Category:105 Control of Work
The many aspects of control of work, including the responsibilities of the Resident Engineer, preconstruction conferences, duties of inspectors and acceptance of small quantities, are presented in this article. Also discussed is how the district construction and materials engineer is directly responsible to the District Engineer and expected to operate as the District Engineer's representative.
|EPG articles are not referenced as "sections" but as EPG XXX.X to avoid confusion with MoDOT specs (which are contractually binding).|
- 1 105.1. Authority and Duties in Contract Administration (Sec 105.1)
- 2 105.2. Plans and Working Drawings (Sec 105.2)
- 3 105.3. Conformity with Contract Documents (Sec 105.3)
- 4 105.4 Coordination of Contract Documents (Sec 105.4)
- 5 105.5 Cooperation by Contractor (Sec 105.5)
- 6 105.6 Cooperation Between Contractors (Sec 105.6)
- 7 105.7 Cooperation With Utilities (Sec 105.7)
- 8 105.8 Construction Stakes, Lines and Grades (Sec 105.8)
- 9 105.9 Authority and Duties of Resident Engineer (Sec 105.9)
- 9.1 105.9.1 Contractor Relations
- 9.2 105.9.2 Correspondence
- 9.3 105.9.3 Daily Work Reports
- 9.4 105.9.4 Documentation Records
- 9.5 105.9.5 Environmental Issues
- 9.6 105.9.6 Field Checks
- 9.7 105.9.7 Field Notes
- 9.8 105.9.8 Field Purchase Order
- 9.9 105.9.9 Inter-Departmental Relations
- 9.10 105.9.10 Invoices and Commercial Bills
- 9.11 105.9.11 Order Record
- 9.12 105.9.12 Preconstruction Conference
- 9.13 105.9.13 Project Correspondence
- 9.14 105.9.14 Project Diaries
- 9.15 105.9.15 Project Records
- 9.16 105.9.16 Public Contacts
- 9.16.1 22.214.171.124 Involving the District Engineer
- 9.16.2 126.96.36.199 News Releases
- 9.16.3 188.8.131.52 Media Contacts
- 9.16.4 184.108.40.206 Recurring Reports
- 9.17 105.9.17 Subcontract Approval Request
- 9.18 105.9.18 Training
- 10 105.10 Inspection of Work (Sec 105.10)
- 11 105.11 Unauthorized and Defective Work (Sec 105.11)
- 12 105.12 Load Restrictions
- 13 105.13 Maintenance of the Work (Sec 105.13)
- 14 105.14 Failure to Maintain Roadway or Structure (Sec 105.14)
- 15 105.15 Project Acceptance
- 15.1 105.15.1 Partial Acceptance of a Project (Semi-Final Inspection)
- 15.2 105.15.2 Final Acceptance
- 16 105.16 Controversies and Claims for Adjustment (Sec 105.16)
- 17 105.17 Venue (Sec 105.17)
- 18 105.18 Arbitration (Sec 105.18)
- 19 105.19 Digital Signatures (Sec 105.19)
- 20 105.20 Adjusting Water Service Leads
- 21 105.21 Agreement for Shifting State Highway Entrance
- 22 105.22 Duties of the District Construction and Materials Engineer
105.1. Authority and Duties in Contract Administration (Sec 105.1)
Refer to Sec 105.1 for a list of laws and regulations that establish the Resident Engineer’s authority over the contract and the circumstances where a suspension of the work may be required.
105.2. Plans and Working Drawings (Sec 105.2)
Refer to Sec 105.2 for the description and purpose of working drawings.
105.3. Conformity with Contract Documents (Sec 105.3)
Refer to Sec 105.3 for instructions regarding the requirements that work be in compliance with the specifications and the action to take when work is unacceptable.
105.4 Coordination of Contract Documents (Sec 105.4)
Refer to Sec 105.4 for a listing of the relative importance of the contract documents.
105.5 Cooperation by Contractor (Sec 105.5)
Refer to Sec 105.5 for instructions regarding the obligation of the contractor to have a set of contract documents on the job site and an agent with knowledge and authority over the project.
It is the responsibility of the Resident Engineer to encourage an atmosphere of cooperation with the contractor and other interested parties to help ensure a quality job. However, as the department's representative, the Resident Engineer must ensure that the work meets all contract requirements. It should not be expected to obtain more than what is specified, nor can any less than the contract requires be accepted.
Partnering is a management technique used to improve communications and establish an environment of cooperation between all parties. Using a systematic approach, a teamwork spirit is developed, mutual goals set, problem areas identified and a formal conflict resolution process established. Use of the partnering concept promotes good decision-making. It does not change any of the contract provisions.
Partnering should be implemented on a voluntary basis for projects selected by MoDOT based on cost, complexity, and contract time and on projects for which partnering is initiated by the contractor. Projects involving major structures, complex interchanges or critical completion dates are especially suited to partnering.
For projects where both MoDOT's and the contractor's personnel have not had previous partnering experience, a full partnering session with an outside consultant as facilitator is recommended. For projects where personnel have had substantial partnering experience, an abbreviated session with an experienced department facilitator is usually adequate. On projects where all personnel are thoroughly experienced in partnering, a brief session to draft and sign a new project-specific agreement and discuss problems should be satisfactory.
The initial partnering session should be held as soon as possible after the project is awarded. It is essential that all stakeholders be present. MoDOT upper management as well as project-level personnel, prime and subcontractor upper and project-level management, representatives of utilities and other public agencies should attend.
Follow-up meetings must be scheduled to maintain the momentum established at the initial meeting. These meetings must have an agenda and brief minutes with a list of attendees. Regular meetings may be weekly, monthly or at some other regular interval. If they are not scheduled, routine problems tend to go unresolved until they become major issues.
Regular meetings should be held on the project or in the Resident Engineer's office. MoDOT will pay for one half of all reasonable expenses. These expenses will be nonparticipating by FHWA. If meeting expenses are involved, the contractor should make initial payment and submit an invoice to the project office for payment on the project estimate. Meal expenses are exempt from participation. Copies of any invoices for meeting expenses should be kept with the agenda, minutes, and list of attendees in a project office partnering file for each project.
Acceptance of gifts as partnering items must follow MoDOT's guidelines for gratuities. Partnering logo decals, patches, or signs should be used with discretion so as not to be construed as advertising for the contractor. Signs displayed near meeting sites on the project are acceptable. Signs placed near the roadway in such a manner as to be displayed primarily for the general public are not. The purchase of special items for partnering projects shall be avoided regardless of the method of cost distribution.
A brief partnering summary must be prepared and submitted to the State Construction and Materials Engineer at the conclusion of each partnered project. This summary is critical to the future of partnering at MoDOT and should present an analysis of any advantages gained by the partnering process regarding safety, quality, conflict resolution, timely completion and total cost. A separate analysis by the contractor should be included. Emphasis should be placed on comparison of the partnered project to the outcome of similar projects that were not partnered.
105.6 Cooperation Between Contractors (Sec 105.6)
Refer to Sec 105.6 for instructions requiring cooperation between contractors when more than one contractor must work within overlapping designated project limits.
105.7 Cooperation With Utilities (Sec 105.7)
Refer to Sec 105.7 for instructions requiring cooperation with utilities on or near the job site.
105.8 Construction Stakes, Lines and Grades (Sec 105.8)
Refer to Sec 105.8 for instructions regarding staking.
It is the Resident Engineer's responsibility to stake the projects and to inform the contractor of the meaning of all stakes except when a bid item for this work is included in the contract. Sec 627 sets forth the requirements for contractor furnished surveying and staking. On projects with contractor furnished staking, it is the Resident Engineer’s responsibility to perform enough quality assurance checking to ensure that the project has been staked correctly. It is also the Resident Engineer's responsibility to know and to document that all materials meet controlling specifications, and that the finished project meets alignment, grade, quality, and quantity requirements of the contract. Authority to alter plans is limited to field changes. If changes in specifications or major alterations of plans appear necessary, the Resident Engineer must investigate the conditions and promptly submit a recommendation to the District Engineer. As soon as projects have been staked, the Resident Engineer should notify property owners in writing that stakes are in place and that fences should be removed promptly.
105.9 Authority and Duties of Resident Engineer (Sec 105.9)
Refer to Sec 105.9 for information on the authority and duties of the Resident Engineer.
Under direction of the District Engineer and the district construction and materials engineer, the Resident Engineer shall have immediate charge of one or more construction projects. The activities and efficiency of subordinates and the satisfactory prosecution of work is the responsibility of the Resident Engineer.
The Resident Engineer will be held responsible for the accuracy of all notes and reporting procedures.
Each Resident Engineer must keep a diary for each contract being supervised, in which matters of importance regarding the project shall be entered. A daily diary for each contract is only required for contracts which track Available Time (Working Days) as a completion date or milestone.
The Resident Engineer is not expected to function as the sole representative of the state but needs various assistants, inspectors and others to closely watch the different phases of work for proper compliance and for keeping records in order.
To have an efficient organization, the line of authority must be well defined. The Resident Engineer should delegate authority to each employee in line with their administrative responsibilities and should then follow up to see that delegated duties are being properly discharged. The Resident Engineer is expected to coach project office personnel to develop skills and understanding necessary to exert that authority effectively.
It is good practice to assign responsibility for inspection supervision on the project to one or more experienced inspectors. The Resident Engineer must give these employees, as chief inspectors, authority to direct and coordinate the activities of all inspection personnel and to make day-to-day decisions involving engineering judgment of an immediate nature.
