNDERUTILIZED BUSINESS SUBCONTRACTING PLAN

6.1 Resolution of Conflicts in the Documents ------------------------------------- 25

6.2 General Description ------------------------------------------------------------------- 25

6.3 Compliance with Approved HUB Subcontracting Plan --------------------- 25

6.4 Failure to Demonstrate Good Faith Effort -------------------------------------- 25

6.5 Monthly Reporting --------------------------------------------------------------------- 25

6.6 Final Report ------------------------------------------------------------------------------ 25

ARTICLE 7 BONDS AND INSURANCE

7.1 Resolution of Conflicts in the Documents ------------------------------------- 26

7.2 Construction Bonds ------------------------------------------------------------------- 26

7.2.1 Payment Bond

7.2.2 Performance Bond

7.2.3 Surety Requirements

7.2.4 Power of Attorney

7.3 Bond Indemnification ----------------------------------------------------------------- 26

7.4 Furnishing Bond Information ------------------------------------------------------ 26

7.5 Claims on Payment Bonds ---------------------------------------------------------- 26

7.6 Performance Bond Surety’s Obligation ----------------------------------------- 26

7.7 Insurance Requirements ------------------------------------------------------------- 26

7.7.3 Policy Expiration

7.8 Required Policy Clauses ------------------------------------------------------------- 27

7.9 Worker’s Compensation Insurance ---------------------------------------------- 27

7.10 Commercial General Liability Insurance ---------------------------------------- 27

7.11 Business Automobile Liability Insurance -------------------------------------- 27

7.12 Builder’s Risk Insurance ------------------------------------------------------------- 28

7.13 Special Insurance Coverage -------------------------------------------------------- 28

7.13.1 Asbestos Abatement Liability Insurance

ARTICLE 8 CONTRACT DOCUMENTS

8.1 Resolution of Conflicts in the Documents ------------------------------------- 29

8.2 Drawings and Specifications ------------------------------------------------------- 29

8.2.1 Copies Furnished

8.2.2 Ownership of Plans and Specifications

8.2.3 Interrelation of Documents

8.2.4 Resolution of Conflicts in the Documents

8.2.5 Contractor’s Duty to Review Contract Documents

8.2.6 Errors and Omissions in Drawings and Specifications

8.3 Requirements for Record Documents ------------------------------------------- 29

ARTICLE 9 SAFETY

9.1 Resolution of Conflicts in the Documents ------------------------------------- 30

9.2 General ------------------------------------------------------------------------------------ 30

9.3 Notices ------------------------------------------------------------------------------------- 30

9.4 Emergencies ----------------------------------------------------------------------------- 30

9.5 Injuries ------------------------------------------------------------------------------------- 30

9.6 Environmental Safety ----------------------------------------------------------------- 30

9.6.6 Environmental Quality

9.7 Indemnity for Environmental Damages ----------------------------------------- 31

9.8 Trenching Safety ----------------------------------------------------------------------- 31

9.9 Indemnification of TxDOT ----------------------------------------------------------- 31

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ARTICLE 10 QUALITY CONTROL

10.1 Resolution of Conflicts in the Documents ------------------------------------- 32

10.2 Materials & Workmanship ----------------------------------------------------------- 32

10.3 Testing ------------------------------------------------------------------------------------- 32

10.3.1 Contractor Testing

10.3.2 TxDOT Testing

10.3.3 Non-Compliance (Test Results)

10.3.4 Notice of Testing

10.3.5 Test Samples

10.3.6 Covering up Work

10.4 Inspections ------------------------------------------------------------------------------- 32

10.4.1 Access

10.4.2 Notice of Inspection

10.4.3 Covering up Work

10.5 Deficiencies in the Work ------------------------------------------------------------- 33

10.6 Submittals -------------------------------------------------------------------------------- 33

10.6.1 Contractor’s Submittals

10.6.2 Review of Submittals

10.6.3 Correction and Resubmission

10.6.4 Limits on Shop Drawing Review

10.6.5 No Substitutions without Review

10.6.6 Unauthorized Substitutions at Contractor’s Risk

10.7 Field Mock-up --------------------------------------------------------------------------- 34

10.8 Inspection During Construction --------------------------------------------------- 34

10.9 Buy Texas --------------------------------------------------------------------------------- 35

ARTICLE 11 CONSTRUCTION SCHEDULES

11.1 Resolution of Conflicts in the Documents ------------------------------------- 36

11.2 Work Progress Schedule ------------------------------------------------------------ 36

11.2.1 Schedule Requirements

11.2.2 Schedule Updates

11.2.3 Effect of Work Progress Schedule

11.3 Ownership of Float --------------------------------------------------------------------- 36

11.4 Force Majeure --------------------------------------------------------------------------- 36

