NEW General Conditions for Construction.pdf

STATE OF MARYLAND

Department of

General Services

General Conditions for

Construction Contracts

Department of General Services Board of Public Works

Ellington E. Churchill, Jr., Secretary Lawrence J. Hogan, Governor

301 W. Preston Street Peter Franchot, Comptroller

Baltimore, Maryland 21201 Nancy K. Kopp, Treasurer

Document Revised July 1, 2018

State of Maryland · Department of General Services General Conditions for Construction Contracts – July 1, 2018

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General Conditions for Construction Contracts

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TABLE of CONTENTS

Section 1 – General Provisions

1.01 – Definitions

1.02 – Contract Documents

1.03 – Conditions Affecting The Work

1.04 – Relationships Of Contractor To Public Officials And Employees

1.05 – Commercial Nondiscrimination Policy

1.06 – Conflict Of Interests

1.07 – Laws To Be Observed

1.08 – Pre-Existing Regulations (COMAR 21.07.01.17)

1.09 – Assignment of Antitrust Claims

1.10 – Solicitation, Warranty – Contingent Fee Prohibition (COMAR 21.07.01.09)

1.11 – Assignment, Novation, Change Of Name

1.12 – Permits And Licenses

1.13 – Notice To Proceed

1.14 – Unauthorized Work

1.15 – Conformity With Contract Requirements

1.16 – Progress Meetings – Scheduling Meetings

1.17 – MBE-Related Liquidated Damages

1.18 – State Property Not Subject To Lien

1.19 – State Not Subject To Limitations

1.20 – Multi-Year Contract Contingent Upon Appropriation (COMAR 21.07.01.10)

Section 2 – Owner

2.01 – Interpretation Of The Contract Documents

2.02 – Performance Evaluations

Section 3 – Contractor

3.01 – General

3.02 – Site Investigation (COMAR 21.07.02.06)

3.03 – Financial Disclosure (COMAR 21.07.01.19)

3.04 – Political Contribution Disclosure (COMAR 21.07.01.20)

3.05 – Prevailing Wage Rates

3.06 – Cost and Price Certification (COMAR 21.07.01.23)

3.07 – Contract Cost Principles and Procedures

3.08 – Control By the Contractor

3.09 – Project Signs and Inspector’s Field Office

3.10 – Barricades and Warning Signs

3.11 – Public Convenience and Safety

3.12 – Preservation, Protection and Restoration of Property

3.13 – Construction Safety and Health Standards

3.14 – Land, Air and Water Pollution, and Erosion Control

3.15 – Non-Discrimination in Employment (COMAR 21.07.01.08) and Affirmative Action

3.16 – Employees and Workmanship

3.17 – Coordination With Utilities

3.18 – Maintenance of Work During Construction

3.19 – Failure to Maintain Entire Project

3.20 – Subcontracts

3.21 – Relation of Contractor to Subcontractors and Suppliers

3.22 – Removal of Defective Work

3.23 – Retention of Records – Audits by The State

3.24 – Maintenance of On-Site Documents

Section 4 - Architect

4.01 – General

Section 5 – Materials

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5.01 – General

5.02 – Patents, Copyrights, Trade Secrets and Projected Matter

5.03 – Buy American Steel

5.04 – Substitutions

5.05 – Shop Drawings and Material Submittals

5.06 – Approved Equal

5.07 – Storage and Handling of Materials

Section 6 – Construction By Owner

6.01 – State’s Right to Do Work

6.02 – Separate Contracts

6.03 – Adjacent Work

Section 7 – Changes In The Work

7.01 – Change Orders (COMAR 21.07.02.02)

7.02 – Differing Site Conditions

7.03 – Modification of Contract Price

7.04 – Force Account Directive

7.05 – Deductions for Uncorrected Work

Section 8 – Time

8.01 – Progress Schedule Requirements

8.02 – Delays

Section 9 – Payments and Completion

9.01 – Cash Allowance

9.02 – Scope of Payment

9.03 – Certificates of Payment; Retainage

9.04 – Non-Compliant Work

9.05 – Payment and Interest

9.06 – Payments Withheld

9.07 – Prompt Payment of Subcontractors (COMAR 21.07.02.05-2)

9.08 – Cleaning Up

9.09 – Partial Acceptance

9.10 – Substantial Completion

9.11 – Correction of Work Before Final Payment

9.12 – Final Payment

9.13 – Warranty

Section 10 – Insurance Requirements

10.01 – Requirements (COMAR 21.07.02.01 & 21.07.02.10)