Although the Resident Engineer may have a qualified inspector on the project to inspect the work, the Resident Engineer remains responsible for the overall project and should develop a process to be certain that inspection operations and reports provide assurance that the plans and specifications are being properly interpreted and applied. The Resident Engineer must also be alert to any difficulties that could arise either in the construction or in the final function of the project and try to make correction at a time when it can be done with a minimum of cost and inconvenience.
All employees are expected to accept assigned responsibility and to make decisions within the authority delegated to them. Every decision should, however, be based on fact and data. It may be necessary to consult a variety of sources to determine facts and gather data before a decision is made.
The Resident Engineer is responsible to see that project office personnel are adequately trained in a timely manner to perform assigned work. The Resident Engineer is also responsible to ensure that sufficient training is provided that inspection personnel may be prepared to advance as positions are available.
The Resident Engineer serves as team leader of the project office work group and is expected to encourage employee involvement in continually improving the quality of work or processes within the project office.
105.9.1 Contractor Relations
A good department-contractor relationship can be maintained if these suggestions are considered:
- a. Treat the contractor fairly and impartially.
- b. Study the contractor's viewpoint. Be friendly but impersonal with the contractor. Do not put yourself under obligation to any contractor.
- c. Do not discuss with outsiders the contractor's methods of handling work. Make any suggestions to the contractor only.
- d. Be ready to advise the contractor if requested, but do not make snap decisions.
- e. Issue orders only to the contractor or the contractor's authorized representative.
- f. Write and retain copies of specific orders given.
- g. Discuss the contractor's schedule with the contractor frequently. Coordinate staking and inspection with the contractor's schedule.
- h. Do not be arbitrary. Do not become involved in pointless argument with the contractor or the contractor's personnel regarding matters related to the work.
- i. Do not accept gratuities from the contractor. Do not be threatened or intimidated by the contractor. Notify your supervisor of any trouble.
All correspondence directed entirely within MoDOT should be on interdepartmental stationery. Letters directed outside MoDOT should be on regular letterhead stationery. The author's initials should appear on all copies. A letter of confirmation should always follow telephone calls originated by the district office.
Address all correspondence for the Central Office to the division engineer concerned. In the heading of all letters, show the division of the writer followed by the subject in a brief form. On all correspondence show distribution on the original and all copies. When correspondence from the district concerns matters that are not of a routine nature, send copies to all affected divisions or to the Chief Engineer.
All letters that are in report form should include a recommendation. If the letter concerns a controversy, discuss the issues on both sides. Establish reasons for any decision that may have been made. Sometimes difficulty on the project or a claim by a contractor is anticipated but has not yet fully developed. When this happens, give a detailed report while the information is fresh. State in the letter that additional information and a recommendation will be sent as the situation develops.
Report immediately all resignations, releases of monthly and hourly base employees and deaths in the manner prescribed by Human Resources. Report any unusual accomplishments by letter to Construction and Materials.
Notify the Assistant State Construction and Materials Engineer, by telephone or by e-mail, when the district construction and materials engineer will be absent from the district for more than one day to avoid a fruitless visit by main office personnel.
105.9.3 Daily Work Reports
The Daily Work Report (DWR) is a detailed and factual listing of work performed on the project, including certain specific information and general remarks, as necessary, to provide complete information on the day’s work. Refer to Daily Work Reports for additional daily work report guidelines.
The DWR shall be created each day, from the first construction activity on the jobsite until Work Complete. The DWR will indicate if the contractor or subcontractors are active in performing work on the project. All Daily Work Reports and Diary entries shall be kept in AASHTOWare. DWRs may be suspended for projects that will be idle for 2 weeks or more. This typically occurs during winter months when projects shut down or when work is complete but exceptions remain until the weather is more conducive for completing the exception. The project office will list in the last DWR entry the anticipated date of suspension and when work is expected to resume. The project office is discouraged from overusing the suspension allowance.
The Resident Engineer will maintain a daily Resident Engineer's diary (Diary Remarks) for each project, or combination of projects, let as a single contract, for those contracts which charge Working Days – either as overall contract time or with a Milestone. Each inspector responsible for a major operation must keep a separate daily record (DWR Remarks). The Resident Engineer's diary need not repeat the inspector's detailed entries but should provide brief daily comments indicating general oversight of the project, and greater detail and the Resident Engineer’s perspective of extraordinary events as may occur on, or related to, the project. The diary will indicate whether each day is chargeable. While the Resident Engineer may designate an individual to create the Resident Engineer’s diary entries under certain circumstances, it is preferred that the Resident Engineer make these diary entries a routine part of every day.
The DWR must contain a day-by-day record of all significant items relating to the project. Since it may become important evidence in settlement of claims, or establishment of responsibilities or liabilities, it is essential that notes be complete.
A partial list of items to be noted in the DWR, Diary and associated remarks are:
|RE Diary||Inspector DWR Diary|
|(Note: All contract or project wide issues, and communication specifically with the RE, or issues involving an inspector who has no DWR entry for the day)||(Note: Operation specific issues, and communication with the authoring inspector)|
|Official visitors and inspections||Weather|
|Orders given the contractor||Orders given the contractor|
|Important discussions with the contractor or the contractor's representative||Important discussions with the contractor or the contractor's representative|
|Work or materials rejected and reasons for rejection||Work or materials rejected and reasons for rejection|
|Time of shutting down or resuming work, and explanations||Time of shutting down or resuming work, and explanations|
|Progress of staking and of surveys made.||Work done by contractor's forces during the day|
|Unusual conditions, if any, such as high water, bridge failures, slides, etc.||General purpose of the work|
|Account of all contractor equipment and personnel that is being utilized on work that has the potential for being in dispute or work that might warrant additional payment. Documenting equipment and personnel is also necessary when there is a delay in work for which MoDOT might be responsible.||Account of all contractor equipment and personnel that is being utilized on work that has the potential for being in dispute or work that might warrant additional payment. Documenting equipment and personnel is also necessary when there is a delay in work for which MoDOT might be responsible.|
|Length and cause of any delay||Length and cause of any delay|
|Arrival or departure of major equipment||Arrival or departure of major equipment|
|Record of important correspondence not filed with project records (for example, emails, phone and in-person conversations)|
Entries not made directly in AASHTOWare must be made in a bound field book, including all detail necessary to tie the entry to the date, project and specific work. Bound book entries must be signed by the person making them. In no case may diary information be kept in loose-leaf form. If an error is made in any entry, it may not be erased or deleted. It must be corrected by drawing a line through the entry and entering correct information elsewhere, or by using the appropriate AASHTOWare procedure for correcting an error. Proper notes to clarify the correction must be entered and signed by the person making the correction unless the reason for correction is obvious without explanation; for example, misspelled words or incorrect dates. The AASHTOWare system automatically records the user for all transactions.
At completion of the project, all bound books specific to the project must be filed in the district office as a part of the permanent record.
105.9.4 Documentation Records
Prior to construction management systems (SiteManager, AASHTOWare Project), the Documentation Record (Form C-258) was used to document pertinent information regarding payment of such items as temporary traffic control, temporary pavement marking, undergrading, cut compaction, ditch checks, Class 3 excavation, cold milling, etc. Historically, the intent of the Documentation Record was to provide a reviewer or auditor specific details on payment of items that could not otherwise be physically verified in the field after project completion.
Numerous processes are now in place to document payment details (date, location, measurements, calculations, adjustments, etc.) of all pay items and contract adjustments. Most required documentation is entered into AASHTOWare Project, but documentation that is more suited for spreadsheet calculations, such as asphalt cement index price adjustment, manual fuel adjustments, retroreflectivity payment adjustments, pay factors, etc., is stored in eProjects. The Documentation Record (Form C-258) is no longer required for any specific type of documentation, but it remains available for unique circumstances.
Here are some examples where the Documentation Record may be useful:
- 1. To formally document detailed information and/or calculations that require presentation to the contractor for review and concurrence.
- 2. To display how liquidated damages were determined if it is not easily explainable on the estimate, as might be the case if the RE waives the Contract Admin portion of liquidated damages.
- 3. To present retroreflectivity data, calculations and results following an evaluation using the hand-held reflectometer. This might be necessary if the project is too short to call in the third-party retro-evaluation.
AWP_CO_Documentation_Records provides additional documentation guidance.
105.9.5 Environmental Issues
Environmental issues must be addressed at the preconstruction conference. Topics of discussion should include: Corps of Engineer’s (COE) Section 404 Permits, Missouri Department of Natural Resources (DNR), National Pollution Discharge Elimination System (NPDES) Permit, erosion control, asbestos abatement, well or lagoon closures, tree clearing(Indiana bats), temporary work pads, stream crossings, areas of avoidance, mitigation commitments, borrow sites or slurry discharges from diamond grinding operations.
105.9.6 Field Checks
The District Construction and Materials Engineer is to be represented on all plan field checks and assists in final details of plan preparation by suggesting details for construction where problems have been encountered in the past. A few items that need special attention are classification of excavation material, shrinkage or swell factors, placement and adequacy of entrances, proper location and size of drainage structures, drainage control, traffic handling provisions and designation of linear grading sections. The field check is the best time to determine adequacy of design with respect to such features and should be carefully and thoroughly conducted.
The design representative has the responsibility to prepare a memorandum noting changes on which agreement was reached. The District Construction and Materials Engineer must carefully check this memorandum and if necessary point out omissions or corrections. The memorandum should be checked against letting plans when the project is advertised to assure that agreed changes were incorporated in the design.