ARTICLE 12 CONTRACT TIME

12.1 Resolution of Conflicts in the Documents ------------------------------------- 38

12.2 Contract Time --------------------------------------------------------------------------- 38

12.3 Authorization to Begin Work ------------------------------------------------------- 38

12.4 Completion of Work ------------------------------------------------------------------- 38

12.5 Computation of Contract Time for Completion ------------------------------- 38

12.6 Modification of the Contract Time ------------------------------------------------ 38

12.6.1 Extension of Time

12.6.2 Excusable Delay

12.6.3 Excusable Delay Relief

12.6.4 Non-compensable Delay

12.6.5 Non-compensable Delay Relief

12.6.6 Concurrent Delay

12.6.7 Other Time Extension Requests

12.7 No Damages for Delay ---------------------------------------------------------------- 39

12.8 Duty to Perform ------------------------------------------------------------------------- 39

12.9 Failure to Complete Work within the Contract Time ------------------------ 39

12.10 Liquidated Damages ------------------------------------------------------------------ 40

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ARTICLE 13 PAYMENTS

13.1 Resolution of Conflicts in the Documents ------------------------------------- 41

13.2 Schedule of Values -------------------------------------------------------------------- 41

13.3 Lump Sum Payment ------------------------------------------------------------------- 41

13.4 Texas Identification Number -------------------------------------------------------- 41

13.5 Progress Payments -------------------------------------------------------------------- 41

13.5.1 Preliminary Pay Worksheet

13.5.2 Contractor’s Application for Progress Payment

13.6 Owner’s Duty to Pay ------------------------------------------------------------------- 42

13.6.4 Stored Material

13.6.5 Retainage

13.6.6 Price Reduction to Cover Loss

13.6.7 Final Payment

13.6.8 Title to Material and Work

13.7 Continued Obligations ---------------------------------------------------------------- 43

13.8 Off-Site Storage ------------------------------------------------------------------------- 43

ARTICLE 14 CONTRACT CHANGES

14.1 Resolution of Conflicts in the Documents ------------------------------------- 44

14.2 Minor Changes -------------------------------------------------------------------------- 44

14.3 Emergency Change -------------------------------------------------------------------- 44

14.4 Unilateral Change Order ------------------------------------------------------------- 44

14.5 Change Orders -------------------------------------------------------------------------- 44

14.6 Administration of Change Order Requests ------------------------------------ 44

14.6.1 Routine Change

14.6.2 Unexpected Circumstance

14.6.3 Emergency Change

14.6.4 Valuation of Change Order Work

14.6.5 Contractor Cost Reduction Proposal

14.7 Claims for Additional Costs -------------------------------------------------------- 47

14.8 Concealed Site Conditions ---------------------------------------------------------- 47

14.9 Extension of Time ---------------------------------------------------------------------- 47

14.10 Contractor’s Risk of Performance ------------------------------------------------ 47

ARTICLE 15 PROJECT COMPLETION AND ACCEPTANCE

15.1 Resolution of Conflicts in the Documents ------------------------------------- 48

15.2 Closing Inspections ------------------------------------------------------------------- 48

15.2.1 Request for Substantial Completion Inspection

15.2.2 Substantial Completion Inspection

15.2.3 Requirements for Substantial Completion

15.2.4 Substantial Completion Punch List

15.2.5 Final Completion Inspection

15.2.6 Final Punch List

15.2.7 Final Punch List Inspection

15.2.8 Annotation

15.2.9 Purpose of Inspection

15.2.10 Additional Inspections

15.2.11 Phased and Whole Completion

15.2.12 Time Charges

15.3 TxDOT’s Right of Occupancy ------------------------------------------------------ 50

15.4 Acceptance and Payment ----------------------------------------------------------- 50

15.4.1 Request for Final Payment

15.4.2 Allowances

15.4.3 Final Payment Documentation

15.4.4 Offsets and Deductions

15.4.5 TxDOT Approval

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15.4.6 Final Payment Due

15.4.7 Effect of Final Payment (TxDOT)

15.4.8 Effect of Final Payment (Contractor)

15.4.9 Effect on Warranty

ARTICLE 16 WARRANTY AND GUARANTY

16.1 Resolution of Conflicts in the Documents ------------------------------------- 52

16.2 Contractor’s General Warranty and Guaranty -------------------------------- 52

16.3 Warranty Period ------------------------------------------------------------------------ 52

16.4 Limits on Warranty --------------------------------------------------------------------- 52

16.5 Events Not Affecting Warranty ---------------------------------------------------- 52

16.6 Separate Warranties ------------------------------------------------------------------- 52

16.7 Correction of Defects ----------------------------------------------------------------- 53

16.8 Certification of No Asbestos Containing Materials or Work ------------- 53

