SS109-002020-01.docx

SS109-002020-01 May 1, 2023

VIRGINIA DEPARTMENT OF TRANSPORTATION

2020 ROAD AND BRIDGE SUPPLEMENTAL SPECIFICATIONS

SECTION 109—MEASUREMENT AND PAYMENT

SECTION 109—MEASUREMENT AND PAYMENT of the Specifications is amended as follows:

SECTION 109.08—Partial Payments is replaced in its entirety with the following:

(a) General

Partial payments will be based on a monthly progress estimate consisting of approximate quantities and value of work performed as determined by the Engineer. When the method of measurement for a Contract item is in units of each or lump sum, the value of work accomplished for partial payment will be determined on a pro rata basis. Partial payments will be made once each month for the work performed in accordance with the Contract requirements. The Contractor will be given the opportunity to review the monthly progress estimate prior to each partial payment. Upon final acceptance, one last monthly estimate will be prepared and any additional payment due will be vouchered for payment.

The monthly progress estimates will be prepared in accordance with the following schedule:

1. Contractor companies whose name begins with the letter A through F: The monthly progress estimate will be prepared on the 4th day of each month, beginning on the first 4th day following the date of the Contract execution, and on the same day of the succeeding months as the work progresses.

2. Contractor companies whose name begins with the letter G through P: The monthly progress estimate will be prepared on the 11th day of each month, beginning on the first 11th day following the date of the Contract execution, and on the same day of the succeeding months as the work progresses.

3. Contractor companies whose name begins with the letter Q through Z: The monthly progress estimate will be prepared on the 20th day of each month, beginning on the first 20th day following the date of the Contract execution, and on the same day of the succeeding months as the work progresses.

For contracts without a payment bond, the Contractor shall submit to the Engineer a letter from each materials supplier and subcontractor involved stating that the Contractor has paid or made satisfactory arrangements for settling all bills for materials and subcontracted work that was paid on the previous month’s progress estimate. The Department will use the source of supply letter and approved subletting request to verify that certifications have been received for work that was paid on the previous monthly estimate. The Contractor shall furnish these and other certificates as are required as a prerequisite to the issuance of payment for the current monthly estimate.

The Department may withhold the payment of any partial or final estimate voucher or any sum(s) thereof from such vouchers if the Contractor fails to make payment promptly to all persons supplying equipment, tools, or materials; or for any labor he uses in the prosecution of the Contract work.

Unless otherwise provided under the terms of the Contract, interest shall accrue at the rate of one percent per month.

Contractors doing business as an individual must provide their social security numbers; proprietorships, partnerships, and corporations must provide their federal employer identification numbers.

(b) Payment to Subcontractors

Payment to subcontractors shall be in accordance with the provisions of Code of Virginia § 2.2- 4354 and § 2.2-4355 as follows.

1. Department has paid Contractor for Subcontractor’s Work.

Upon the Department’s payment to the Contractor for the subcontractor’s portion of the work as shown on the monthly progress estimate and the receipt of payment by the Contractor for such work, the Contractor shall make compensation in full to the subcontractor. For the purposes of this Section, payment of the subcontractor’s portion of the Work shall mean that payment has been issued for that portion of the Work that was identified on the monthly progress estimate for which the subcontractor has performed service.

The Contractor shall take one of the following two actions within 7 days after receipt of payment from the Department for the subcontractor’s portion of the Work as shown on the monthly progress estimate:

a. Pay the subcontractor for the proportionate share of the total payment received from the agency attributable to the Work performed by the subcontractor; or

b. Notify the Department and subcontractor, in writing, of his intention to withhold all or a part of the subcontractor’s payment along with the reason for nonpayment.

In the event payment is not made as required, the Contractor shall pay interest at the rate of one percent per month, unless otherwise provided in the Contract, to the subcontractor on all amounts that remain unpaid after 7 days, except for the amounts withheld as provided in this Section.

2. Department has not paid Contractor for Subcontractor’s Work.

In the event that the Contractor has not received payment from the Department for work performed by a subcontractor under the Contract, the Contractor is liable for the entire amount owed to such subcontractor and shall pay such subcontractor within 60 days of the receipt of an invoice following satisfactory completion of the work for which the subcontractor has invoiced. The Contractor shall not be liable for amounts otherwise reducible due to the subcontractor’s noncompliance with the terms of the Contract. However, in the event that the Contractor withholds all or part of the amount invoiced by the subcontractor under the terms of the Contract, the Contractor shall notify the subcontractor within 50 days of the receipt of such invoice, in writing, of his intention to withhold all or part of subcontractor’s payment with the reason for nonpayment, specifically identifying the contractual noncompliance, the dollar amount being withheld, and the lower-tier subcontractor responsible for the contractual noncompliance. Payment by the party contracting with the Contractor shall not be a condition precedent to payment to any lower-tier subcontractor, regardless of the Contractor receiving payment for amounts owed to them. Any contrary provisions shall be unenforceable.

3. Nothing in this Section shall be construed to (i) apply to or prohibit the inclusion of any retainage provisions in a construction contract or (ii) apply to contracts awarded solely for professional services as that term is defined in Code of Virginia § 2.2-4301 where the Department is contracting directly with an architectural and engineering firm.

4. The Contractor shall include in each of its subcontracts provisions requiring each subcontractor to include or otherwise be subject to the same payment and interest requirements with respect to each lower tier subcontractor.

5. If the Contractor fails to make payment to the subcontractor within the time frames specified herein, the subcontractor shall notify the Engineer and the Contractor’s bonding company in writing. The Contractor’s bonding company shall be responsible for insuring payment in accordance with this Section and Section 107.01.

(c) Retainage

If the Engineer determines the Contractor’s progress is unsatisfactory according to Section 108.03 or other applicable Contract documents, the Engineer will send a notice of unsatisfactory progress to the Contractor advising him of such determination. This notification will also advise the Contractor that five percent retainage of the monthly progress estimate is being withheld and will continue to be withheld for each month the Contractor’s actual progress is determined to be unsatisfactory.

When the Engineer determines that the Contractor’s progress is satisfactory in accordance with these requirements, the 5 percent retainage previously withheld because of unsatisfactory progress will be released in the next monthly progress estimate, and the remaining monthly progress estimates will be paid in full provided the Contractor’s progress continues to be satisfactory.