Difference between revisions of "Category:108 Prosecution and Progress"

It is the responsibility of the contractor to furnish adequate forces for meeting specified project schedules as well as quality requirements. The resident engineer should bring unsatisfactory progress to the contractor's attention in writing. Send copies of such letters to the district engineer and Construction & Materials. If the contractor fails to respond in keeping with the intent of Sec 108, the matter must be brought immediately to the attention of the district office and the Division of Construction and Materials.

Support all time assessments by adequate diary entries. If a project goes into overtime, the diary should indicate whether each day would have been assessed if it were not in overtime. Review of project history must often rely heavily on diary information. On calendar day and calendar date projects, the diary entry should indicate whether the day would be charged as a working day. This is particularly important for days when the contractor does not work.

This article also discusses critical and key project dates and extensions or adjustments of time when progress is adversely affected by items beyond a contractor’s control.

108.1 Subletting of Contract (for Sec 108.1)

The prime contractor is obligated to do a significant portion of the work bid, as indicated in Sec 108.1.1. Any exception to this clause of the contract must be approved by the Division of Construction and Materials. EPG 105.9.17 Subcontract Approval Request has additional instructions for the resident engineer.

Specifications permit the contractor to arrange for work to be done by others under a subcontract agreement. This practice is limited to 60 percent of the contract value. Any proposed subcontract must be approved by the district office before work is performed on this basis. The 60 percent limit is determined on the basis of the subcontractural arrangement between the contractor and the subcontractor without regard to the bid price on the subcontracted items. A copy of the subcontract may be requested in accordance with Sec 108.1.3.

Most contracts with federal participation in the cost include a goal for the amount of work to be awarded to disadvantaged business enterprises (DBEs). The bidder is required to list the proposed DBE subcontractors and the amount of the subcontracts at the time of bid submission. If the totals do not meet or exceed the goal, the bidder must document all good faith efforts to meet the goal. After award of the contract, MoDOT's External Civil Rights division must approve any replacement of the DBE subcontracts. Compliance with the DBE goal is determined on the basis of the subcontractural arrangement between the contractor and the subcontractor. Additionally, the amount attributed to any given line item cannot be greater than the amount bid on that line item, and the subcontractor listed must be the same submitted at the time of bid. Note that compliance with Sec 108.1.1 and DBE goals are distinct issues and are based on different rules, as stated above.

In addition to the submission of the “Bidder’s Certification for DBE Program and Contract Goal” (electronic or by paper) at time of bid relative to the DBE goal, additional requests to sublet any and all work, including professional services, are to be placed on the Form C-220 and submitted to the resident engineer for processing. Approval by the district office must be obtained for all subcontract agreements.

If a contractor proposes a subcontractor who has not been previously approved for state highway work, the subcontractor must be approved by the construction and materials division, to confirm that the subcontractor is qualified by the Secretary of State to work in Missouri and has current applicable insurance.

Subcontracts may be approved at any time after the contract has been awarded, provided all insurance for both the prime contractor and the subcontractor are in proper order. Approval will be withheld if the form Subcontractor Certification Regarding Affirmative Action executed by the subcontractor is not attached to the C-220 form on federal-aid projects.

The Request to Subcontract Work (Form C-220) is available in Excel or PDF format for use by the contractor in seeking approval to sublet work. This form is completed by the contractor and submitted to the resident engineer for review. Except for sequential numbering, the contractor will complete the form to show the total for that subcontract. The resident engineer will review the form and enter the subcontract in SM. Any incorrect or incomplete forms will be returned to the contractor for correction. All correct copies are sent to the district office with the resident engineer's recommendation. The district office will enter the proper number, the "previous total", the "total to date", the "percent sublet" and the "total sublet" for the contract and will enter the approval date in SM.

If the total percent sublet to date should exceed 60% on any request, the resident engineer shall return the form to the contractor with a cover letter stating that approval is withheld because of failure to comply with Sec 108.1.1 relating to the amount of work which may be sublet. A copy of the letter should be sent to the district construction and materials engineer, and the Construction and Materials division should be notified.