16.9 Telecommunications System Warranty Period ------------------------------- 53

ARTICLE 17 SUSPENSION AND TERMINATION

17.1 Resolution of Conflicts in the Documents ------------------------------------- 54

17.2 Suspension of Work for Cause ---------------------------------------------------- 54

17.3 Suspension of Work for TxDOT’s Convenience ----------------------------- 54

17.4 Termination by TxDOT for Cause ------------------------------------------------- 54

17.5 Termination for Convenience of TxDOT ---------------------------------------- 55

17.6 Termination by Contractor ---------------------------------------------------------- 56

17.7 Settlement on Termination ---------------------------------------------------------- 56

ARTICLE 18 DISPUTE RESOLUTION

18.1 Resolution of Conflicts in the Documents ------------------------------------- 57

18.2 Contractor Disputes ------------------------------------------------------------------- 57

18.3 Unresolved Contractor Disputes -------------------------------------------------- 57

18.3.1 Contractor Claim

18.3.2 Owner Claim

18.4 Condition Precedent to Formal Administrative Hearing ------------------- 57

18.5 Condition Precedent to Seeking Consent to Sue ---------------------------- 57

18.6 Continued Performance -------------------------------------------------------------- 57

18.7 Access to Documents ---------------------------------------------------------------- 57

ARTICLE 19 MISCELLANEOUS

19.1 Resolution of Conflicts in the Documents ------------------------------------- 58

19.2 Special Conditions --------------------------------------------------------------------- 58

19.3 Standard Specifications -------------------------------------------------------------- 58

19.3.1 Measurement

19.3.2 Payment

19.4 Personal Liability of Public Officials --------------------------------------------- 58

19.5 Assignment of Contract -------------------------------------------------------------- 58

19.6 Responsibility for Damage Claims ----------------------------------------------- 58

19.7 Assertion of Claim --------------------------------------------------------------------- 58

Article 1

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Article 1 General Definitions

Unless the context clearly requires another meaning, the following terms have the meaning assigned herein.

1.1 Addendum means a change in proposal forms developed between advertising and bid submittal deadline. Addenda will be issued only by TxDOT and must be acknowledged by a bidder for his proposal to be publicly read.

1.2 Advertisement means the public announcement for work to be performed or materials to be furnished. The public announcement will be via the Electronic State Business Daily (ESBD) web site operated and maintained by the State acting through the Texas Comptroller of Public Accounts.

(http://www.txsmartbuy.com/sp)

1.3 Apparent Low Bidder means the Bidder determined to have the numerically lowest total bid as a result of tabulation of bids by TxDOT.

1.4 Architect/Engineer (A/E) means a person registered as an architect pursuant to Tex. Occ. Code Ann., Chapter 1051, as a landscape architect pursuant to Tex. Occ. Code Ann., Chapter 1052, a person licensed as a professional engineer pursuant Tex. Occ. Code Ann., Chapter 1001 and/or a firm employed by TxDOT or Contractor to provide professional architectural and/or engineering services and to exercise overall responsibility for the design of a Project or a portion thereof, and to perform contract administration responsibilities as set forth in the Contract Documents.

1.5 Authorization to Begin Work Letter means the letter issued by TxDOT authorizing the Contractor to begin work in accordance with the provisions of the Contract and establishing the date stated in the Contract for completion of the Work, or establishing the beginning date time charges will commence for computing Contract Time for completion of the Work.

1.6 Award means the Commission’s authorized representative’s written acceptance of the Bidder’s bid for a proposed Contract that authorizes TxDOT to enter into a Contract.

1.7 Bid means the offer of a Bidder for performing the Work described in the Contract Documents including any changes made by addendum.

1.8 Bid Bond means the security executed by the Bidder and the Surety furnished to TxDOT to guarantee payment of liquidated damages if the Bidder fails to enter into an awarded Contract.

1.9 Bid Error means a mathematical mistake made by a Bidder in an item number price entered into the proposal.

1.10 Bid Form means Proposal Form.

1.11 Bidder means an individual, partnership, limited liability company, corporation or joint venture submitting a bid for a proposed Contract.

1.12 Building Contract means a contract entered under Transportation Code, Chapter 223, Subchapter A for the construction or maintenance of a Department building or appurtenant facilities and considered to be a Highway Improvement Contract as defined in Texas Administrative Code, § 9.11.

1.13 Business Day means Monday through Friday, 8 a.m. to 5 p.m. excluding state and federal holidays.

1.14 Calendar Day means any day including Saturdays, Sundays, and legal holidays.

1.15 Certificate of Insurance means a form approved by the Department covering insurance requirements stated in the Contract.