All Special Provisions should be reviewed carefully to avoid a misunderstanding during construction. Be sure the intent of each Special Provision is understood and that it is clearly written so others will know what is expected. As soon as plans and proposals have been issued for review by the districts, study them carefully. The district project development engineer should be informed of any corrections or modifications that are necessary for proper administration of the contract.
105.9.7 Field Notes
Field notes are the written record of pertinent information, measurements and observations on the project. Keep them according to uniform practice. As a minimum, meet the following general requirements.
- a. Neatness. Use an ink pen or a sharp pencil of at least 3-H hardness. Avoid crowding. Keep the book as clean as possible.
- b. Legibility. Use standard symbols and abbreviations to keep notes compact. Use plain lettering to avoid confusion.
- c. Clarity. Plan work ahead so that data can be clearly indicated. Do not make ambiguous statements. Line up descriptions and make sketches for clarity. Record data consistently. Assume that the person who will use your notes has no familiarity with the work.
- d. Completeness. Show all pertinent measurements and observations. Use a degree of accuracy consistent with the operation. If you are in doubt about the need for data, record it. Review data before leaving the field.
- All Entries Must Include:
- 1. Date
- 2. Weather conditions
- 3. Names of all persons in the party
- 4. Signature of person making entry
- e. Permanence. All entries must be made directly into AASHTOWARE Project (AWP) or bound field books. At completion of the project, books must be filed in the district office as part of the permanent record.
- f. Honesty. Record exactly what is done when it is done. Do not depend on memory at a later time. Never erase. If an entry is incorrect, draw a line through it and insert correct information immediately above. When it is necessary to add data to notes previously prepared, the added item must be dated and signed. Always enter notes directly into the record.
- g. Self-Checking. Notes should be kept so that work can be checked without returning to the field. Use positive controls. If notes are properly kept, any person familiar with the project should be able to verify accuracy of the work from information contained in notes.
- h. Pride. Strive to turn in notes of which you can be proud. Field records create an impression on others concerning your ability and integrity.
- The title page must be completed as the book or project is started. The book must have an adequate index and cross-references so the contents can be easily determined.
Information relative to a single item may be recorded in several field books. Since such data is frequently needed during the active life of the project as well as for the permanent record, it is necessary to have a means of ready reference. It is necessary, therefore, to prepare a master index of all field data in a separate field book, if it is anticipated that the project will require more than six field books other than diaries.
The master index is to be prepared by listing all items in the same sequence as in the contract. Several items may be listed on a page depending on the number of entries anticipated for each item. For ease in locating recorded data other than pay items, such as alignment notes, bench levels, cross sections, slope stakes, structure stakes and similar items, they should be included in the master index.
The master index should be brought up-to-date at least monthly. Otherwise, the recording will become unduly time consuming and the effectiveness of the index will be reduced. The master index, completed in detail, shall be submitted with the final plans. Each individual field book shall also be indexed.
105.9.8 Field Purchase Order
Refer to General Services Procurement Manual for further information guidelines.
105.9.9 Inter-Departmental Relations
Harmonious working relations among all MoDOT employees are most important. Understanding the functions and problems of other divisions as well as how they fit into the overall organization will improve teamwork within the department. Each employee has a responsibility to promote good relations with fellow employees. An employee is expected to carry out instructions of that employee's supervisor. The conduct of each supervisor should be so that it earns the full support and cooperation of those employees for whom the supervisor is responsible. Each employee must know their responsibility and must have authority to handle it.
A major factor in the promotion of good working relations is to keep your supervisor fully informed about all pertinent events that happen on work for which you are responsible. This principle applies equally at all levels of authority.
The Resident Engineer's staff, in turn, must be briefed on plans and schedules for the work immediately ahead so they are familiar with the work and able to assist in the administration of the work.
105.9.10 Invoices and Commercial Bills
105.9.11 Order Record
Order records will continue to be written and distributed under this policy.
Order records shall be documented in AASHTOWARE Project (AWP) by indicating the existence of the order record using the order record remark in the DWR or Diary. The order record should also be saved to the contract information archive folder. Hand written order records should be scanned and saved.
Order Record (C-259). Do not use order records as a form of general correspondence. They are intended to advise the contractor of specification violations, unsafe conditions and other issues as described here. Order records may be used for contract enforcement if the contractor refuses to comply with specific procedures required by the contract. Examples are traffic handling, use of specified equipment or maintaining an authorized representative on the project. Order records informing the contractor of defective material or of construction items that are not acceptable must be issued as soon as practicable to spare the contractor needless expense if removal is required. An example order record is available.
Number all order records consecutively in the upper right corner of the form. Address them to the general contractor. If an approved subcontractor is involved, "Attn.: Subcontractor" is to be added. In this case give the original to the contractor's representative on the job or send it to the contractor's home office. Prepare a copy for the subcontractor only if the subcontractor is involved.
In the preparation of an order record, it might be helpful to write the order first on a separate piece of paper and then rewrite to eliminate unnecessary words. Orders should be courteous but brief and to the point. State the location, description of work involved and the reason for the order without reference to a basis of payment or any other punitive actions. When orders cover defective work, a brief statement that the work is not acceptable and the reason it is unacceptable should be sufficient. Normally no mention should be made of method of payment, nor should the order give detailed instructions concerning either removal or replacement of any item.
Remember that others may become involved. Send the district office and the main office their respective copies on the day the order is issued. If possible, consult the district office before issuing written orders of major importance. Do not, however, delay beyond a critical point since delay may defeat the purpose for which the order record is intended.
Order records are used to suspend the work when a contractor or subcontractor has allowed liability insurance to lapse. To ensure uniform administration of this procedure, the exact wording should be used on the order record as given for:
- a. Expired Insurance for Prime Contractor. "Your liability insurance has expired. Suspend all operations until it is again in order. Project inspection ceases on this date and will not resume until your insurance condition is satisfactory. (See Sec. 104.13, Mo. Std. Specs.)"
- b. Expired Insurance for Subcontractor. "The liability insurance of your approved subcontractor,________________, has expired. Suspend the subcontractor's operations until the insurance is again in order. Project inspection of items of work involved in the subcontract ceases on this date and will not resume until your subcontractor's insurance condition is satisfactory. (See Sec. 104.13, Mo. Std. Specs.)"
- Typically, an order record will be rescinded when the issue is resolved. The rescission will be written on the lower portion of the original order record and must include the reason for the rescission.
105.9.12 Preconstruction Conference
As soon as possible after the project has been awarded, the Resident Engineer shall send the contractor a letter that provides all of the basic information they need to prepare for the preconstruction conference. See EPG 101 Standard Forms, Construction and Materials for standard letters to use for state and federal projects. The preconstruction conference should be jointly planned with the contractor to discuss construction details, conflict resolution, proposed schedules, traffic control plan, safety, etc. For minor projects, the preconstruction conference shall be optional if the prime contractor and Resident Engineer agree. Before the meeting, the Resident Engineer and anticipated project staff should study the plans and special provisions and make a field inspection of the project to become well acquainted with requirements and existing conditions.
Among those who should be invited to the conference are:
- a. District personnel from Materials, Design, Construction, Maintenance and Traffic.
- b. Resident Engineer's project personnel.
- c. The contractor and the contractor's project personnel, including subcontractors if known.
- d. Representatives of involved utilities and railroads. Railroads and utility companies should be given at least two weeks advance notice in order for them to schedule their personnel to attend.
- e. Municipal and/or county engineer if involved.
- f. Law enforcement if involved.
- g. Any other interested parties involved.
The Resident Engineer, or the Resident Engineer's assigned delegate, shall prepare the conference agenda (with input from the contractor) for leading the discussions and for making a written record of the conference. The written record is prepared in the form of a letter with concurrence by the prime contractor, with copies to all participants, the district, Construction &. Materials and the project file.
Among subjects to be discussed as they may apply to the project are:
- 1. Contractor's proposed operating schedule, utility relocation schedule, procedures for assessment of time, time schedule, completion date requirements, etc.
- 2. Environmental Issues
- 3. Work to be sublet.
- 4. A method of resolving conflict.
- 5. Legal relations and responsibilities, cooperation with utility owners, the public and other contractors, permits in connection with execution of the work, etc.
- 6. Job Special Provisions, applicable general special provisions, unusual conditions, problems anticipated and clarification of construction details.
- 7. Haul road requirements, location and scheduling of bypass construction, crossroad closure and access facilities, general responsibilities with regard to traffic and public convenience, signing and barricades, Transportation Management Plan (TMP), etc.
- 8. Employee and public safety, etc.
- 9. Delegation of authority by the contractor and engineer, lines of communication, equipment, personnel, etc. The contractor's plan of action, working hours and the numbers and type of equipment should be discussed.
- 10. The need for follow up meetings.
- 11. The need for law enforcement in work zones.\
- 12. Review the process to request any DBE Termination, Substitution or Addition (see DBE Substitution Form).
It is customary to discuss those items affecting utilities as the first order of business. The utility representatives may then be excused if they do not wish to remain for the detailed discussion of contract work.
The preconstruction conference, if properly conducted, can be a big help in getting the project properly started. Participants should come prepared to make worthwhile contributions to the conference and to improvement of general relations. As moderator, the Resident Engineer should try to keep within the scheduled agenda once the conference has begun. Any digression should be discouraged as tactfully as possible.
105.9.13 Project Correspondence
Instructions in EPG 105.9.2 Correspondence for handling of district correspondence will generally apply to project correspondence. The Resident Engineer should maintain a filing system for correspondence that provides ready accessibility to letters received and the response to those letters.