If for any other reason the resident engineer cannot recommend approval of the request, a copy of the request should be sent to the district construction and materials engineer with a cover letter explaining why approval cannot be recommended. Otherwise, after the form has been checked and found to be correct, the resident engineer should sign and date in the space labeled Approval Recommended - RE and send a copy to the district construction and materials engineer for district approval. The project office enters the proper number, the "previous total", the "total to date", the "percent sublet" and the "total sublet" for the contract.

The project office shall review the form with particular attention to prices for partial performance of a contract item. If any price appears to be out of proportion to the work to be performed, but can be properly supported, supporting data should be attached to the form. Supporting data includes a copy of the subcontract document executed by the prime and the sub. Access to the subcontract document is specified in Sec 108.1.3 and it can be requested routinely. Invoicing and billing statements provide another means of determining the real value of work performed, when applicable.

The district construction and materials engineer signifies approval by signing on the line titled Approval Granted - DCME. If the district construction and materials engineer feels the subcontract cannot be approved, the form is to be returned to the contractor with a cover letter stating that approval is withheld and explaining why approval cannot be granted.

After approval or denial by the district, the form and any related documentation should be saved in the Contract Information Archive. This form and its instructions are illustrated at Request to Subcontract Work (Form C-220).

Work performed by the subcontractor will be recorded in SM daily on the DWR work items tab with the subcontractor designated on the contractor line.

For a DBE, the Subcontract amount indicated on the C-220 must be greater than or equal to the DBE Subcontract amount submitted by the Contractor with the Contractor’s bid submission prior to Award and the subcontractor must be the same listed. For a DBE, the Subcontract amount indicated on the C-220 cannot be more than the Contractor’s bid for the line item.

Sometimes the contractor will rent equipment from other contractors to perform work on the project. To avoid the possibility of unauthorized subcontracting, the payroll should be checked to confirm that the contractor is paying the wages of operators and supervision. Checking may also be accomplished during routine labor interviews by determining who pays the operator's wages. The findings of such checking procedures should be noted in the project diary. In lieu of such checking, the resident engineer may accept a written statement over the contractor's signature that all operators and supervisors are carried on the contractor's payroll. These procedures are not necessary for equipment rented from recognized rental agencies that are not also in the highway construction business. Further explanation of Owner Operator can be found in EPG 110.3.

Occasionally it becomes necessary for the contractor to terminate a subcontract. The Commission recognizes cancellation of previously approved subcontracts when the contractor provides:

a. A statement over the signatures of the contractor and the subcontractor that they have mutually agreed to cancel the subcontract, or

b. A certified copy of the contractor's written notice to the subcontractor of cancellation for cause.

After a subcontract has been cancelled, the percentages of work sublet to date should be adjusted. The work involved in the canceled subcontract quite often is proposed to be sublet again. If condition (a) or (b) has been met, the proposal should then be handled as a normal request for approval of subcontract.

If a DBE subcontractor is replaced, the new DBE subcontract must be approved by the External Civil Rights division.

If any subcontractor is replaced for any reason the existing subcontract item(s) of work for that subcontractor are removed from SM. Remarks indicating the reason for the revision are included in the record. No revision of the original C-220 is required. The new subcontractor shall be added using the normal C-220 subcontract process documenting the items of work to be performed except that the total amount subcontracted to date will be adjusted accordingly.

108.2 Notice to Proceed (for Sec 108.2)

Sec 108.2 provides information on notice to proceed. Early notice to proceed may be granted with the approval of the Division of Construction and Materials.

108.3 Prosecution of Work

Sec 108.3 provides information on prosecution of work.

108.4 Progress Schedules

Refer to Sec 108.4 for information on progress schedules.

108.5 Labor, Methods and Equipment

Sec 108.5 provides information on labor, methods and equipment.

108.6 Temporary Suspension of Work

Refer to Sec 108.6 for information on temporary suspension of work.

108.7 Contract Time for Completion of the Work

108.7.1 Extensions or Adjustments of Time

Secs 108.7 and 108.7 provide a basis for granting adjustments, suspensions or extensions of time when progress is adversely affected by items beyond the contractor's control. Sec. 108.7.1 covers extensions of time for calendar day or calendar date contracts and refers to weighted time tables on file in the office of the Commission. Weighted timetables (for contracts with and without time exclusions) and examples of proper use are shown in Tables 108.7.2 and 108.7.3 and EPG 108.7.4 Examples.