1.16 Change Order means TxDOT’s written order to the Contractor detailing changes to the specified Work, item quantities, or any other necessary modification of the Contract, at TxDOT’s sole discretion.

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1.17 Claim means a claim for compensation, for a time extension, or for any other remedy arising from a dispute, disagreement, or controversy concerning respective rights and obligations under the Contract.

1.18 Commission means the Texas Transportation Commission or authorized representative.

1.19 Company means the Bidder and/or Contractor.

1.20 Contract means the entire agreement between the Owner and the Contractor, including all of the Contract Documents, establishing the obligation of the parties for furnishing of materials and performance of the Work prescribed in the Contract Documents.

1.21 Contract Documents means the elements of the agreement (Contract) between the Owner and the Contractor. These include, but are not limited to, Bonds, Insurance, Plans, Shop Drawings, Specifications, Uniform General Conditions, Special Conditions, Special Provisions, Special Specifications, Standard Specifications, Change Orders, Bidding Documents, Advertisement, Bidder’s Proposal, and all pre-bid addenda.

1.22 Contractor means the individual, company, partnership, limited liability company, corporation, or joint venture and all principals and representatives, jointly and severally, that are responsible for performance of a Contract awarded by TxDOT. In the event of termination for cause of a Contract with a Performance Bond the Surety becomes the Contractor.

1.23 Contract Sum means the total compensation payable to the Contractor for completion of the Work in accordance with the terms of the Contract.

1.24 Contract Time means the period of time from the date computation of time charges begin as set forth in the Authorization to Begin Work letter to the date stated in the Contract for completion of the Work, or the number of calendar days allowed in the Contract for completion of the Work, plus any TxDOT approved extensions.

1.25 Day means a calendar day, unless otherwise specifically stipulated.

1.30 Dispute means a disagreement between TxDOT and the Contractor or its authorized successor over the interpretation of the Contract Documents.

1.31 District Representative (DR) means the individual identified by TxDOT who will assist the Project Manager; perform periodic observations of the Work for general compliance with the plans and specifications; be the point of contact for coordination with the end-user for Work being conducted on an operational site; and perform other duties as specifically defined elsewhere in the Contract Documents and/or reflected in the Pre-construction Conference meeting minutes.

1.32 Drawings mean the sealed product of the Architect and/or Engineer which graphically depicts the Work.

1.33 Engineer see Architect/Engineer (A/E).

1.34 Environmental Laws means Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”) 42 U.S.C. §9601 et seq.; the Toxic Substance Control Act (“TSCAS”), 15 U.S.C. §2601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1802; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §9601, et seq.;

the Clean Water Act (“CWA”), 33 U.S.C. §1251 et seq.; the Safe Drinking Water Act, 42 U.S.C.

§300f et seq.; the Clean Air Act (“CAA”), 42 U.S.C. §7401 et seq.; M.G.L. c. 21C and c. 21E; Texas Health and Safety Code Chapter 361; Texas Water Code Chapter 26; and any permits, licenses, approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the preceding laws or other similar federal, state or local laws, regulations, rules or ordinances now in effect, or that may hereafter apply, relating to environmental matters.

1.35 Executive Director means the executive director of the Texas Department of Transportation.

1.37 Final Acceptance means the date determined and certified by the Architect/Engineer and TxDOT on which the Work is fully and satisfactorily complete in accordance with the Contract subject to the expiration of all warranty periods or any other overriding provision of the Contract Documents.

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1.38 Final Completion means the date determined and certified by the Architect and/or Engineer, if applicable, and TxDOT on which the Work to the best of their information, knowledge and belief is fully and satisfactorily complete in accordance with the Contract subject to the expiration of all warranty periods or any other overriding provision of the Contract Documents.

1.39 Hazardous Materials means (i) hazardous wastes, hazardous substances, hazardous constituents, toxic substances or related materials, whether solids, liquids or gases, including but not limited to substances defined as "hazardous wastes," "hazardous substances," "oils," "toxic substances," "pollutants," "contaminants," "radioactive materials," or other similar designations in, or otherwise subject to regulation under, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. §9601 et seq.; the Toxic Substance Control Act ("TSCAS"), 15 U.S.C. §2601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1802; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §9601, et seq.;

the Clean Water Act ("CWA"), 33 U.S.C. §1251 et seq.; the Safe Drinking Water Act, 42 U.S.C.