105.9.14 Project Diaries
The Resident Engineer shall keep in AASHTOWARE Construction & Materials a daily diary for each contract that tracks Available Time (Working Days) as a completion date or milestone.
The Resident Engineer's diary may be created on any contract and contain only general information about operations, conversations, instructions, justifications for decisions, etc. This method of documenting pertinent information is strongly encouraged.
105.9.15 Project Records
The Resident Engineer will require documents to support acceptance of materials and work items for both quality and quantity. Basis of acceptance for quality, method of measurement and basis of payment are established by specifications.
Documentary evidence on which to base payment must be in accord with MoDOT policies. The types of records required for the various items are covered in the appropriate articles of the Engineering Policy Guide.
The various articles explain the preparation and use of forms to be used at the project level.
105.9.16 Public Contacts
Employees should use courtesy and consideration in all contacts with the public. All of MoDOT is judged by the actions of its employees. Although an employee may not obligate the department to any course of action or any expense without due authorization, always be as tactful and helpful as conditions permit. There are many ways to communicate with the public: newspapers, radio, television, service clubs, chambers of commerce, city and county officials, and direct contact with individuals.
In dealing with residents along the highway, the Resident Engineer must try to maintain friendly relations. Requests will often be made on which the Resident Engineer does not have authority to act. When this happens, every effort must be made not to offend those making such requests. Individuals should not be referred to the Resident Engineer's supervisor but should be told that the matter will be taken up with the Resident Engineer's supervisor. After this has been done, the Resident Engineer should personally take the answer back to the interested persons.
220.127.116.11 Involving the District Engineer
If, after thorough discussion of the matter, the person still insists on seeing the District Engineer, give the name, address and telephone number of the District Engineer and suggest that an appointment be made before visiting the district office to avoid a fruitless trip. The Resident Engineer should then inform the District Engineer of the name of the person requesting the meeting. Give the District Engineer a full report of conditions about which the person will want to meet and also the status of the request.
18.104.22.168 News Releases
If conditions develop into public controversy or misunderstanding, full information about the matter should be given to public affairs so that early news releases can inform the public of the facts.
22.214.171.124 Media Contacts
In contacts with newspapers, radio or television, the Resident Engineer should furnish information only on matters in which the Resident Engineer is personally responsible and well informed. Questions concerning policy or programs should be referred to the District Engineer or public affairs manager for consideration. In some areas, the District Engineer may require that all news releases originate with the district office to ensure proper distribution to all interested media.
126.96.36.199 Recurring Reports
188.8.131.52.1 Federal Oversight
Refer to EPG 123.1.1 FHWA Oversight - National Highway System to identify the interstate bridges and bridges on the National Highway System that will require FHWA review and approval of project work. The Federal Highway Administration has access to AWP to review this information.
184.108.40.206.2 Payment Estimates and Stockpile Materials
220.127.116.11.3 Fleet Equipment Reports
Refer to General Services Fleet for guidance on how to maintain fleet equipment records.
105.9.17 Subcontract Approval Request
When a contractor desires to sublet a portion of the work, the request will be prepared on Request to Subcontract Work (Form C-220), provided by MoDOT, and submitted to the Resident Engineer. Additional information regarding subcontracting and processing this request is provided in EPG 108.1 Subletting of Contract (for Sec 108.1).
Training programs will periodically be prepared by Construction & Materials for presentation in the districts. Use these programs to train personnel expected to work in the type of inspection covered during the season ahead. No training program can be more than a springboard for individual development because of time limitations. Training is a continuing process that is the responsibility of the Resident Engineer. Urge all Resident Engineers and their principal assistants to be training conscious so they will help their inspection forces to learn new skills and improve old skills.
105.10 Inspection of Work (Sec 105.10)
Refer to Sec 105.10 for information on scope of inspection, inspection of hidden defects and the authority of other inspecting agencies.
Competent inspection is one of the most important elements entering into any construction work.
All inspectors on construction projects have the duty and authority to enforce specifications. If differences in interpretation arise with the contractor, the matter shall be decided by the Resident Engineer or, if necessary, by the district office.
The inspector should be constantly alert to situations affecting the safety and convenience of the traveling public. Appropriate action should be taken immediately to correct any condition considered unsafe or unnecessarily inconvenient to the motorist or the general public.
Specified methods for any operation shall be rigidly enforced. Otherwise, the contractor generally determines methods. The inspector must always bear in mind that management of the work is the contractor's business. However, if methods are employed that the inspector believes will impair the quality of the finished job, the inspector shall advise the contractor accordingly and notify the Resident Engineer immediately. The inspector or the engineer shall in no way attempt to supervise work for the contractor.
The inspector is not authorized to revoke, alter, enlarge, relax, or release any requirements of plans or specifications nor to approve or accept any portion of the work or to issue any instruction contrary to plans or specifications. If conditions arise which seem to make it impractical to enforce specifications, the Resident Engineer should be contacted at once.
Keep a set of plans and a copy of the specifications available for reference.
Keep a diary in which matters of importance are entered daily.
Study plans and specifications of the job assigned to you. Be fully conversant with all details of the work to be done. If you do not fully understand anything on the plans, ask the Resident Engineer for clarification.
Never argue with the contractor or the contractor's representatives. Your authority comes from the right to enforce the contract, not from superior knowledge or vocabulary. Every effort consistent with obtaining quality work should be made to maintain a spirit of cooperation and communication with the contractor.
Detailed instructions for inspection of the various phases of the work are contained in individual sections of the manual covering the major phases of highway construction.
Final Inspection (Sec 105.10.7)
Sec 105.11 provides the authority to require corrections of unauthorized or defective work. If the Resident Engineer or the responsible inspector sees deficiencies or defective work, notification should immediately be given to the contractor's representative on the project in writing. Notification is normally in the form of an order record. Do not direct how correction is to be accomplished. If the contractor fails to take corrective action or continues to operate in an unacceptable manner, the Resident Engineer should contact the district office for advice and assistance, but only after full action within the Resident Engineer's authority has been taken. Withhold payment from the contractor for any deficiencies or defective work until necessary corrective action has made the work acceptable. Subsequent construction that is directly affected by questionable construction should not be allowed to proceed until disposition of the previously unacceptable work is resolved.
Keep complete records, including diaries, memoranda, etc., detailing circumstances leading to and during the controversy. Records should include conversations with contractor's personnel, weather conditions, suggestions made by project personnel and contractor's reactions, and any action taken in an effort to correct or eliminate the problem when difficulty developed. It is advisable to keep cost records for future reference during corrective action, since this type of problem sometimes leads to claims.
Order records should be rescinded when the contractor has made satisfactory corrections. A general statement indicating corrective action taken is sufficient.
Use should not be permitted of materials for which proper inspection reports have not been received. In some cases verbal approval from district Construction and Materials is acceptable if noted in the diary. Instructions in various sections of the manual cover specific items.
Occasionally, materials previously inspected and approved will be deemed unacceptable when they reach the project. This is particularly true of items that initially have to be inspected while stocked in the supplier's yard. Examples are pipe, guardrail, handrail for bridges, aggregates, etc. When this occurs the Resident Engineer shall immediately notify district Construction and Materials.
District Construction and Materials shall promptly inspect the item on the project with the Resident Engineer to determine why the item is considered unacceptable.
This procedure lets district Construction and Materials confer immediately with the inspecting district and central office as needed. District Construction and Materials will tell them the reasons for rejection and arrange for any required corrective measures at point of origin as soon as possible.
105.12 Load Restrictions
Sec 105.12 sets forth load restrictions on active construction projects. When required by that specification, it will be necessary for the contractor to request an overweight permit from Motor Carrier Services (1-866-831-6277), and for the district to furnish that office with their recommendations. All overweight truck crossings will be by an agreement that must be approved by the Chief Engineer and the Commission. In no case will such overweight truck crossings be approved by issuance of the "Contract for Signs at Truck Crossing", by a Driveway Permit, or by a Special Permit. The request should be forwarded to the Construction and Materials Division with the following information:
- Gross weight (loaded) and
- Axle spacing of equipment that will be used for hauling.
In most cases, the agreement will require reconstruction of the roadway section to withstand the repeated overloads at the contractor’s expense.
In some situations the contractor may wish to move overweight/over dimension equipment across an existing MoDOT structure (i.e. a bridge) open to traffic. When this occurs, the contractor must inform the Resident Engineer who then forwards the request to the Bridge Division for review and analysis. This request must be provided to the Bridge Division three weeks prior to the scheduled bridge crossing. The request must include:
- Longitudinal and transverse dimension of the item to be moved
- Axle weights and
- The length and width of the vehicle’s tracks (if it has tracks).
The Bridge Division will review this material to determine if there are any structural issues associated with moving the vehicle across the structure. They will inform the Resident Engineer of their approval or denial of the contractor’s request. No "special permit" is necessary.
Hours of Operation
If operation is after daylight hours, lighting adequate to illuminate the area will have to be provided by the contractor.
The station number and the sight distance from both directions with a plan and profile sheet will be provided. A signal with red and amber lens controlled by a flagman will be required and provided by the applicant. State route traffic will have right-of-way at all times.
The length of time the crossing will be in effect.
In most cases, one or two years with renewable options are included in the agreement. On State routes with heavy traffic volumes, it may be more feasible to consider a grade separation or an adjustment of hours of operation to miss peak periods of traffic.