Such requests should be evaluated by the resident engineer and sent to the district engineer along with a detailed study and recommendation. The district may discuss the request with Construction & Materials before rendering a decision. The resident engineer, with concurrence of the district construction engineer, may make adjustments for errors in assessment of time. Requests from the contractor for major adjustments, suspensions, or extensions of time require thorough study by the resident engineer. In many cases the basis for the request is not subject to a clear-cut policy decision.

It is necessary that these procedures be followed to ensure uniform administration of the liquidated damage provisions of our contracts.

When it is not possible to grant the contractor's request, a thorough report should be sent to Construction & Materials to recover liquidated damages.

108.7.1.1 Assessment of Liquidated Damages and Exceptions

Assessment of liquidated damages are to be made for projects that are not completed within the allotted time. Also assessment will continue when work on a major operation is prevented by weather conditions, curing time, contract restrictions or for any other reason.

The two exceptions to this, when the contract is in overtime, are for the sod maintenance period and the traffic signal test period. Liquidated damages will not be charged during the 15-day signal test period unless a malfunction occurs. If such a malfunction does occur during the test period, liquidated damages are to be assessed from the beginning of the test period until the signals are back in service, at which time a new 15-day test period begins.

When these conditions exist, liquidated damages are to be assessed for each and every calendar day as specified in Sec 108.8.

For a combination of projects awarded as a single contract, the liquidated damages per day specified in the contract are to be divided equally among the projects that remain incomplete.

For example: Projects A, B, and C are awarded in combination as a single contract with liquidated damages of $3,000 per day specified in the contract. If all three projects are not completed within the allowed time, each project is assessed liquidated damages of $1000 per day. If Project A is completed but B and C remain incomplete, Projects B and C are assessed liquidated damages of $1500 per day. If Project C is completed before Project B, Project B is assessed liquidated damages of $3000 per day until it is complete. In this example, Project C would have two lines of different liquidated damage amounts per day on the estimate and Project B would have three lines.

Allocation of liquidated damages is made on the project distribution tab in SiteManager.

108.7.1.2 Consideration of Time Extensions or Suspensions

Contractors are presumed to have made provisions in their bids for any anticipated delays in procurement of materials. Contract time extensions or suspension of working days should not be based on unsupported claims of delays in delivery of materials. Consideration may be given to delays caused by unusual market conditions such as an industry-wide strike, natural disaster, or area-wide shortage that arises after award of the contract and prevents procurement of materials within the allowable time for contract completion. It will be necessary to evaluate any claim for time extension based on material shortages to determine if the delays were, in fact, beyond the control of the contractor or the fabricator.

108.7.1.3 Work Schedules

A work schedule shall be requested from all contractors after the award of a contract in accordance with Sec 108.4. The work schedule should indicate the working or calendar days, depending on the contract control, anticipated to complete the major items of work. The schedule should be reviewed from a production standpoint and be in sufficient detail to allow tracking of major work items. The schedule should provide for continuous prosecution of the work and completion within the allotted time. Approval of the work schedule may be by the resident engineer or the district engineer.

If the contractor falls behind schedule by 15 working or 30 calendar days without just cause, the resident engineer should write and request the contractor to expedite the work to the degree necessary to satisfy the approved work schedule or submit a revised work schedule for approval. The contractor should be requested to furnish this reply within ten days. If an unsatisfactory reply is received, the resident engineer should notify the district engineer.

The district engineer should write the contractor if the resident engineer receives an unsatisfactory reply or if the contractor falls 25 working or 45 calendar days behind schedule. The district's letter should request expediting the work, revised work schedules and include a reference to the applicable specifications concerning default and termination of a contract. Copies of the district's letters should be furnished to the resident engineer, the Division of Construction & Materials and the contractor's surety. The contractor should be requested to reply within ten days. If an unsatisfactory reply is received, the district should notify the Division of Construction & Materials.

If the district receives an unsatisfactory reply or the contractor falls 30 working or 60 calendar days behind schedule, the Chief Engineer will write the contractor requesting the work be expedited and a revised schedule furnished. The letter will also reference the default provisions and the possibility of the contractor becoming a "non-responsible" bidder for future work. Copies of this letter would be furnished to the district and the contractor's surety. The contractor would be requested to reply within ten days

If the contractor falls 40 working or 75 calendar days behind schedule, the Division of Construction & Materials will consult with the district and the Chief Counsel's office to consider the option of defaulting the contractor. Consideration will also be given at this time to recommending commission action declaring the contractor a "non-responsible" bidder for future work.