§300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C. §7401 et seq.; M.G.L. c. 21C and c. 21E; Texas Health and Safety Code Chapter 361; Texas Water Code Chapter 26; and in any permits, licenses, approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the preceding laws or other similar federal, state or local laws, regulations, rules or ordinance now in effect, or that may hereafter apply, relating to environmental matters (collectively the "Environmental Laws"); and (ii) any other substances, constituents or wastes subject to any applicable federal, state or local law, regulation or ordinance, including any environmental law, now or hereafter in effect, including but not limited to (A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle fuel and (E) asbestos.; and

(iii) any materials that, prior to execution of the Contract, were not designated as hazardous materials that, after execution of the Contract, become new hazardous materials subject to regulation under the aforementioned “Environmental Laws” and any applicable federal, state, or local law, regulation or ordinance.

1.40 Letting means the receipt, opening and determination of the apparent low Bidder.

1.41 Letting Official means the Executive Director or any TxDOT employee empowered by the Executive Director to officially receive and close the receipt of bids at a letting.

1.42 Owner means the State of Texas acting through the Texas Department of Transportation (TxDOT).

1.43 Payment Bond means the security executed by the Contractor and the Surety, furnished to the TxDOT obligating the Surety to guarantee payment of all legal debts of the Contractor pertaining to the Contract.

1.44 Performance Bond means the security executed on a form provided by TxDOT by the Contractor and the Surety, furnished to TxDOT to guarantee the completion of the Work in accordance with the terms of the Contract.

1.47 Plans mean Drawings.

1.48 Power of Attorney for Surety Bonds means an instrument under corporate seal appointing an attorney-in-fact to act on behalf of a Surety in signing bonds.

1.49 Prime Contractor means Contractor.

1.50 Project means all activities necessary for realization of the Work. This includes design, contract award(s), execution of the Work itself, and fulfillment of all Contract and warranty obligations.

1.51 Project Manager (PM) means the individual identified by TxDOT who will be responsible for the general administration of the Contract; is the single point of contact between TxDOT and the Contractor; conveys all directives on behalf of TxDOT to the Contractor; decides all questions which may arise as to the quality or acceptability of materials furnished, work performed, and interpretations of the plans and specifications when such action is not a contravention of a design decision made by an Architect / Engineer in preparation of the plans and specifications or such action is in conflict with statutes under which the Architect or Engineer is licensed for the protection of the public health or safety; the manner of performance and rate of progress of the Work; and

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1.52 Project Site means the real property on which the demolition, improvements, alternations, etc. as described in the Contract Documents will be implemented.

1.53 Proposal means the offer of the Bidder submitted on the prescribed form giving a bid price for performing the Work described in the plans and specifications and all addenda issued.

1.54 Proposal Form means the forms printed by the Bidder from the Electronic State Business Daily (ESBD) website operated and maintained by the State acting through the Texas Comptroller of Public Accounts.

1.55 Proposal Guaranty means the security designated in the proposal and furnished by the bidder as a guaranty that the bidder will enter into an awarded contract.

1.56 Request for Proposal (RFP) means a document generated by TxDOT which informs the Contractor of a proposed change in the Work, and appropriately describes or otherwise documents such proposed change.

1.57 Responsive Bid means a proposal that meets all requirements of the proposal form for acceptance.

1.58 Routine Facilities Contract (RFC) means a Contract let through the routine facilities contracting procedure for the construction or maintenance of a Department building or appurtenant facilities.

1.59 Samples mean representative physical examples of materials, equipment or workmanship, used to confirm compliance with requirements and/or to establish standards for use in execution of the Work.

1.60 Schedule of Values means the cost breakdown, in such detail as acceptable to TxDOT, of the materials, labor and equipment necessary to accomplish the Work as described in the Contract Documents, submitted by Contractor for approval by TxDOT.

1.61 Shop Drawings means the drawings, diagrams, illustrations, schedules, performance charts, brochures and other data prepared by the Contractor or its agents, which detail a portion of the Work.

1.62 Site see Project Site.

1.63 Special Conditions means supplemental additions or revisions to the Uniform General Conditions applicable to the Contract not covered by the Uniform General Conditions. Special Conditions are a part of the Contract Documents and have precedence over the Uniform General Conditions.

1.64 Special Provisions means additions or revisions to standard specifications.

1.65 Specifications means the written product of the Architect and/or Engineer, if applicable, that establishes the quality and/or performance of products utilized in the Work and processes/standards to be used, including testing and verification, for compliance.

1.66 Standard Specifications means the Texas Department of Transportation Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges adopted November 1, 2014 and updates as posted on TxDOT official website at http://www.txdot.gov and relevant to the Project.

1.67 State means the State of Texas.

1.68 State Let Building Contract (SLBC) means a Contract let through the state let building contracting procedure for the construction or maintenance of a Department building or appurtenant facilities.

1.69 Subcontract means the agreement between the Contractor and subcontractor establishing the obligations of the parties for furnishing of materials and performance of the Work prescribed in the Contract Documents.