It is necessary to inform Motor Carrier Services (1-866-831-6277) when traffic is being placed in its final position on newly constructed roadways. It is the duty of the Resident Engineer to notify Motor Carrier Services whenever a new section of roadway under construction has traffic, traveling through the project, placed in its final position. Also, whenever any temporary restrictions are either implemented or removed in a construction project, Motor Carrier Services should be advised in order to provide the necessary routing guidelines to common carriers moving through these projects.
Vertical Clearance concerns are discussed in construction inspection guidance for Structures.
Stockpiling Material on Bridge Decks
The contractor shall not be allowed to store or stockpile any material on a bridge deck without the approval of the engineer. If for project operations it becomes necessary for the contractor to request to store or stockpile material, the contractor shall submit a written request to the engineer that is signed and sealed by a professional engineer from Missouri. This request shall include an evaluation with both dead and live load calculations to ensure that the material is safe to store. This information shall be forwarded for evaluation to the bridge office via the District Liaison Engineer for Bridge. The engineer may determine that storage of minor material quantities, such as light materials or small quantities that cannot effect the bridge loading, is acceptable on a case-by-case basis without the submittal of a signed and sealed written request. The Resident Engineer may request the assistance of the Bridge Division to review the contractor's proposal for minor material quantities.
105.13 Maintenance of the Work (Sec 105.13)
Refer to Sec 105.13 for information regarding the contractor’s responsibility to maintain the work until accepted for maintenance.
When contract items within the limits of a construction project are damaged prior to acceptance, the contractor is responsible for repair or replacement at the contractor's expense. Placing an item on a pay estimate does not constitute acceptance (refer to Sec 107.12). For example, if a guardrail end treatment is damaged by traffic before it has been accepted, the contractor must replace it without cost to the Commission. The only exceptions to this are when the damage is due to unforeseeable causes beyond the control of, and without fault or negligence on the part of the contractor such as the extreme and far reaching affects of a 500-year flood as occurred in 1993.
The contractor may also be directed to repair permanent facilities of the Commission damaged within the project limits. For example, if a run of guardrail is damaged by traffic on a pavement repair project, the Commission could direct the contractor to make the repair and recover the cost from the responsible third party even though guardrail was not a part of the contract. If the contractor documented that the cost could not be recovered after a good faith effort, the Commission would reimburse the contractor (refer to Sec 104.7.7).
The Commission would normally make repairs on portions of the project on which the contractor has not mobilized. For example, if the contract involved pavement repair on a portion of dual lane, divided roadway and the contractor was working on one side only, the Commission would make repairs on the other side until the contractor mobilized over to it. Once work begins, the contractor is responsible for repairs to the work in that area.
The Commission may make repairs within the project limits to damaged items that pose an immediate threat to the safety of the traveling public if the contractor cannot make them in a timely manner. If the damaged item was part of the contract work and had not been accepted, the cost of such repairs would be the contractor's responsibility.
105.14 Failure to Maintain Roadway or Structure (Sec 105.14)
Refer to Sec 105.14 for instructions regarding the action to take when the contractor fails to maintain the roadway or structure.
105.15 Project Acceptance
Refer to Sec 105.15 for contractual terms regarding acceptance of a project. All projects require a final review and progressive acceptance process to ensure the work has been completed in accordance with the plans and all contract requirements. The term “partial acceptance” simply means acceptance of maintenance on all or a portion of the work. Final acceptance requires both completion of the work, and receipt of all essential project documents. A Project Acceptance Flow Chart is available as a general guide.
105.15.1 Partial Acceptance of a Project (Semi-Final Inspection)
Upon completion of work on a project, in accordance with Sec 105.10.7, the District Construction & Materials Engineer (DCME), joined by the Resident Engineer, project inspector and a contractor representative, shall promptly perform a semi-final inspection of the project. This project site review shall be documented on Semi-Final Inspection (C-236) and submitted electronically to the contractor immediately following the inspection. Every effort should be made by MoDOT staff to perform the inspection as close as possible to the date the work is presumed complete. This is especially important if contract time is about to expire and the contractor is in jeopardy of incurring liquidated damages. If the inspection must be postponed due to a scheduling conflict among MoDOT staff (DCME/RE), this should be documented on the form and measures should be taken to excuse any delay time specifically attributed to unavailability of MoDOT staff (this would qualify as an excusable, but non-compensable delay). If a contract includes multiple projects, a separate semi-final inspection is done for each project and documented on individual reports. For guidance on documenting Partial Acceptance of only a portion of the work, see EPG 18.104.22.168.
The inspection team should list on the form all known corrections that are necessary before the count of contract time ceases and the project can be partially accepted. Corrections include, but are not limited to, work items that are not considered complete, corrective work (i.e. work items not completed to the satisfaction of the engineer), removal of construction signs and general clean-up of the project site (removal of asphalt header piles, trash, porta-potty, excess material, etc.). The Resident Engineer shall document the date all corrections are complete on the Semi-Final Inspection (C-236) since this represents the final day in the measurement of contract time. This date shall be entered into AWP as the Actual Completion (Work Complete Date) for the project. A checkbox is available on the form to indicate if the inspection is for the final remaining project within a contract. If so, this date also represents the contract completion date and shall be entered into AWP as the Actual Completion (Work Complete Date) for the contract.
The inspection team should also list all known “exceptions” to the work. Exceptions are tasks or test/acceptance periods that are contractually allowed to occur beyond the contract time limits.
Examples of Common Exceptions:
- a) Acceptance of permanent seeding in accordance with Sec 805.4 (set a calendar reminder for this subsequent evaluation of final stabilization).
- b) Retroreflectivity measurements on pavement marking in accordance with Sec 620.2.3.
- c) Removal of Point of Presence signs approximately 90 days from the date of the Semi-Final Inspection (establish a 14-day window when you expect the signs to be removed).
- d) Acceptance of sodding in accordance with Sec 803.4.
- e) Maintenance of all temporary erosion & sediment control devices until final stabilization has been achieved.
- f) Removal of all temporary sediment control devices after final stabilization has been achieved.
- g) Final Plant Inspection (trees, shrubs, etc.) in accordance with Sec 808.4.3.
- h) Thirty-day test period for Traffic Signals in accordance with Sec 902.12.8.
- i) Fifteen-day test period for Lighting Systems in accordance with Sec 901.14.1.
- j) Fifteen-day test period for Navigation lighting in accordance Sec 901.6.5.
22.214.171.124 Partial Acceptance of a Portion of the Work
Prior to completion of the project, the contractor may request that the engineer inspect for acceptance specific portions of completed work. A list of eligible work items are listed in Sec 105.15.1. If the RE concurs that inspection and partial acceptance is warranted, acceptance of that portion of the work should be documented on the Semi-Final Inspection (C-236), except as otherwise allowed for Guardrail Acceptance. The limits of the accepted work should be clearly defined.
When a portion of the work is partially accepted, the Commission assumes responsibility for the cost of the repair should the work be damaged by the elements or by others after acceptance. However, if the overall project has not been finally accepted, the engineer retains the authority to direct the contractor to perform the needed repair or replacement of the damaged work. Payment for the repair or replacement of accepted work should be made at the contract unit prices. If total replacement is not required, other methods in Sec 109.4 can be utilized to determine the amount to be paid for the repair.
Partial acceptance should not be made for temporary work and no payment should be made for damage to items that are considered temporary work (e.g. temporary shoring, CMS boards, traffic control devices, temporary barrier, etc.) unless specifically provided in the contract (e.g. sand-filled attenuator replacements).
Contractors commonly request partial acceptance of completed sections guardrail. The accepted rail should be grouped into definable sections, as determined by the engineer, and not accepted per daily installation. In lieu of using the Semi-Final Inspection (C-236), it is acceptable for the RE or inspector to document guardrail acceptance by simply sending an Acceptance email notice to the prime while copying the guardrail subcontractor. The inspector should also note the acceptance in their daily work report in AWP. If the guardrail is subsequently damaged after partial acceptance, but prior to project completion, several options are available to complete the repair. A flow chart is available to guide the Resident Engineer with guardrail repair options.
126.96.36.199 Acceptance for Maintenance (Final Inspection)
The Resident Engineer, or designated representative, shall perform a final inspection after all corrections and exceptions are complete. The final inspection is to verify completeness of all items listed during the semi-final inspection. If no items were listed on the semi-final, then the semi-final is also considered the final inspection and dated as such. The date of the final inspection shall be noted on the Semi-Final Inspection (C-236). This is the date the Commission accepts responsibility for maintenance of the entire project (Partial Acceptance). When final inspection is made on the last remaining project in the contract, indicate this by checking the box on the inspection form and enter the date into AWP as the Final Inspection Date. The RE should notify the DCME (cc: DFP&RP) by email immediately following final inspection on all projects within the contract. Include a link to the completed Form C-236.
Upon notification from the RE that final inspection has been made on all projects within a contract, the DCME shall submit a letter to the contractor formally accepting maintenance of the project(s) in accordance with Sec 188.8.131.52. The letter should also request the final project documentation listed in EPG 105.15.2 Final Acceptance (these submittals are a contractual requirement per Sec 109.8, Sec 184.108.40.206), as well as any other absent documents, be submitted to the RE within 14 days (allow more time for large/complex projects) so that Final Acceptance can be made. An Acceptance for Maintenance letter is available. The DMCE may delegate issuance of this letter to the RE.