Section 11 – Inspections, Test, State Inspections

11.01 – Inspections

11.02 – Federal Participation

11.02 – No Waiver of Rights – State’s Remedies Cumulative – State’s Damages

Section 12 – Termination or Suspension of the Contract

12.01 – Termination for Default; Damages for Delay; Time Extensions (COMAR 21.07.02.07)

12.02 – Suspension of Work (COMAR 21.07.02.04)

12.03 – State’s Right to Terminate for Convenience

Section 13 – Contract Disputes and Claims

13.01 – General

13.02 – Notice To State of Labor Disputes

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SECTION 1 – GENERAL PROVISIONS

1.01 DEFINITIONS

A. The words and terms stated in subsection B have the meanings indicated.

1. Allowance – Set aside dollar amount, as determined by the State, in the contract for the acquisition of contract requirements.

2. Approved Equal – Those materials, supplies or services, or compatible items of construction whose quality, design or performance characteristics are functionally equal or superior to an item specified and which meet all salient characteristics and other requirements of the contract as determined by the Department.

3. The Architect – The person commissioned to design the project and/or provide construction-phase architectural or engineering services. If the design was performed by an Engineer rather than an Architect, “Architect” shall refer to the Engineer. If the design was performed by the State, “Architect” shall refer to the State. The Procurement Officer may exercise any power or authority of the Architect under the contract.

4. Breach – Means an infraction or violation of the contract – Synonymous with “default.”

5. Change Order – A written order or directive signed by the Procurement Officer, directing a Contractor to make changes, which the Changes clause of the contract authorizes the Procurement Officer to issue with or without the consent of the Contractor. An order of the Procurement Officer, by virtue of being called a “change order,” does not necessarily constitute and shall not be construed to be a change in the scope of the contract or in the work required under the contract or to entitle the Contractor to additional compensation for performing the work which is the subject of the order.

6. Claim – "Claim" means a complaint by a contractor or by a procurement agency relating to a contract subject to

COMAR Section 21.10.04 – Contract Claims and Disputes

7. Conformed Set of Drawings – Conformed drawings are completed Project Drawings issued for construction which have been conformed to incorporate clarifications and/or changes stemming from addenda and/or requests for clarifications during the estimating and/or bidding process.

8. Contract – The written agreement executed between the State and the Contractor by which the Contractor is bound to perform the work and furnish the labor, services, equipment and materials, and by which the State is obligated to compensate him therefore at the mutually established and accepted rate or price.

9. Contract Documents – The contract documents include the agreement, the solicitation documents, the construction bid form, contract forms and bonds, Instructions to Bidders, the executed Bid/Proposal Affidavit and Contract

Affidavit, General Conditions, specifications, addenda, supplemental conditions and specifications, all special conditions and provisions, all technical provisions, all plans, the notice to proceed, any written change orders and supplemental agreements that are required to complete the construction of the work in an acceptable manner, including authorized extensions thereof, all approved shop drawings (subject to Sections 5.05 J and K and all other provisions of the contract) which are in accordance with the requirements of the other contract documents, and all other documents as provided in the contract. These documents, which comprise the contract, are sometimes referred to collectively as the “contract documents.”

10. The Contractor – Any person or organization having a direct contractual relationship with the State for the execution of the work.

11. Contract Completion Date – The date upon which the Work of the Contract is required to be completed. The

Contract Completion Date is calculated by adding the Contract Time to the Start Date.

12. Contract Time – The number of calendar days, including weekends and holidays, within which the Contractor shall complete the Work of the Contract. The Contract Time shall commence upon the Start Date.

13. Critical Path Method (CPM) – A scheduling/management tool recognizing a network of work elements or activities and a critical path for completion of a construction project.

14. Day - Means calendar day unless otherwise designated.

15. The Department or DGS – Refers to the Maryland Department of General Services.

16. Dispute – "Claim" means a complaint by a contractor or by a procurement agency relating to a contract subject to

COMAR Section 21.10.04 – Contract Claims and Disputes

17. Including – Means “including but not limited to.”

18. Inspector – A representative of the Department assigned to review on-site construction activities for the State in accordance with Section 11.

19. Jargon – Work described in words that have a well-known technical or trade meaning shall be held to refer to such recognized standard use.

20. Materials – Means, all equipment; parts; products; methods of construction or of performing the work which may be the subject of a patent, copyright or other right or restriction governing its use; and processed and unprocessed natural substances required for completion of the contract.

21. Notice to Proceed – A written notice to the Contractor of the start date on which he shall begin the prosecution of the work.

22. Payment Bond – The security in the form approved by the Department and executed by the Contractor and his surety, 6 | P a g e and paid for by the Contractor, as a guarantee that the Contractor will pay in full all his bills and accounts for materials and labor used in the construction of the work, as provided by law.