108.7.2 Table for Contracts with No Time Exclusion

108.7.3 Table for Contracts with Time Exclusion

108.7.4 Examples

Five examples are provided, below.

Example 1

Assume the following: Project costs overrun 2.6%. Contract completion date – September 1. Notice to proceed date – May 5. No time will be charged December 15 to March 15.

Example 2

Assume the following: Contract completion date – December 1. Project was delayed from July 10 through August 5. No time will be charged December 15 to March 15.

Example 3

Assume the following: Project costs overrun 2.6%. Contract completion date – September 1. Notice to proceed date – May 5. Time will be charged December 15 to March 15.

Example 4

Assume the following: Contract completion date – December 1. Project was delayed from July 10 through August 5. Time will be charged December 15 to March 15.

Example 5

Assume the following: Project costs overrun 10%. Contract completion date – October 1. Notice to proceed date – March 5. Working days allowed = 10. Weighted time table units available for project = 60. No time will be charged December 15 to March 15.

108.8 Liquidated Damages for Failure or Delay in Completing Work on Time

Refer to Sec 108.8 for information on liquidated damages. Instructions for handling milestone disincentives through SM are provided in the Milestone Incentives and Disincentives QRG.

108.9 Signal and Lighting Malfunctions

Refer to Sec 108.9for information on signal and lighting malfunctions, and what to do when an emergency repair is required.

108.10 Default of Contract

Sec 108.10 provides information on what constitutes a default of contract and related issues.

108.11 Termination of Contract for Convenience of the Commission

Refer to Sec 108.11 for information on the termination of a contract.

Guidance for Sec 108.11.2 Settlement Provisions (Particularly Settlement for Left-Over Material on a Construction Project)

When contract pay items are eliminated from the contract, the Resident Engineer should notify the contractor in writing as soon as possible so that the contractor can stop any unnecessary material purchases. If the material is delivered prior to notification, use the following guidance to settle the cost of returning or purchasing the material. If the cost of the material is significant, consult with the District Construction Engineer to discuss whether this resolution is appropriate.

1. Request that the contractor make every effort to return the material to the supplier. We should avoid adding inventory items to MoDOT maintenance lots if at all possible. Make payment to the contractor for the shipping cost, return shipping cost, plus any restocking fee charged by the manufacturer. To this total, add an amount equal to 5% of the invoice cost of the material to cover the contractor's general overhead expenses.

2. If the manufacturer will not accept the return, a negotiated settlement with the contractor can be made such that the contractor retains the material at the salvage value.

3. If the material cannot be returned or retained by the contractor, purchase of the material can be made. Delivery of the material should be made to the local maintenance facility. For this option, payment should be made to the contractor for the invoice cost of the material, plus 5% for overhead, plus shipping cost, plus any cost incurred by the contractor for delivering the material to the maintenance lot.

108.12 Notice to Contractor and Surety

Refer to Sec 108.12 for information on notice to the contractor when a contract has been terminated or default has occured.

108.13 Termination of Contract for Misconduct

Refer to Sec 108.13 for information on termination of a contract for misconduct.

108.14 Determination of Compensation and Contract Time Extension for Excusable, Noncompensable and Compensable Delays

Refer to Sec 108.14 for information related to delays in completing the work.

108.15 Suspension of Work Directed by the Engineer

Refer to Sec 108.15 for information related to a suspension of work as directed by the engineer.

108.16 Project Dates

Project dates are divided into two groups: critical dates and key dates. Critical dates are typically those dates that are needed on a department-wide basis while key dates are those dates that are needed only within Construction and Materials. The SM construction management system includes a set of critical dates that cannot be modified. Since the included dates are intended to be generic and meet the needs of multiple agencies, not all dates are used by MoDOT.

A sample project timeline includes most of the project dates.

108.16.1 Critical Dates

Critical dates can only be modified by system administrators except for the dates on a MoDOT specific screen in SM presented to the user when an estimate is generated.