Final Inspection is also the date that starts the “clock” for final project close-out. MoDOT’s goal is to close out projects within 120 days of the Final Inspection. To keep on track towards this goal, the project office should have the as-built plans prepared and all project closeout tasks completed no later than eight (8) weeks following Final Inspection, or within four (4) weeks if the time between the Actual Completion (Work Complete Date) and Final Inspection is more than four (4) weeks. The RE then notifies the District Final Plans & Reports Processor (DFP&RP) that all as-built records are ready for review in eProjects. The DFP&RP should complete the district review within two (2) weeks of receipt and notify the CM Final Plans Reviewer the contract documents are ready for Division review. Preparation of as-built plans and other closeout tasks should not be delayed for such reasons as: waiting for the contractor to provide final documentation, waiting for exception periods, or delays due to other contract issues. Reference EPG 108.16 Project Dates for guidance on entering project dates into AWP.
105.15.2 Final Acceptance
Refer to Sec 105.15.2 for information regarding Final Acceptance of the project.
Following partial acceptance, the Resident Engineer shall verify that all quantities and adjustments are accurate and support the final payment estimate. The RE will either submit a final change order to the contractor for review, or, if no changes are necessary, will notify the contractor that no final change order will be forthcoming as all quantities have been confirmed as final. Either way, the contractor should be given the opportunity to review the final quantities and verify concurrence prior to declaring final acceptance.
Upon verification of the accuracy of final quantities and payment, and receipt of the required Final Acceptance documents listed below, the Resident Engineer shall recommend to the DCME that Final Acceptance of the contract (i.e. acceptance is for all projects in the contract) be made. Copy the District Final Plans & Reports Processor on this notification.
Per Sec 105.10.7, Final Acceptance should be made within 30 days of receipt of all final documentation. The Final Acceptance report is generally prepared by the District Final Plans & Reports Processor and presented to the DCME for signature. An auto-generated Final Acceptance Report (C-239), Cognos Report - AWP is available, or the report can be filled out manually using this Final Acceptance Report (C-239), pdf version. The DCME shall sign the report and submit to both the RE and contractor (or delegate that the RE forward the report to the contractor).
Final Acceptance Documents
The following documents are required prior to declaring Final Acceptance unless a waiver is otherwise approved by the Division of Construction:
- Contractor Affidavit Regarding Settlement of Claims, Form C-242
- Affidavit for Compliance with Prevailing Wage Law, Form PW-4 (from prime and all sub-contractors)
- DBE Participation List and Final Verification
- Materials Certifications and QC Testing Reports (uploaded to MoDOT’s external SharePoint site).
If the contractor is non-responsive, or otherwise refuses to submit the Final Acceptance documents, thus delaying project closeout, see EPG 220.127.116.11 for guidance on how to proceed.
18.104.22.168 Contractor Delays in Submittal of Final Acceptance Documents
If Final Acceptance is in delay due to the contractor’s failure to submit one or more of the Final Acceptance documents listed in the DCME’s Acceptance for Maintenance letter, the Resident Engineer should make every effort to obtain the absent documents from the contractor to keep project closeout on track (120 days maximum from Final Inspection to closeout). These efforts should include at least one verbal contact and one written request (email) to the contractor’s project manager. Following that, at least one verbal or written contact should be made to the contractor’s President or owner. Ask the reason for the delay and set a revised deadline for submittal. If these efforts do not produce results, proceed with the following action(s), as appropriate for the absent document(s):
Contractor Affidavit Regarding Settlement of Claims, Form C-242
Ask the contractor why they are not submitting this affidavit. Often the contractor is simply withholding the C-242 due to one or more financial disputes with subcontractors or suppliers. EPG 109.8 provides guidance to help facilitate a resolution, but project closeout should not be delayed. If pending creditor claims are determined to be the reason for the prime not completing the C-242, insist the contractor complete this modified Contractor's Affidavit Regarding Settlement of Claims (C-242) with Exceptions, which provides a field to list details of all unresolved claims. Send the Delay_C-242_Affidavit letter to the prime, if necessary. After receiving the completed C-242 (with exceptions) review the listed claim(s) to determine if they involve the Commission. If you feel they do, submit the completed C-242 (with exceptions) to the CM Liaison and inquire if project closeout should proceed. If the Commission is not a party to the dispute, submit the C-242 (with exceptions) to the DCME and recommend Final Acceptance be made (unless other final documents are also absent). If the prime is non-responsive or otherwise refuses to submit the C-242 for other reasons, the RE should proceed with completing the as-built documents and notify the District Final Plans & Reports Processor (DFP&RP) the project is ready for district review (unless other final documents are absent as well). Note the absent C-242 in the submittal letter and recommend Final Acceptance not be made until receipt of the C-242. The DFP&RP should proceed with the district review and notify the CM Final Plans Reviewer when ready for Division review, also noting that Final Acceptance has not been made due to the absent C-242. If the C-242 is still not received after District review, the DFP&RP should notify the CM Liaison. The CM Liaison will consult the State Construction Engineer to determine if Final Acceptance should be made and project closeout should occur without the C-242.
Affidavit for Compliance with Prevailing Wage Law (from prime and all sub-contractors)
A common reason for delay in submittal of all prevailing wage affidavits is a subcontractor’s refusal to send their affidavit to the prime. Subcontractors sometimes take this action as leverage to force the prime to settle an unrelated pay dispute. This strategy is counterproductive since the Missouri Prompt Payment law allows the prime to withhold retainage until the sub submits all required documents. If the RE learns of such a stalemate, he/she should inform the subcontractor they are in violation of Missouri Statute (Section 290.290, RSMo). According to the Missouri Department of Labor, “Failure to comply with the Prevailing Wage Law can result in civil action and in criminal fines of up to $500 and up to six months of imprisonment for each day there is a violation”. If the prime and/or sub continues to be non-responsive, the RE should send the Delay_PW_Affidavit letter to the prime and copy all subcontractors who have not submitted a signed affidavit. The RE should proceed with notifying the district the as-built documents are ready for review, noting the absent affidavit(s). The DCME should proceed with issuing Final Acceptance (assuming all other required documents have been received).
DBE Participation List and Final Verification
If the contractor is non-responsive or otherwise refuses to submit the DBE Participation List and Final Verification, the RE should send the final Delay_DBE_Verification letter to the contractor and copy the External Civil Rights director. The RE should proceed with notifying the district the as-built documents are ready for review, noting the absent DBE verification. Review of as-built documents should continue at the CM division level, but the DCME should not issue Final Acceptance and the project should not be closed out until the External Civil Rights director confirms a resolution of DBE requirements has been reached.
Materials Certifications and QC Testing Reports (uploaded to MoDOT’s external SharePoint site)
If the absent QC documents are from subcontractor work, contact the sub to find out the reason. If the sub is withholding the documents for leverage (see guidance above for absent Prevailing Wage Affidavits), advise the subcontractor of the fact that this action provides the prime protection under the Missouri Prompt Payment law. If the contractor or subcontractor is non-responsive or otherwise refuses to submit all required QC documents, consult the CM Liaison for direction on how to proceed. Deducts and/or further testing at the contractor’s expense may be in order prior to closeout. This issue can be avoided if the project office monitors QC submittals throughout the life of the project and withholds pay until the contractor submits the QC documents.
Final Change Order
If a final change order is necessary, and the contractor is non-responsive or otherwise refuses to sign it, the RE should make every effort to resolve the issue. Contact the DCME and CM Liaison for direction if a resolution cannot be reached. The Delay_Final_Change_Order letter may be appropriate if the issue is not resolved.
105.16 Controversies and Claims for Adjustment (Sec 105.16)
Refer to Sec 105.16 for information controversies and claims for adjustment.
Assure the contractor that project personnel are available and willing at all times to discuss and give decisions on all questions that may arise concerning interpretation of the plans and specifications. When agreement cannot be reached at the resident engineer level, inform the District Construction and Materials Engineer of the misunderstanding. If agreement cannot be reached at the district level, the disagreement should be referred to the State Construction and Materials Engineer, through the District Engineer. Personnel of Construction and Materials are available to attend any discussion of problems and assist in settlement of disagreements. If questions arise between the resident engineer and the contractor about established policy, design features or standardization of procedures, refer the matters to the District Construction and Materials Engineer for a decision. In all cases, immediately inform the contractor in writing of the final decision and that the problem may still be appealed to higher authority.
When it becomes evident that a claim will be filed, inform the district office at once and start preparation of a detailed record. The RE should thoroughly document all conversations and circumstances involving the dispute. Cover the situation in detail each day in the resident engineer's diary.
The following are guidelines that shall be followed by contractors in filing a claim with the Secretary of the Commission.
105.16.1 Procedures for Handling Contractor Claims
1. The claim is received by the Commission Secretary, logged in, and forwarded to Construction and Materials Division. The division is responsible for providing all required reports and other documents to the Claims Committee, which is comprised of the Asst. Chief Engineer - Chair, Chief Financial Officer, and a District Engineer appointed by the Asst. Chief Engineer.
2. CM Division reviews the claim for compliance with specifications and may consult with the Chief Counsel’s Office (CCO) regarding compliance with specifications relating to timely filing and sufficiency of the claim documents submitted.
The division provides a preliminary copy of the claim to the CCO and the Audits and Investigations Division (AI) to facilitate this review as a notice of issue and for informational purposes. CM will continue to evaluate if further evaluation is needed by AI or CCO. In all cases of federally funded projects, the Federal Highway Administration (FHWA) will be provided a copy of the claim and the letter to the contractor.