23. Performance Bond – The security in the form approved by the Department and executed by the Contractor and his surety, and paid for by the Contractor, guaranteeing for the benefit of the State complete performance of the contract in accordance with its terms and conditions.

24. Plans – The official design drawings issued or accepted by the State as part of the contract documents, including those incorporated into the contract documents by reference.

25. Procurement Officer – (A) Any person authorized by the Department in accordance with law or regulations to formulate, enter into, or administer contracts or make written determinations and findings with respect to the contract and (B) an authorized representative acting within the limits of the representative’s authority; and (C) the Secretary or

Deputy Secretary of the Department.

26. Project Manager – The individual designated by the Department to manage the project on behalf of the State

27. Repair – To restore after damage, deterioration, or wear; to mend; to renovate by such means as appropriate and to supply such materials and labor as necessary to render the item to be repaired sound, solid, true, plumb, square, even, smooth and fully functional; or to bring into conformity with contract requirements. Upon completion of such repair, it must be, unless otherwise stated, rendered to such condition as to present a first-class finished work, or in instances where the repaired item serves as a base for additional finish, the repaired work must be such as to permit a first-class finish, to be applied without extra cost to the State. When the word “repair” is used in connection with machinery or mechanical equipment, it shall mean, in addition to the above, rendering the equipment completely functional, efficient, and ready for the normal use for which it was intended.

28. The State – The Maryland Department of General Services.

29. The Secretary – The Secretary or Deputy Secretary of the Maryland Department of General Services, or designee.

30. SF&P – The State Finance and Procurement Article of the Annotated Code of Maryland.

31. Shop Drawings – A shop drawing is a drawing or set of drawings produced by the contractor, supplier, manufacturer, subcontractor, or fabricator. Shop drawings are typically required for prefabricated components.

32. Solicitation Documents – The State’s Invitation for Bid or Request for Proposals and any amendment(s) thereto.

33. Start Date – The date provided in the Notice to Proceed upon which the Work is authorized to commence.

34. Sub-Contractor – Except as is otherwise provided herein, “Sub-Contractor” means an entity having a direct contract with the Contractor or sub-contractor to furnish a part of the work. It includes one who furnishes material worked to a design according to the contract documents for the Work.

35. Submittals – Submittals in construction are shop drawings, material data, samples, and product data. Submittals are required primarily for the architect and engineer to verify that the correct products will be installed on the project.

36. Supervisory Personnel – The individual(s) designated by the Contractor to direct or oversee the Work.

37. Surety – The corporate body bound as required by law for the full and complete performance of the contract by the Contractor or for the payment by the Contractor to Sub-Contractors and suppliers.

38. Unit Prices – See definition in ITB.

39. Work – The provision of all labor, materials, equipment, services, utilities and other incidentals and the manufacture or fabrication of materials or equipment necessary for the successful completion of the project and the carrying out of all the duties and obligations of the Contract.

40. Written Notice – Written notice shall be deemed to have been duly served on the Contractor if delivered in person to the individual or to the member of the firm or to an office of the corporation to whom it is directed, or if delivered or sent by regular or certified mail to the last business address known to the State or by electronic transmission. Written notice shall be deemed to have been given to the Department upon actual receipt of written notice.

1.02 CONTRACT DOCUMENTS

A. It is the intent of the contract documents to show all of the work necessary to complete the project. The contract documents are also complementary; that which is called for by any one shall be binding as if called for by all:

1. The intent of the contract documents is to include in the scope of the contract at no additional cost to the State, all work required for completion of the project ready for continual efficient operation including any work reasonably inferable.

2. Clarification: Prior to bidding, the Contractor should obtain clarification of all questions which may have arisen as to intent of the contract documents, or any actual conflict between two or more items in the contract documents. Should the Contractor have failed to obtain such clarification, then the Department may direct that the work proceed by any method indicated, specified or required, in the judgment of the Department, by the contract documents. Such direction by the Department shall not constitute the basis for a claim for extra costs by the Contractor. The

Contractor acknowledges that he had the opportunity to request clarification prior to submitting his bid to the State and that he is not entitled to claim extra costs as a result of failure to receive such clarification.

3. Precedence: In the event of a conflict between these General Conditions and any other provision of the contract documents, these General Conditions shall prevail unless such other provision expressly provides to the contrary.

Nothing in the bid, proposal, or other submissions from the Contractor shall prevail over any contract documents unless

7 | P a g e expressly agreed to by the Procurement Officer in writing by a properly approved change order or contract modification. In case of a conflict between the specifications and the drawings, the specifications will control.