Critical dates (listed in order of presentation in SM) and their definitions are:

1. Letting Date (LETD) - The date on which bids for the project are accepted and opened publicly by MoDOT.

2. Award Date (AWRD) - The date of action of the Commission accepting the bid of the lowest responsible bidder for the work, subject to the execution and approval of a satisfactory contract therefore and bond to secure the performance thereof, and to such other conditions as may be specified or as required by law.

3. Signed Date (SIGN) – This date (generally not used) comes from the pre-construction system used by the Design Division and cannot be modified in SM.

4. Execution Date (EXEC) - The date that the contract has been signed by all parties and approved by the Chief Counsel's Office. The contractor has 15 days from award to return an executed contract for execution by the commission. The actual execution date can be more or less than 15 days after award based on the time the contractor takes to return the contract and the time for review and execution by the commission.

5. Notice to Proceed Date (NTPD) - The date on or before which prosecution of the work is to begin. This date is specified in the contract and is generally about 60 days after letting. If the contractor does not begin work by this date, the count of working days begins on this date. If the contractor starts before this date, the count of working days begins when the contractor starts work.

6. Price Adjustments Base Date (PAJB) – This date is used only for fuel adjustments. The base date for fuel adjustments is the first day of the month in which the project is bid.

7. Checked Out to Field Date (CKDO) – This date is added by the system when a contract is pipelined for use on SitePad.

8. Work Begin Date (WKBG) - Date on which work first began on the project. May not be the same as the Notice to Proceed date. Entered by the Project Office.

9. Contractor Bankruptcy Date (BKDT) – In the rare instance when a contractor declares bankruptcy during a contract, this is the date that the department receives notice of the bankruptcy.

10. Contractor Default Date (DFLT) – If a contractor’s performance on a project leads to the Commission declaring the contractor in default, this date is the date of the Commission’s action declaring the default.

11. Open to Traffic Date (OPTF) - The date the pavement is opened to public traffic. For new construction, the date that the most significant portion of the project was opened. For construction under traffic, the date when the final driving surface of the most significant portion of the project was opened to public traffic. For construction that did not interrupt the traffic at all and did not create a new driving surface, Open to Traffic Date would be set to match the Notice to Proceed Date. Entered by the Project Office.

12. Substantial Work Complete Date (SWKC) - The date that is populated in SiteManager when Partial or Final Acceptance of the project is made. This should be the date that all corrections noted on the last semi-final inspection have been completed. Exceptions may not be complete at this time. This is the date that the count of time (and, therefore, liquidated damages) stops. Entered by the Project Office.

13. Physical Work Complete Date (WKCM) – This date is to be entered only by the final plans reviewer or system administrators. This date will lock all quantities and no additional quantities can be entered. This is the date that all work has been completed on the project. The contractor will not have equipment or personnel on the project after this date. Entered by Central Office.

14. Original Completion Date (ORGC) - The date specified in the contract for completion of the work if a date is specified or the date computed by adding the number of calendar days allowed to the notice to proceed date if calendar days are specified. There is no Original Completion Date for contracts administered by working days.

15. Adjusted Completion Date (ADJC) - The date computed by adding any allowed time extensions to the Original Completion Date. There is no Adjusted Completion Date for contracts administered by working days.

16. Accepted Date (ACPT) - Sec 109.8 (Final Acceptance and Payment) details the requirements for Final Acceptance. Basically, this is the date when all contract requirements have been completed by the contractor and all materials inspections have been verified by the engineer. Final acceptance will take place within a maximum of 30 days of receipt of final documentation from the contractor. While the specifications allow this to occur up to 30 days after final documentation is received, it should be done as soon as possible after receiving final documentation. The 30 days is to provide time for verifying the contractor's submittals. Entered by Central Office.

17. Assigned to Field Manager (FMEX) – Field Manager is a companion product to SiteManager that MoDOT does not use. This date is not populated.

18. Contractor Final Release Date (FREL) – This is the date that the final plans are passed for payment and the contractor’s bond is released. Entered by Central Office.

19. Contract Archived Date (ARCH) – This is the date that the contract data is removed from the active SM database and stored in an archive database.

108.16.2 Key Dates

Key dates are defined by each agency using SM and may be used for any purpose. MoDOT has decided to use these dates for tracking the final plans process.