3. If the claim is accepted by the Commission, the division assigns a claim number (year, sequential number, district; example: 03-01-07) and assigns the claim to a claim reviewer (Reviewer) in the CM Division for review and evaluation. The claims reviewer is a Construction and Materials Liaison Engineer who has no previous extensive involvement with the issues presented in the claim. The liaison engineer’s goal is to provide an independent review of the facts and merit of the claim. The reviewer maintains all correspondence and documentation associated with the assigned claim.
CM Division advises the contractor by letter if the claim has been accepted and provides the contractor with the claim number and the reviewer’s name. If the claim is not accepted, CM Division advises the contractor by letter citing the reason(s) the claim was not accepted and provides a copy of the letter to the CCO and AI.
When notification of a claim is received the district personnel and Resident Engineers office should not discuss the claim with any outside parties. Any inquiries should be referred to the Chief Counsels office. All appropriate files, diaries, records, etc. should be assembled and stored in a safe location at the project office or district office.
4. Claims and controversies that qualify for Arbitration or Mediation (Sec 105) must complete the review process including final notification to the contractor within ninety days from date of receipt by the Commission Secretary. At that point the contractor is eligible to submit these issues to binding arbitration or mediation. For claims that exceed the amounts provided by the Arbitration and Mediation laws, the State Construction and Materials Engineer may extend the time for review in order to provide time to adequately review the claim. The review of these claims should not extend beyond twelve months.
5. The following time lines will apply to the normal claims process:
- a) CM shall notify the contractor of acceptance or denial of the claim upon completion of a review.
- The reviewer will meet with the contractor for the purposes of clarifying the claim and developing a better understanding of the contractor’s position regarding the claim. If required, a written request for the additional records will be made. If after this initial meeting with the contractor, the assigned reviewer determines there are grounds for a negotiated contract adjustment, the reviewer will obtain approval from the State Construction and Materials Engineer to proceed with the negotiations. This meeting should take place within 28 days of the acceptance of the claim.
- b) CM prepares a letter to the district, furnishing two copies of the claim (one for the District Construction and Materials Engineer and one for the Resident Engineer) for investigation and requests the district report to be submitted by a specific date. The district is further advised to retain all project records. The district report is prepared by the District Construction and Materials Engineer in consultation with the Resident Engineer Office directly associated with the claim. For claims on projects that have not been finalized, no adjustments to disputed items or time for completion of the subject project may be made without prior agreement with the State Construction and Materials Engineer.
- In concert, the district and resident engineer are to review the claim and provide both a report on the facts of the claim and a separate recommendation regarding settlement to the State Construction and Materials Engineer with 28 days of the date of acceptance of the claim.
- c) The district will submit the District Report to the claims reviewer on or before the date set by the division. A maximum of 28 calendar days will be allowed from the date of the letter of acceptance to the contractor. The first part of the report contains a factual analysis of the claim with no recommendation regarding disposition. This report should answer the claim in the same order or format as presented by the contractor. This is so that each allegation and response can be compared side by side. All allegations made by the contractor should be responded to. The second part of the report is a recommendation regarding disposition of the individual items in the claim.
- The reviewer will meet with the district to listen to their version of events after receiving the District Report. This meeting should be held after the contractor meeting. This should happen within 2 weeks after receiving the District Report.
- d) The reviewer will discuss the amount and complexity of the claim with the attorney assigned by the CCO for preliminary advice on additional research or evaluation is needed before proceeding. The reviewer will submit the Division Report within two weeks after the meeting with the district.
- e) The division final report prepared by the State Construction and Materials Engineer will be completed within 5 calendar days of receipt of the reviewer’s report. This report will be provided to the Claims Committee immediately upon completion.
- f) The Claims Committee meeting will be scheduled by the claims reviewer once the Claims Committee has received the Division Report.
- g) The contractor may have legal counsel present, but it is not required since this is not a legal proceeding. MoDOT will have someone from CCO present at the meeting. Their role is to advise the Claims Committed on the legal merits of the case. They will not be presenting or asking questions at the presentation. MoDOT personnel attending the claims committee meeting will be the reviewer, the State Construction and Materials Engineer, a representative(s) of the affected district (District Construction and Materials Engineer and /or Resident Engineer) and any other State Engineers that the Claims Committee Chair may deem necessary.
- The contractor will present their case to the claims committee. In the presence of the contractor, the reviewer, and other personnel deemed necessary will make oral presentations. The contractor may ask questions after the oral presentation and present any additional information as they wish. The Claims Committee will evaluate the contractor’s information and the information presented by MoDOT’s representatives. The Claims Committee will then make a decision regarding disposition of the claim (acceptance, partial acceptance, denial or the need for further deliberation) on the day of the meeting. The contractor will be given the option to remain in the building while the Claims Committee deliberates privately and will be advised of the Claims Committee’s decision if the individual remains.
- If the Claims Committee’s decision is to make an offer to resolve the contractor’s claim by negotiated contract adjustment, the reviewer and division engineer will determine the basis and amount of the proposed adjustment. If the Claims Committee approves the amount, the contractor will be advised by letter, prepared by the division, stating the basis and amount of the offered adjustment. If the Claims Committee decides to deny the claim or make a unilateral adjustment under the contract, the contractor will be advised by a letter prepared by the division. The Claims Committee Chair will sign each type of letter. Subject to Delegation of Authority limitations, noted in Commission policy, the claims committee may act upon concurrence of any two of the three member Claims Committee. The Claims Committee has 7 days from the date of the Claims Committee meeting to respond to the contractor with a final decision including any offer of a negotiated contract adjustment or directed equitable adjustment. The above letters will be reviewed by the CCO before mailing.
6. The Commission policy on settlement of claims will outline authorization levels.
7. Upon resolution of a claim that results in an award to the contractor, either by action of the Claims Committee, by court action, or by negotiating, the division will submit information to the FHWA, if federal participation is desired. The information to the FHWA shall be in accordance with Attachment “A”.
Attachment “A”, CONTRACT CLAIM PROCEDURES
|A. Contract Disagreements|
|1. Contract disagreements which are resolved informally between a contractor and Missouri Department of Transportation project or district personnel should be submitted to the Federal Highway Administration in the form of a change order for non-certification acceptance projects. Change orders for certification acceptance projects should continue to be approved by the Missouri Department of Transportation.|
|2. The change order should provide sufficient detail for the Federal Highway Administration to determine that the settlement between the Missouri Department of Transportation and the contractor is justified.|
|B. Formal Claims|
|1. If federal-aid participation is desired in a contract claim payment, early coordination between the Federal Highway Administration and the Missouri Department of Transportation is required for all claims handled through the Missouri Department of Transportation Claims Committee, or court adjudication.|
|2. If federal-aid participation is desired in a contract claim settlement for either a certification acceptance or a non-certification acceptance project, the Missouri Department of Transportation should transmit a copy of the contract claim, the legal and contractual basis for the claim, an analysis of the merits of the claim, and the results of the Missouri Department of Transportation Claims Committee review to the Federal Highway Administration Division Office for review and approval.|
|3. The Missouri Department of Transportation’s request for federal-aid reimbursement on an adjudicated contract claim award should include an explanation of the legal and contractual basis for the claim, the cost data and other facts supporting the award, and an audit by ABA or an independent consultant of the actual costs incurred by the contractor. A legal opinion from counsel should accompany claims with complex or novel legal issues.|
8. If the contractor provides written acceptance of the negotiated contract adjustment offer, Financial Services is notified of the amount with appropriate documentation and requested to process payment to the contractor. This completes the claim process.
9. If the contractor notifies the department that they do not accept the final negotiated contract adjustment offer, or if the contractor does not respond by the date given in the settlement offer letter, the claim will be closed and any unilateral adjustment determined appropriate will be made.
10. All notes and information gathered in the claims process are conducted in anticipation of litigation, to be privileged communications or work product of MoDOT’s or Commission’s representatives and shall also be considered government predecisional memoranda.
105.16.2 Dispute Resolution
The first step in resolving a contractor dispute is to gather information. The RE should sit down with the contractor and review all the information related to the dispute. Go in with an open mind. Too often people come into this meeting to defend their position instead of truly listening to the other person’s perspective. Resist the temptation to argue points of dispute at this meeting. The purpose of this meeting is to gather information and not to litigate the issue. This may sound basic, but it is invaluable when resolving conflicts because it helps to reveal the real issues.
22.214.171.124 Time-Related Disputes
If it is determined that there is time due to the contractor, then a method to determine the extent of time should be established. If it is a time delay, make sure the time adjustment is made immediately at the conclusion of the event that is being discussed. Do not wait until the end of the job to adjust days since contractors may be able to claim they incurred acceleration costs to complete the project by the original completion date. The time extension must be made by change order. Verbally telling the contractor is not binding and cannot be verified. A verbal commitment is not part of the official contract that the contractor must honor. Even if the contractor is ahead of schedule and will likely finish by the original completion date, the Resident Engineer will still need to write a change order for additional delays. Without a change order, the contractor may still claim acceleration costs.
Suppose there is a hard commitment on a deadline that cannot be moved. If this is the case, compensation to accelerate the project must be negotiated. If that amount cannot initially be agreed upon, then an agreement on what is compensable should be established, as well as a mechanism to track it. Once again, regardless of where contractors may be on their schedule, they will need to be compensated for acceleration to make up the days that are owed by contract if it really occurred. Do not pay for acceleration unless increases in premium time or other unforced increases in cost can be proven.
Time extensions may also affect any milestones that are on a project. These may need to be adjusted accordingly.