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1.70 Subcontractor means an individual, partnership, limited liability company, corporation, or any combination thereof that the Contractor sublets any portion of the Work or provide services, materials or equipment for use in the Work.

1.71 Substantial Completion means the stage of progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents, so that TxDOT employees and the public can safely occupy, utilize, and operate the improvements and all elements of the Work for purposes intended without hindrance or material interference from the Contractor’s minor “punch list items” completion activities or on-going work performance of those portions of the Work not being considered for Substantial Completion. The date of Substantial Completion is the date established by the Contractor and TxDOT as set forth in the Certificate of Substantial Completion issued by TxDOT.

1.72 Supplemental Instruction means a written order issued by the PM or authorized representative making minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time.

1.73 TxDOT means the Texas Department of Transportation acting on behalf of the State of Texas.

1.74 Unit Price Work means Work or a portion of the Work paid for based on incremental units of measurement.

1.75 Unilateral Change Order (ULCO) means a Change Order issued by TxDOT without the agreement of the Contractor.

1.76 Work means the administration, procurement, materials, equipment, construction and all services necessary for the Contractor, or its agents or both, to fulfill the Contractor’s obligations under the Contract.

Article 2

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Article 2 Procedures Governing Bidding

2.1 RESOLUTION OF CONFLICTS IN THE DOCUMENTS. In the event of conflict between the requirements of this Article and the Specifications the more restrictive shall apply.

2.2 EXAMINING DOCUMENTS AND WORK LOCATIONS

2.2.1 Examine the proposal form, plans, and specifications, and specified work locations before submitting a bid for the work.

Submitting a bid will be considered evidence that the Bidder has performed the examination. For plans which include data for borings, soil profiles, ground water elevations, and underground utilities the information was obtained for use by TxDOT in the preparation of the plans. This information is provided for the Bidder’s information only and TxDOT makes no representation as to the accuracy of the data.

2.2.2 Oral explanations, instructions, or consideration of Contractor-proposed changes in the proposal form given during the bidding process are not binding. Only requirements included in the proposal form, associated uniform general conditions, specifications, plans and TxDOT-issued addenda are binding. Request explanations of documents in adequate time to allow TxDOT to reply before the bid opening.

2.2.3 Immediately notify TxDOT of any error, omission, or ambiguity discovered in any part of the proposal form and Contract documents. TxDOT will issue addenda when appropriate.

2.3 ELIGIBLE BIDDER

2.3.1 To be eligible to bid on a building contract a potential bidder must satisfactorily comply with any financial, experience, technical, or other requirement contained in the governing specifications applicable to the project in accordance with Texas Administrative Code Rule §9.12 (e).

2.4 PREPARING AND SUBMITTING THE BID

2.4.1 Proposal Form. Prepare the bid on the proposal form provided by TxDOT. Documents may be obtained electronically at the Electronic State Business Daily (ESBD) website operated and maintained by the State acting through the Texas Comptroller of Public Accounts. http://www.txsmartbuy.com/sp.

2.4.1.1 Execute the proposal form in ink with the complete and correct name of the individual, firm, corporation or combination thereof making the proposal. The person authorized to bind the Bidder or Bidders must sign the proposal. Specify a price in dollars and cents for each bid item and if included each allowance item on the proposal form.

2.4.2 Proposal Guaranty. Provide a proposal guaranty in the amount indicated on the proposal form. Use either a guaranty check or a printed bid bond. If a proposal guaranty is not required it will state so on the proposal form.

2.4.3 Guaranty Check. Make the check payable to the Texas Transportation Commission or the Texas Department of Transportation. The check must be a cashier’s check, money order, or teller’s check drawn by or on a state or national bank, or a state or federally chartered credit union (collectively referred to as a “bank”). The check must be dated on or before the date of the bid opening. Postdated checks will not be accepted. The type of check or money order must be indicated on the face of the instrument, except in the case of a teller’s check, and the instrument must be no more than 90 days old. A check must be made payable at or through the institution issuing the instrument; or drawn by a bank and on a bank; or be payable at or through a bank. TxDOT will not accept personal checks, certified checks, or other types of money orders.

2.4.4 Bid Bond. Use the bid bond form provided by TxDOT. Submit the bid bond in the amount specified with the powers of attorney dated and attached. Retyped copies of the bid bond form will not be accepted. The bond must be dated on or before the date of the bid opening, bear the impressed seal of the Surety, and be signed by the Bidder or Bidders and an authorized individual of the Surety. As an alternative for joint venture Bidders, each of the Bidders may submit a separate bid bond completed as outlined in this Section. Bid bonds will only be accepted from Sureties authorized to execute a bond under and in accordance with State law.