B. Drawings: The Contractor shall do no work without approved drawings and instructions. Drawings may or may not be drawn to scale, and symbols may be used to indicate materials and structural and mechanical requirements. When symbols are used, those parts of the drawings are by necessity diagrammatic or schematic and it is not possible to indicate all connections, fittings, fastenings, etc. which are required for the execution of the work. Diagrammatic or schematic indications of piping, duct work and conduit and similar items in the work are subject to field adjustment in order to obtain proper grading, fitting passage over, under or past obstructions, to avoid exposure in finished rooms and unsightly and obstructing conditions.

The Contractor shall make these adjustments at no increased cost to the State.

C. Ownership: All drawings remain the property of the State. They shall not be used by the Contractor on other projects and they shall be returned to the State, if requested, upon completion of the work.

D. Dimensions: The Contractor shall carefully check all dimensions prior to execution of the particular work. Whenever inaccuracies or discrepancies are found, the Contractor shall consult the Department prior to any construction or demolition.

Should any dimensions be missing, the Department must be consulted and it will supply them prior to execution of the work.

Dimensions for items to be fitted into constructed conditions at the job will be taken at the job and will be the responsibility of the Contractor. Whenever a stock size manufactured item or piece of equipment is specified or is proposed by the

Contractor to be furnished, it is the responsibility of the Contractor to determine the actual space requirements for setting or entrance to the setting space. No additional cost will be allowed by reason of work requiring adjustments in order to accommodate the particular item of equipment furnished by the Contractor.

1.03 CONDITIONS AFFECTING THE WORK

The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the State. The State is not responsible for any representation or purported agreement concerning conditions or contract requirements made by any State employee or representative prior to the execution of this contract, unless such understanding or representation is expressly stated in the contract.

1.04 RELATIONSHIP OF CONTRACTOR TO PUBLIC OFFICIALS AND EMPLOYEES

A. In carrying out any of the provisions of the contract, or in exercising any power or authority granted to them by or within the scope of the contract, there shall be no liability upon the Procurement Officer or other authorized representatives of the State, it being understood that in all such matters they act solely as agents and representatives of the State.

B. The State may terminate the contract for default or hold the Contractor liable for damages for breach of the contract as provided in subsection C if it is found by the Procurement Officer that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending of the contract, or the making of any determinations with respect to the performance of the contract.

C. In the event this contract is terminated for default or the Contractor is held liable for damages as provided in subsection B hereof, the State shall be entitled (1) to pursue the same remedies against the Contractor as it could pursue in the event of a termination for default or a breach of the contract by the Contractor, and (2) in addition to any other damages to which it may be entitled, to exemplary damages in an amount (as determined by the Procurement Officer) which shall be not less than three nor more than ten times the costs incurred by the Contractor in providing any such gratuities to any such officer or employee.

D. Non-hiring of officials and employees (COMAR 21.07.01.05) - No official or employee of the State of Maryland, as defined under State Government Article, §15-102, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this contract, shall during the pendency and term of this contact and while serving as an official or employee of the State become or be an employee of the Contractor or any entity that is a subcontractor on this contract.

1.05 COMMERCIAL NON-DISCRIMINATION POLICY

A. As a condition of entering into this Agreement, Contractor represents and warrants that it will comply with the State’s

Commercial Non-discrimination Policy, as described under Title 19 of the State Finance and Procurement Article of the

Annotated Code of Maryland. As part of such compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, or on the basis of disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this clause does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the

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Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.

Note: Paragraph 1.05 must be incorporated into every subcontract entered into under this contract

B. As a condition of entering into this Agreement, upon the Maryland Human Relations Commission’s request, and only after the filing of a complaint against Contractor under Title 19 of the State Finance and Procurement Article, as amended from time to time, Contractor agrees to provide within 60 days after the request a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State’s Commercial

Nondiscrimination Policy as set forth under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland, and to provide any documents relevant to any investigation that is requested by the State. Contractor understands that violation of this clause is a material breach of this Agreement and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions.

1.06 CONFLICT OF INTEREST

The contract is subject to the provisions of Section 13-212 of SF&P and COMAR 21.05.08.08, Conflict of Interest.

1.07 LAWS TO BE OBSERVED

A. The Contractor shall keep fully informed of all Federal, State, and local laws, ordinances, rules and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. He shall at all times observe and comply with all such laws, rules, ordinances, regulations, orders and decrees; he shall protect and indemnify the State and its representatives against any such claim or liability arising from or based on the violation of any law, ordinance, regulation, order, or decree, whether by himself or his employees, Sub-Contractors or suppliers at any tier. Whenever the contract documents require the Contractor to comply with provisions of Federal, State, or local laws, regulations, ordinances or codes, Contractor must comply whether such laws, regulations, ordinances or codes are expressly incorporated into the contract or not.