The person(s) responsible for entering the key dates and their definitions follow.

1) SRI – Project Completion. This date was entered by the project office and indicated that a project in the “Smooth Roads Initiative” had been substantially completed. SRI was completed in 2006. This date is no longer used.

2) Partial Accepted for Maintenance. This date is entered by the project office.

Partial Accepted for Maintenance, for the purpose of this key date, is entered when there are “Exceptions” noted on the “Semi-Final” inspection. An exception is a deficiency noted on an inspection of the project that involves an item of work that was not on the original contract or one of the following:

a. Overseeding

b. Traffic Signal test period

c. Specified growth period for section 800 items.

Exceptions should not be used for items of work included in the original bid except as noted above.

When all corrections have been completed and only exceptions remain, the project can be “partially accepted.”

3) Date of Final Inspection Sec 105.10.7 (Final Inspection) details the requirements for the Final Inspection. If all construction is completed to the engineer’s satisfaction at this time, without any corrections, this inspection is the Final Inspection. If corrections are outstanding, this is the Semi-Final inspection. The contractor is relieved of any further maintenance upon completion of the Final Inspection. This may also be the Substantial Completion date in SM. This date is entered by the project office. This is when the “clock” starts for the completion of the Final Plans. Final plans and materials summaries are due six (6) weeks after Final Inspection on small projects and eight (8) weeks after Final Inspection on large projects. A small project is one that is both less than one million ($1,000,000.00) dollars and has less than forty (40) bid items. The Project Office must supply the District Office with the Final Plans and Final Acceptance or an explanation of what and why the Final Acceptance is held up. If there are exceptions on a project and the exceptions extend beyond the six (6) or eight (8) week final plans preparation time, final plans will be due four (4) weeks after completion of the exception. Failure of the contractor to provide final documentation or awaiting resolution of exception is not sufficient reason to delay work on final plans. Final Plans work must be prosecuted as fully as possible prior to receiving finaldocumentation from the contractor. The time allowed following the completion of an exception is soley intended to accommodate the prime contractor’s finalization and submission of documentation as delayed by the exception, and the district’s final plans preparation specific to the exception. Entered by the Project Office.

4) Project Data ready for Materials Summary. This date is entered by the project office when the last change order is approved or when it is determined that the current contract quantities are final. The date is used to notify district materials personnel that the materials summary may be completed. Entered by the Project Office.

5) Survey Plans Recorded. In the case where right of way (R/W) was acquired for the project, this date is entered by the project office or other appropriate entity in the District Office upon notification that R/W survey(s) have been legally recorded.

6) Date Final Plans Recvd at District. This date is entered by the District Final Plans and Reports Processor to indicate that the project office has completed the final plans and they have been received by the district office for checking.

7) Date Final Plans Received at Central HQ. After the district completed their check of the final plans and submits them to Central Office for review and processing, the Final Plans Reviewer will enter this date to indicate the plans have been received in the main office.

8) Date Final Plans Check is Complete. The Final Plans Reviewer will enter this date after completing the review of the final plans and passing them for final payment.

9) Plans Sent to Design. The Final Plans Reviewer enters this date when the final plans are sent to the Design Division for archiving.

10) Date of Materials Summary. Entered by District Materials when the materials summary is completed.

11) Materials Summary Submitted to HQ. When the materials summary is completed and submitted to Central Office, district Materials will enter this date.

12) Materials Summary Received by HQ. Entered by the Division of Construction and Materials when the materials summary is received from the district.

13) Bridge Certifications Received. When Bridge has checked and approved all bridge materials and notified the Division of Construction and Materials that all bridge materials are approved, the Division of Construction and Materials will enter this date.

14) Materials Summary Approved by HQ. Entered by the Division of Construction and Materials after the materials summary is approved.

15) Date Sent to DBE. The Final Plans Reviewer enters this date when the final plans are sent to External Civil Rights for their review.

16) Date Received From DBE. The Final Plans Reviewer enters this date when the final plans are received from External Civil Rights after their review.

17) Date of FHWA Final Reim. This date is entered by the Construction Reports Processor when the final reimbursement is received from the Federal Highway Administration. This date may be quite some time after project completion.