2.4.5 Addendum. Verify if addenda have been issued for the proposed Contract. If addenda have been issued they must be acknowledged on the Addendum Acknowledgment form. Submit the Addendum Acknowledgment form with the proposal.

2.4.6 HUB Subcontracting Plan. If a HUB Subcontracting Plan is required it will be so stated on the proposal form. If a HUB Subcontracting Plan is required complete and sign the HUB Subcontracting Plan (HSP) and submit with the proposal.

2.4.7 Department of Homeland Security (DHS) E-Verify Registration. Register in the DHS E-Verify system. Remain active in E-Verify throughout the life of the contract. Subcontractors must also register and remain active in E-Verify until their work is completed.

2.4.8 Submittal of Bid. Place the completed proposal form and the proposal guaranty in a sealed envelope marked to indicate the contents.

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2.4.8.1 When submitting by mail or delivery service, place the envelope in another sealed envelope and address as indicated in the official advertisement. It is the Bidder’s responsibility to ensure that the sealed bid arrives at the location described on or before the time and date set for the bid opening. To be accepted, the bid must be in the hands of the Letting Official by the time and date set for the receipt of proposals, regardless of the method chosen for delivery.

2.4.9 Revising the Proposal Form. Make desired changes to the Bidder entered information on the proposal form in ink, initial each change made, and submit the proposal to the Letting Official. TxDOT will not make revisions to a bid on behalf of a Bidder.

2.4.10 Withdrawing a Bid. Submit a written request to withdraw a bid before the time and date set for the receipt of proposals.

TxDOT will not accept oral requests. A written request must be signed and submitted to the Letting Official with proof of identification. The request must be made by a person authorized to bind the Bidder or Bidders. In case of joint venture, TxDOT will accept a request from a person authorized to bind a party to the joint venture. TxDOT may require written delegation of authority to withdraw a bid when the individual sent to withdraw the bid is not authorized to bind the Bidder or Bidders.

2.5 OPENING AND READING OF BIDS

2.5.1 Reading of Bids. At the time, date, and location specified in the official advertisement, the Letting Official will publicly open and read bids. A bid determined to be nonresponsive may or may not be read.

2.5.2 Nonresponsive Bid. TxDOT will not accept a nonresponsive bid. A bid that has one or more of the deficiencies listed below is considered nonresponsive:

2.5.2.1 the bid was not in the hands of the Letting Official at the time and location specified in the advertisement,

2.5.2.2 a bid was submitted for the same proposal form by a Bidder or Bidders and one or more of its partners or affiliates,

2.5.2.3 the Bidder did not acknowledge or improperly acknowledged all addenda,

2.5.2.4 the Bidder is suspended or debarred by the Commission, Department, or any federal agency,

2.5.2.5 the Bidder was prohibited from rebidding a specific proposal form due to failure to enter into a Contract on the original award,

2.5.2.6 the bidder failed to enter into a Contract on the original award,

2.5.2.7 the Bidder was defaulted or terminated on the original Contract, unless TxDOT terminated in the best interest of the State or the public,

2.5.2.8 the Bidder or a subsidiary or affiliate of the Bidder has received compensation from TxDOT to participate in the preparation of the plans or specification or both on which the bid or Contract is based,

2.5.2.9 the Bidder’s HUB Subcontracting Plan was determined by TxDOT to be non-compliant,

2.5.2.10 the Bidder did not submit a HUB Subcontracting Plan when it was required to be submitted,

2.5.2.11 the Bidder failed to participate in the Department of Homeland Security's (DHS) E-Verify System as specified above,

2.5.2.12 the proposal guaranty did not comply with the requirements contained in this Article,

2.5.2.13 the proposal form was not signed,

2.5.2.14 the proposal form was signed by a person who was not authorized to bind the Bidder or Bidders,

2.5.2.15 a bid item or allowance item or both are left blank,

2.5.2.16 the bid was in a form other than TxDOT official proposal form,

2.5.2.17 the Bidder modified the bid in a manner that altered the conditions or requirements for work as stated in the proposal form as determined solely by TxDOT,

2.5.2.18 certifications were not acknowledged,

2.5.2.19 the Bidder did not attend a mandatory pre-bid conference.

2.6 CONSIDERATION OF BID ERRORS

2.6.1 Consideration. TxDOT will consider a claim of a bid error by the apparent low Bidder if the following requirements have been met:

2.6.1.1 a written notification is submitted to TxDOT within 5 business days after the date the bid is opened; and

2.6.1.2 the submittal identifies the items of work involved and include bidding documentation. TxDOT may request clarification of submitted documentation.