B. The Contractor must comply with the provisions of the Workers’ Compensation Act and Federal, State and local laws relating to hours of labor.

C. The provisions of this contract shall be governed by the laws of the State of Maryland.

D. If the Contractor observes that the contract documents are at variance with any applicable law, ordinance or regulation, he shall promptly notify the Procurement Officer and the Architect, and, except as provided in subsection E, any necessary changes shall be adjusted as provided in the contract for changes in the work. If the Contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice, he shall bear all costs arising therefrom.

E. The State is not responsible for the actions, orders or interpretations of Federal, county, municipal, or other local officials or representatives respecting the application to the work of Federal, State, or local laws, ordinances, regulations or codes.

Contractor shall not be entitled to additional compensation for unanticipated costs of complying with any such actions, orders or interpretations.

F. Compliance with Laws (COMAR 21.07.01.22) - the Contractor hereby represents and warrants that:

1. It is qualified to do business in the State of Maryland and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;

2. It is not in arrears with respect to the payment of any monies due and owing the State of Maryland, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;

3. It shall comply with all federal, State, and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract; and

4. It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Contract.

1.08 PRE-EXISTING REGULATIONS (COMAR 21.07.01.17)

In accordance with the provisions of Section 11-206 of the State Finance and Procurement Article, Annotated Code of Maryland, the regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR Title 21) in effect on the date of execution of this Contract are applicable to this Contract.

1.09 ASSIGNMENT OF ANTITRUST CLAIMS

The Contractor sells, transfers and assigns to the State of Maryland all rights, title and interest of, in and to any causes of action arising at any time before the date of this assignment or during the performance of this contract under the antitrust laws of the

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United States, including Section 1 of the Sherman Act, and the antitrust laws of Maryland relating to the purchase by Contractor or the State of Maryland of any products from any supplier or source whatever that is incorporated in the structure built under the terms of this contract. The Contractor hereby certifies that the above causes of action are lawfully owned and that no previous assignment of same has been made nor has the same heretofore been attached or pledged in any manner whatsoever.

1.10 SOLICITATION WARRANTY – CONTINGENT FEE PROHIBITION (COMAR 21.07.01.09)

The Contractor, Architect, or Engineer (as applicable) warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or agent working for the Contractor, Architect, or Engineer, to solicit or secure this agreement, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee or agent, any fee or any other consideration contingent on the making of this agreement. Contractor must comply with the provisions of 13-223 of SF&P.

1.11 ASSIGNMENT, NOVATION, CHANGE OF NAME

The provisions of COMAR 21.05.02.24 respecting assignment, novation and change of name are incorporated into and made a part of the contract.

1.12 PERMITS AND LICENSES

A. When required by law or the contract, the State or its authorized representative will file with the appropriate local authority, drawings and specifications and any pertinent data reasonably proper for their information. The Contractor will be required to pay all necessary fees to local authorities for inspection or for the privilege or right to execute the work as called for in the contract documents and he shall include the cost of said fees in his base bid. The State shall not be responsible for the actions or interpretations of county, municipal, or other local agencies or officials respecting the application of Federal, State or local laws, rules, ordinances, regulations, codes, or policies to the work.

B. The Contractor must be licensed as required by Title 17, Subtitle 6 or Title 8 of the Business Regulation Article, Annotated

Code of Maryland, and must be qualified by submission and approval of a Qualification Questionnaire (DGS Form 340-8-

CQ3) to the Department.

1.13 NOTICE TO PROCEED

A. After the contract has been executed, the Department will issue to the Contractor a “Notice to Proceed” and this notice will stipulate the start date on which the Contractor is expected to begin work. The specified contract time shall begin on the start date stated in the “Notice to Proceed.” Except as provided in Section 8.01.B.2, any work started or materials ordered before the start date stated in the “Notice to Proceed” shall be at the risk of the Contractor. The Contractor is prohibited from doing any work on the site without the insurance required by this contract, except:

1. As provided in paragraph 2 below, if the Department fails to issue a Notice to Proceed within 90 days following execution of the contract by the Department, or by such date later than 90 days as may be contemplated by the solicitation documents, the Contractor will have as its sole remedy the option of: (a) declaring the contract void without any liability or obligation on the part of the State except that if the Department fails to issue a Notice to Proceed for reasons unrelated to submission, review, and acceptance of the submittals required by Section 8 .01 (B)&(C), the Department shall reimburse the Contractor its actual costs of developing same; or

(b) accepting an extended period, at no additional cost to the State, for issuance of a Notice to Proceed.