Delays caused by utilities are generally excusable but never compensable. Simply stated, additional time can be allotted, but not additional money. Other delays such as plan errors, differing site conditions, etc. could be compensable. Extended delays may result in higher costs to the contractor. Examples are labor increases, material cost increases, extended traffic control maintenance, equipment rental costs and jobsite office expenses. These delay costs can be extensive, especially on large-scale projects with high overhead and long periods of delays. A delay may push a job into winter or other time periods where critical path work cannot be performed or productivity rates are lower. Besides requiring additional time, this can also lead to additional costs incurred related to the delay periods.
The important thing is to research and determine whether the delay really did result in costs. Only verifiable, auditable costs should be considered.
Delays are very costly. A quick resolution to issues causing the delay is the best way to insulate a project from a large delay claim. Paying a premium to mitigate a delay impact will likely be a better value than paying for a delay claim. When a change order involves settlement and final resolution of an issue with the contractor or when there are concerns that the issue may come up again in a claim or lawsuit, the following language is recommended as part of the change order documentation:
- "The amount being paid to <Construction Company> in this Change Order represents a negotiated settlement and, as such, reflects payment of all claims of <Construction Company> and/or any of its subcontractors and suppliers direct and indirect, including all impacts therefrom starting from the date of execution of the contract until the execution by both parties of the Change Order. However, nothing in this Change Order affects <Construction Company>'s right to file a claim based on an occurrence after the date of this Change Order."
Note: Do not include the last sentence if the change order is final.
126.96.36.199 Compensation Disputes
If there is compensation due and agreed upon, a change order should be issued immediately. Any delay in payment could be subject to interest owed the contractor as a part of the Prompt Pay Act, RSMo 34.057 (which does not apply if there is a genuine dispute as to causation or amount). If there appears to be a pay dispute, begin keeping thorough records of labor, equipment and materials. It is very difficult to quantify this information after the fact.
Resolution of the entire issue on a single change order is ideal. This prevents someone from repeatedly coming back to request compensation for an item believed to be resolved with other items. The contractor is always paid what the engineer believes is owed. MoDOT will not be penalized for any delay in verifying or resolving disputes. Never pay any amount that is a compromise figure without including in the change order documentation the recommended language found near the bottom of EPG 188.8.131.52 Time-Related Disputes. Absence of this recommended language could impress a potential jury that the withheld amounts were held as undisputed hostage until the contractor capitulated on the remaining amount. Always be fair. If the contractors errantly do not request payment for something they are contractually owed, inquire why they did not. The goal is to pay what is contractually owed and not how little the issue can be resolved for. These good faith gestures will lead to a more timely resolution. This reduces time and expense for everyone and greatly reduces the likelihood that it will end up in litigation. Litigation is costly and time-consuming for all parties and should be a last resort.
105.17 Venue (Sec 105.17)
Sec 105.17 provides information on the venue of any legal proceedings that may be related to the contract.
105.18 Arbitration (Sec 105.18)
Sec 105.18 provides information regarding arbitration that may be related to the contract.
105.19 Digital Signatures (Sec 105.19)
Sec 105.19 provides for the use of digital signatures on contract documents so the documents may be created, exchanged, signed and stored electronically without the need for a paper copy.
A digital signature shall be used to sign a change order or value engineering proposal. Change orders and value engineering proposals must be converted to PDF documents for this process. The contractor must submit the digital signature certificate created by Adobe Acrobat to the Construction and Materials Division, prior to the digitally signing any document. The contractor must also submit a letter listing the individuals authorized to digitally sign on the contractor’s behalf. The letter and digital signature certificate will be considered in force on all the contractors’ contracts until modified or withdrawn.
Internal users must also submit the digital signature certificate created by Adobe Acrobat to the Construction and Materials Division, prior to the digitally signing any document, along with a letter listing the individuals authorized to digitally sign on the authorized signer’s behalf. The letter and digital signature certificate will be considered in force until modified or withdrawn.
The Resident Engineer, upon receiving the digitally signed copy of the change order or value engineering proposal, will save the change order in eProjects. The Resident Engineer can then open the file from its project location in eProjects and digitally sign the file, saving it back to that location. Change orders must also be processed in AWP because the digital signature process has nothing to do with AWP.
When working with the digital signature process, best practice is to launch Adobe Professional prior to doing any transaction. If the user simply clicks a link to a PDF file, the system may open the file with Adobe Reader, and a digital signature will not be possible.
For change orders that require additional approval levels, the Resident Engineer then creates an email, with a link to the file in the Contract Information Archive, and sends the email to the next approver (or assignee). The next approver opens the email, clicks the link to open the file, reviews the file, digitally signs and saves the file, then forwards the email to the next approver, or back to the Resident Engineer if there are no more approval levels required. For change orders that are electronically processed and approved above the Resident Engineer level, no paper is required.
The sequence of approval is: contractor, Resident Engineer, District Engineer, division engineer, Chief Engineer, FHWA. When appropriate, some approval levels may not apply, and the file may be sent directly from the highest required approval level to the FHWA (when the project is listed for federal involvement on Change Orders in the PODI Matrix). The Resident Engineer may delegate authority to process and digitally sign the file, however the Resident Engineer remains responsible for the contents of the file. Typically the District Engineer will delegate authority for this process to the district construction and material engineer. Typically the division engineer delegates authority for this process to the construction and materials liaisons.
The digital signature provides the printed name of the individual affixing the signature, and the date. It is not necessary to ink the date, the signature, or the printed name of the approver on the file. The point of this process is to eliminate a need for the document to exist as paper (other than the contractor’s copy, during the transition period). It is required that the digital signature include an image of the signature of the person technically responsible for the document. For example, the clerk may handle the logistics of placing the digital signature on the form, but an image of the Resident Engineer’s signature will be included.
See the Digital Signature QRGs for more detailed instruction.
105.20 Adjusting Water Service Leads
On certain projects, it is necessary to adjust privately owned water valves, meters and service leads. Such adjustments are often the responsibility of the property owner.
Contracts normally include bid items for the various types of adjustments but also allow the property owners to make the adjustments themselves. If the contractor performs the adjustment for the property owner, the contractor will be paid at unit bid prices and the property owner must reimburse the department for the cost.
As soon as all adjustments are made, the district should request Financial Services to submit invoices to the respective property owners involved. The district should provide Financial Services Division with a list of property owners making sure the list is accurate as to the responsible property owner and address. Show type of adjustment(s) for each property and the cost. The list should be provided as soon as all adjustments are complete and should not be held until the project is accepted. This will assist the department in its collection efforts since there is often a lengthy time lapse between adjustments and project acceptance.
105.21 Agreement for Shifting State Highway Entrance
Occasionally a property owner may request to shift a plan entrance on a project. If the entrance location is on limited access, it is necessary to handle the request in a specific manner in order to protect both the department's access rights and the property owner's legal access rights. No additions, deletions, or revisions should be made to entrances to condemned property or to controlled access right of way without written approval of the District Engineer.
When a request is received, it should be reviewed in the district by design, right of way, maintenance and traffic, as well as the construction office. If found acceptable to all departments, a standard "Agreement for Shifting State Highway Entrance" should be filled out by the district and executed by the property owner(s), along with the appropriate acknowledgments. (Refer to Agreement for Shifting State Highway Entrance, page 1, page 2, page 3 and page 4, Acknowledgment by Commission, Acknowledgment by Individual and Acknowledgment by Corporation.) In certain instances it may be necessary to prepare a special agreement to cover the conditions encountered. This may be done at the district level or by the legal division.
The district should submit five copies each of the agreement and sketches showing the plan and proposed location of the entrance to the State Construction & Materials Engineer. If the situation is complex, submit a copy of the deed. A letter of transmittal should include why the change is being requested, how it affects the department, will the change result in additional costs, and a recommendation by the district.
Upon receipt by the State Construction & Materials Engineer, the respective divisions in the central office are asked to review the request and provide their comments. After review by the legal division, the agreement will be presented for the Chief Engineer's consideration and approval. The agreement, if approved, will be returned to the district for recording. This process is often time consuming; therefore, the district should initiate the processing as soon as the request is made in order to alleviate any delays to the project. No changes in plan construction should be made until the shift agreement is approved.
Contracts involving changes in access in keeping with the Commission's policy for approving documents (Highways-Limited Access-Execution of Documents) advises that the Director, Chief Engineer, Chief Financial Officer, State Traffic Engineer or District Engineer can execute changes in access: however, deeds and/or other documents used to convey the property must be executed by the chair or vice-chair of the Commission.
105.22 Duties of the District Construction and Materials Engineer
The District Construction and Materials Engineer is directly responsible to the District Engineer and is expected to operate as the District Engineer's representative. All important decisions made by the District Construction and Materials Engineer must be with the full knowledge and consent of the District Engineer. How this mandate is carried out is at the discretion of the District Engineer.
When projects are advertised for letting, they are assigned to a Resident Engineer by letter so that project files contain a record of the assignment. This serves as the Resident Engineer's authority to incur engineering expenses. Copies of this letter are sent to Construction and Materials and to Communications. After the project has been awarded, the contractor is informed in writing of the name and address of the Resident Engineer to whom the work has been assigned. If, during the life of the project, it is necessary to reassign the work, the name of the new Resident Engineer is provided in writing to the contractor and copies of this letter sent to Construction and Materials.
The District Construction and Materials Engineer must direct work in a way that will keep engineer-contractor controversy and ill feelings to a minimum. This cannot be done by following a set of rules. If enough thought is given and constant effort is made to place authority and responsibility at the proper levels, a smooth-running organization will follow. When decisions can be made at the proper time and place, desired results should be realized.