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2.6.2 Evaluation. TxDOT will evaluate the claim of an error by the apparent low Bidder by considering the following:

2.6.2.1 the bid error relates to a material item of work,

2.6.2.2 the bid error amount is significant portion of the total bid,

2.6.2.3 the bid error occurred despite the exercise of ordinary care, and

2.5.2.4 the delay of the proposed work will not impact cost and safety to the public.

2.6.3 Acceptance. Acceptance of the bid error claim by TxDOT will result in the rejection of all bids. The erring Contractor will not be allowed to bid the project when it is re-let. Rejection of bids due to the Contractor’s bid error may result in the application of sanctions by TxDOT.

2.7 TIE BIDS

2.7.1 Tie Bids. If the bid amount for 2 or more Bidders is equal and those bids are the lowest responsive bids submitted, each tie Bidder will be given an opportunity to withdraw their bid. If 2 or more tie Bidders and do not withdraw their bids, the low Bidder will be determined by a coin toss or a series of coin tosses when there are more than 2 Bidders.

If all Bidders request to withdraw their bids, no withdrawals will be allowed and the low Bidder will be determined by a coin toss or a series of coin tosses when there are more than 2 Bidders. The Letting Official will preside over the proceedings.

2.8 RETURN OF PROPOSAL GUARANTY

2.8.1 Proposal Guaranty Check The proposal guaranty check of all Bidder’s except the apparent low Bidder will be returned via U.S. mail to the address specified on TxDOT Return Bid Guaranty Check Form by the Bidder.

2.8.2 Bid Bond. Bid bonds will not be returned.

Article 3

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Article 3 Award and Execution of Contract

3.1 RESOLUTION OF CONFLICTS IN THE DOCUMENTS. In the event of conflict between the requirements of this Article and the Specifications the more restrictive shall apply.

3.2 AWARD OF CONTRACT

3.2.1. Time. The Commission or designated representative will award, reject, or defer the Contract within 30 days after the opening of the proposal.

3.2.2. Reservations. TxDOT reserves the right to reject any or all proposals and to waive technicalities in the best interest of the State.

3.2.3. Award. The Commission or designated representative will award the Contract to the Bidder with the lowest responsive bid (low Bidder). The Commission or designated representative may award a Contract to the Bidder with the second lowest responsive bid (second lowest Bidder) when the following requirements have been met:

3.2.3.1 the Contract is for work with a TxDOT estimated cost to construct of less than $300,000 and the Contract does not include federal funds,

3.2.3.2 the low Bidder withdraws its bid or fails to enter into Contract,

3.2.3.3 the second lowest Bidder agrees to perform the work for the amount of the low Bidder,

3.2.3.4 the Executive Director or designated representative recommends in writing the award of the Contract to the second lowest Bidder, and

3.2.3.5 the Commission or designated representative agrees with the Executive Director or designated representative’s recommendation for award to the second lowest Bidder.

3.2.4. Rejection. The Commission or designated representative will reject the Contract if:

3.2.4.1 the low bid contains a bid error that in the sole determination of TxDOT satisfies the requirements and criteria in Article 2, or

3.2.4.2 rejection of the Contract is in the best interest of the State.

3.3 RESCINDING OF AWARD

3.3.1 Award Cancel. The Commission or designated representative reserves the right to cancel the award of any Contract before contract execution with no compensation due when the cancellation is in the best interest of the State. TxDOT will return the proposal guaranty to the Contractor.

3.4 EXECUTION OF CONTRACT. Provide the following within fifteen (15) days after written notification of award of the Contract. If bonds are not required provide the following within seven (7) days after written notification of award of the Contract.

3.4.1. Contract. Execute the Contract as prescribed by TxDOT.

3.4.2. Bonds. Tender to TxDOT performance and payment bonds in accordance with Table 1. Execute and date the performance and payment bond in the full amount of the Contract with the powers of attorney. Furnish the payment and performance bond as guaranty for the protection of the claimants and TxDOT for labor and materials and the faithful performance of the Work in accordance with the Contract Documents.

3.4.2.1 Each bond shall be executed on TxDOT’s form by a corporate surety or sureties authorized to do business in the State of Texas, acceptable to TxDOT and in compliance with relevant provisions of the Texas Insurance Code. If a Surety upon a bond loses its authority to do business in the State, the Surety’s underwriting limitation drops below the required bond amount or the Surety is declared bankrupt or insolvent, the Contractor shall, within fifteen (15) days after occurrence of any of the aforementioned events, furnish a replacement bond at no added cost to TxDOT. In such event the Work will be suspended until a substitute Surety acceptable to TxDOT is provided and a non-compensable time extension to the Contract will be granted for the fifteen (15) days or thirty (30) days if an acceptable Surety is not readily provided, whichever is sooner.