2. If the failure of the Department to issue a Notice to Proceed within 90 days following execution of the contract by the Department, or by such date later than 90 days as may be contemplated by the solicitation documents, is caused, wholly or in part, by breach or default of the Contractor or other fault of the Contractor or his Subcontractors or suppliers at any tier, the Contractor shall be entitled to no relief under paragraph (1) above based on delay in issuance of the Notice to Proceed. In such a case, the Contractor shall be bound to perform the contract within the time allowed following actual issuance of the Notice to Proceed, at no additional cost to the

State.

1.14 UNAUTHORIZED WORK

The Contractor shall not be paid for any work outside the scope of the contract not authorized in writing by the Procurement Officer.

1.15 CONFORMITY WITH CONTRACT REQUIREMENTS

A. All work performed and all materials furnished shall be in conformity with the contract requirements.

B. In the event the Department finds the materials, or the finished product in which the materials are used or the work performed are not in complete conformity with the contract requirements and have resulted in an inferior or unsatisfactory product, 10 | P a g e the work or materials shall be removed and replaced or otherwise corrected by and at the expense of the Contractor.

C. In the event the Department finds the materials or the finished product in which the materials are used are not in complete conformity with the contract requirements, but have resulted in a satisfactory product, it shall then make a determination if the work shall be accepted. In this event, the Procurement Officer will document the basis of acceptance by a Change Order which will provide for an appropriate adjustment, if any, in the contract price.

1.16 PROGRESS MEETINGS - SCHEDULING MEETINGS

A. General – The Contractor and his major Sub-Contractors shall hold and attend bi-weekly progress meetings with the State and the Architect (unless the Architect’s absence is excused by the Department) at the site. The Department may require progress meetings to be held more frequently at no additional cost to the State. Minutes of progress meetings shall be prepared and circulated by the Architect.

B. Scheduling Meetings - See Section 8.01.A.7

1.17 MBE-RELATED LIQUIDATED DAMAGES

A. This contract requires the Contractor to make good faith efforts to comply with the Minority Business Enterprise

(“MBE”) Program and contract provisions. The State and the Contractor acknowledge and agree that the State will incur damages, including but not limited to loss of goodwill, detrimental impact on economic development, and diversion of internal staff resources, if the Contractor does not make good faith efforts to comply with the requirements of the MBE Program and

MBE contract provisions. The parties further acknowledge and agree that the damages the State might reasonably be anticipated to accrue as a result of such lack of compliance are difficult to ascertain with precision.

B. Upon a determination by the State that the Contractor failed to make good faith efforts to comply with one or more of the specified MBE Program requirements or contract provisions, the Contractor agrees to pay liquidated damages to the State at the rates set forth below. The Contractor expressly agrees that the State may withhold payment on any invoices as a set-off against liquidated damages owed. The Contractor further agrees that for each specified violation, the agreed upon liquidated damages are reasonably proximate to the loss the State is anticipated to incur as a result of such violation.

1. Failure to submit each monthly payment report in full compliance with COMAR 21.11.03.13B (3): $153 per day until the monthly report is submitted as required.

2. Failure to include in its agreements with MBE subcontractors a provision requiring submission of payment reports in full compliance with COMAR 21.11.03.13B (4): $76 per week per MBE subcontractor.

3. Failure to comply with COMAR 21.11.03.12 in terminating, canceling, or changing the scope of work/value of a contract with an MBE subcontractor and/or amendment of the MBE participation schedule:

the difference between the dollar value of the MBE participation commitment on the MBE participation schedule for that specific MBE firm and the dollar value of the work performed by that MBE firm for the contract.

4. Failure to meet the Contractor’s total MBE participation goal and sub-goal commitments: the difference between the dollar value of the total MBE participation commitment on the MBE participation schedule and the MBE participation actually achieved

Notwithstanding the use of liquidated damages, the State reserves the right to terminate the contract and exercise all other rights and remedies provided in the contract or by law.”

1.18 STATE PROPERTY NOT SUBJECT TO LIEN

Neither the Contractor nor any Subcontractor or supplier at any contract tier may have or acquire any lien against State property.

1.19 STATE NOT SUBJECT TO LIMITATIONS

The State is not bound by laches or any statute of limitations or repose, and Contractor may not assert laches, limitations, or a statute of repose as a defense against any claim or action brought by the State.

1.20 MULTI-YEAR CONTRACTS CONTINGENT UPON APPROPRIATION (COMAR 21.07.01.10)

If the General Assembly fails to appropriate funds or if funds are not otherwise made available for continued performance for any fiscal period of this Contract succeeding the first fiscal period, this Contract shall be cancelled automatically as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; provided, however, that this will not affect either the State's rights or the Contractor's rights under any termination clause in this Contract. The effect of termination of the Contract hereunder will be to discharge both the Contractor and the State from future performance of the Contract, but not from their rights and obligations existing at the time of termination. The Contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the Contract. The State shall notify the Contractor as soon as

11 | P a g e it has knowledge that funds may not be available for the continuation of this Contract for each succeeding fiscal period beyond the first.

SECTION 2 – OWNER

2.01 INTERPRETATION OF THE CONTRACT DOCUMENTS

A. The Procurement Officer shall be the final interpreter of the contract documents. He will furnish with reasonable promptness, through DGS or the Architect, such clarifications as he may deem necessary for the proper execution of the work. Clarifications issued by the Architect shall be consistent with the intent of the contract documents and, when in special instances, the Architect is authorized by the Department so to act, the Architect has authority to stop work whenever such stoppage may be necessary to ensure the proper execution of the contract.

B. Except as otherwise expressly provided in the contract documents, all decisions of the Architect are subject to approval by the

Department.

2.02 PERFORMANCE EVALUATIONS

A. The Department will perform for the benefit of itself and other State agencies evaluations (interim and/or final) of the performance of the Contractor and Sub-Contractors and suppliers.

B. Performance evaluations may be used or reviewed by a Procurement Officer in the course of making a determination of responsibility under other procurements.

C. Unsatisfactory performance of this contract (or any part of it), whether or not the contract is terminated for default and whether or not an unsatisfactory report (interim or final) is issued, may result in a determination that the Contractor is not a responsible bidder or offeror under COMAR 21.06.01.01.

D. Nothing in this contract shall be construed to limit or qualify the authority of a Procurement Officer under SF&P or COMAR

Title 21.

SECTION 3 – CONTRACTOR

3.01 GENERAL

A. The Contractor shall be lawfully licensed in the jurisdiction where the Project is located at all times during the term of the contract and shall perform the Work in accordance with the contract documents. The Contractor shall supervise and direct the work, using his best skill and attention. He shall be solely responsible (1) for all construction means, methods, techniques, sequences and procedures, (2) for coordinating all portions of the work under the contract, and (3) to the extent he or his Sub-

Contractors or suppliers at any tier design or are required to design any portion of the work. Contractor must aggressively and diligently pursue completion of the contract within the contract time.

B. The Contractor shall be responsible to the State for the acts and omissions of his employees, Sub-Contractors and suppliers at any tier, and their agents and employees performing any of the work to or for the Project.

C. The Contractor shall not be relieved from its obligations to perform the work in accordance with the contract documents due to non-performance of inspections, tests or approvals by the State or persons hired by the State.

D. The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the contract documents and shall not unreasonably encumber the site with any materials or equipment.

E. Cutting and Patching of Work:

1. The Contractor shall be responsible for all cutting, fitting or patching that may be required to complete the work or to make multiple parts fit together properly.

2. The Contractor shall not damage or endanger any portion of the work or the work of others or any separate

Contractors by cutting, patching or otherwise altering any work, or by excavation. The Contractor shall not cut or otherwise alter the work of others or any separate Contractor except with the written consent of the Department and of such separate Contractor.

F. The Contractor shall not unreasonably withhold his consent to cutting or otherwise altering the work. The Contractor shall perform all work in accordance with the terms, provisions, conditions, lines, grades, typical cross-sections, dimensions, and other data in or required by the contract documents, including the furnishing of all materials, services, implements, machinery, equipment, tools, supplies, transportation, labor, and all other items necessary for the satisfactory prosecution and completion of the project in full compliance with the requirements of the contract documents.

G. Indemnification:

1. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the State and the

Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from the performance of the work, provided that any such claim, damage, loss or expense (1) is attributable to actual or threatened bodily injury, sickness, disease or death, or to actual or threatened injury to or destruction of tangible property including the loss of use resulting

12 | P a g e therefrom, and including but not limited to purely economic loss, and (2) is caused in whole or in part by any failure by the Contractor or its Sub-Contractors or suppliers at any tier to perform any requirement of the contract or by any negligent act or omission on the part of the Contractor or its Sub-Contractors or suppliers at any tier, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this subsection.

2. In any and all claims against the State or the Architect or any of their agents or employees by any employee of the

Contractor, any subcontractor or supplier at any tier, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation under this paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor or supplier under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.

3. Except to the extent that the Contractor is also the Architect, as provided in Section 1.02.B, the obligations of the

Contractor under this subsection shall not extend to the liability of the Architect, his agents or employees, arising out of (A) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (B) the giving of or the failure to give directions or instructions by the Architect, his agents or employees providing such giving or failure to give is the primary cause of the injury or damage.

3.02 SITE INVESTIGATION (COMAR 21.07.02.06)

The Contractor acknowledges that he has investigated and satisfied himself as to the conditions affecting the work, including but not restricted to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work.

The Contractor further acknowledges that he has satisfied himself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the State, as well as from information presented by the drawings and specifications made a part of this contract. Any failure by the Contractor to acquaint himself with the available information may not relieve him from responsibility for estimating properly the difficulty or cost of successfully performing the work. The State assumes no responsibility for any conclusions or interpretations made by the Contractor on the basis of the information made available by the State.

3.03 FINANCIAL DISCLOSURE (COMAR 21.07.01.19)

The Contractor shall comply with the provisions of Section 13-221 of the State Finance and Procurement Article of the Annotated

Code of Maryland, which requires that every business that enters into contracts, leases, or other agreements with the State of

Maryland or its agencies during a calendar year under which the business is to receive in the aggregate $100,000 or more, shall, within 30 days of the time when the aggregate value of these contracts, leases or other agreements reaches $100,000, file with the

Secretary of State of Maryland certain specified information to include disclosure of beneficial ownership of the business.

3.04 POLITICAL CONTRIBUTION DISCLOSURE (COMAR 21.07.01.20)

The Contractor shall comply with Election Law Article, §§14-101—14-108, Annotated Code of Maryland, which requires that every person that enters into contracts, leases, or other agreements with the State, a county, or an incorporated municipality, or their agencies, during a calendar year in which the person receives in the aggregate $100,000 or more, shall file with the State

Board of Elections a statement disclosing contributions in excess of $500 made during the reporting period to a candidate for elective office in any primary or general election. The statement shall be filed with the State Board of Elections: (1) before a purchase or execution of a lease or contract by the State, a county, an incorporated municipality, or their agencies, and shall cover the preceding two calendar years; and (2) if the contribution is made after the execution of a lease or contract, then twice a year, throughout the contract term, on: (a) February 5, to cover the 6-month period ending January 31; and (b) August 5, to cover the 6-month period ending July 31.

3.05 PREVAILING WAGE RATES

A. All contracts in the amount of $500,000 or more shall be subject to the provisions of 17-201, et seq., of SF&P and

COMAR 21.11.11, respecting prevailing wages. Where an original contract is in an amount less than $500,000, this section shall not apply, even where subsequent change orders increase the total contract to be in excess of $500,000. Wage rates applicable to projects of $500,000 or more are attached to the specifications. Federal wage rates shall be in effect where applicable.

B. When prevailing wage rates apply, the Contractor shall submit a copy of his payroll records and the payroll records of each of his Sub-Contractors to the Department of Labor, Licensing and Regulation, Division of Labor and Industry, 1100 North

13 | P a g e

Eutaw Street, Maryland 21201. The Contractor shall also provide to the DGS Inspector a copy of the Contractor's and its subcontractor(s) payroll records. These payroll records must be submitted within two weeks after each payroll period, and shall contain the following employee information: name, address and social security number, work classifications, hours straight time and overtime worked each day, total hours worked, rate of pay and gross amount earned. The Contractor shall be responsible for the submission of all subcontractors’ payroll records covering work performed directly at the work site.

Each copy of the payroll records shall be accompanied by a statement signed by the Contractor or the Subcontractor indicating that the payroll records are correct, that the wage rates contained therein are not less than those established by the Commissioner as set forth in the contract, that the classification set forth for each workman or apprentice conforms with the work he performed and that the Contractor or the Subcontractor has complied with the provisions of this section.

In the event of any conflict between this Section and Title 17, Subtitle 2 of SF&P, or regulations adopted thereunder, the provisions of Title 17, Subtitle 2 or the regulations will prevail.

C. For contracts using Federal funds, in whole or in part, the Davis-Bacon Act shall apply.

3.06 COST AND PRICE CERTIFICATION (COMAR 21.07.01.23)

A. Contractor by submitting cost or price information certifies that, to the best of its knowledge, the information submitted is accurate, complete, and current as of a mutually determined specified date prior to the conclusion of any price discussions or negotiations for:

1. A negotiated contract, if the total contract price is expected to exceed $100,000, or a smaller amount set by the

Procurement Officer, or

2. A change order or contract modification, expected to exceed $100,000, or smaller amount set by the Procurement

Officer.

B. The price under this Contract and any change order or modification hereunder, including profit or fee, shall be adjusted to exclude any significant price increases occurring…