Construction Manual  

SECTION 108 - 2018 STANDARD SPECIFICATIONS

2018 STANDARD ROADWAY DRAWINGS

108-1 GENERAL

The Contractor is responsible to begin work either on the date of availability or within a reasonable time thereafter and pursue the work diligently with such forces as will enable him to complete the project by the completion date. The importance of this requirement lies in the fact that the Contractor's failure to comply with these provisions may be grounds for forfeiture of extensions in the completion date to which he might otherwise be entitled, (See Article 108-10 ​of the Standard Specifications and this Manual,) the withholding of liquidated damages from monies due and/or the removal of the Contractor from the Department's list of prequalified bidders. If the Resident Engineer determines the Contractor will not be able to complete the project by the completion date, he shall advise the Contractor of this determination in writing and during construction conferences (See Article 108-4 of the Standard Specifications). When discussed at construction conferences, specific written documentation shall be made a part of the construction conference minutes. This will provide the Contractor an opportunity to rebut and provide documentation of extenuating circumstances during the course of the work. The Resident Engineer shall also indicate "Unsatisfactory Progress" in the project diary.

 

The Contractor may begin work on the project prior to the date of availability if a progress schedule has been submitted and approved; however, consideration should be given to the effect that beginning prior to the date of availability will have on the public and cost to the Department. Allowing work to begin prior to the date of availability without a change in the completion date is essentially an extension of the completion date.

 

As soon as practical after the Contractor initially begins work on a project, the Engineer shall notify the Contractor in writing, with copy to the State Construction Engineer, when the estimate period ​ends. This notice shall also include the date work began.

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108-2 PROGRESS SCHEDULE

After the award of the contract, the Contractor shall submit a progress schedule to the Engineer no later than 7 days prior to the preconstruction conference. The progress schedule shall consist of a time scale diagram with major contract items and milestone dates clearly labeled and a narrative explaining the construction sequence. The time scale diagram shall be submitted on forms supplied by the Engineer or in a format that is approved by the Engineer. A detailed Critical Path Method (CPM) schedule shall not be submitted to replace the progress schedule details required below. (See Records and Reports Section of this Manual for examples of both the time scale diagram and written narrative.)

 

The purpose of the schedule is to provide Department personnel with the Contractor's general plan, and to assist in determining, during the course of the work, whether the Contractor's progress is satisfactory or unsatisfactory. The latter determination directly affects the Contractor's status on the prequalified bidders list. (See Article 108-8 of the Standard Specifications.)

 

Approval or disapproval of the schedule is the responsibility of the Division Engineer. In making this decision, he should consult with the Resident Engineer. Consideration should be given to: (1) the compatibility of the progress schedule with the construction schedule in the case of separate contracts requiring Construction Schedules; (2) a mathematical check of the percentages; (3) compliance with the terms of the contract; and (4) reasonableness and practicality of the schedule.

 

Any acceleration of the progress, as shown by the contractor’s progress schedule over the progress shown in the “Schedule of Estimated Completion Progress” in the contract shall be subject to the approval of the Engineer.

 

The Division Engineer should notify the Contractor in writing of his approval or disapproval of the schedule, with copies of the notification and progress schedule sent to the Resident Engineer and the State Construction Engineer.

 

The Specifications allow the Contractor to submit a revised progress schedule if the Engineer has extended the contract completion date or the project overrun is anticipated to exceed 5%. Regardless, the schedule must reflect completion of the work by the revised completion date. The Specifications also allow the Contractor to submit a revised progress schedule if plan revisions are anticipated to change the sequence of operations in such a manner as will affect the progress but not the completion date. In this case, the Contractor may submit a revised progress schedule for review and approval but the completion date shall remain unchanged.

 

The Contractor's detailed request and proposed schedule, together with the approval from the Division Engineer, shall be uploaded into SharePoint .

Progress Payout Schedule

 

Projects with a contract amount greater than $50 million, the Contractor is required to submit an Anticipated Monthly Payout Schedule (Payout Schedule) prior to beginning construction. The payout schedule is used by the Department to monitor the funding levels of the project. The Payout Schedule shall provide a monthly percentage breakdown of payouts, based on the contract amount of anticipate completed work. The Payout Schedule should cover the anticipated work from the date the Contractor plans to begin construction to the anticipated completion date. The Contractor is required to submit updates of the Payout Schedule on March 15, June 15, September 15 and December 15 of each calendar year until the project has been accepted. The Contractor should submit the original Anticipated Monthly Payout Schedule and each quarterly update to the Resident Engineer and a copy to the State Construction Engineer.

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108-3 PRECONSTRUCTION CONFERENCE

For detailed information and examples for the Preconstruction Conference see the Records and Reports Section of this Manual.

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108-4 CONSTRUCTION CONFERENCES

For detailed information and examples for Construction Conferences ​see the Monthly Meeting in the Records and Reports Section of this Manual.

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108-5 CHARACTER OF WORKMEN, METHODS, AND EQUIPMENT

The Contractor is required to provide sufficient personnel and equipment to complete the work in accordance with the contract. He is prohibited from employing anyone determined by the Engineer to have engaged in fraudulent activities. Determination that an employee has engaged in fraudulent activities is a very serious matter and will be made by the Chief Engineer-Operations after consultation with the State Construction Engineer.

 

The Engineer has the authority to have removed from the project any employee of the Contractor or Subcontractor who "does not perform his work in a proper and skillful manner or is disrespectful, intemperate, or disorderly" should this problem arise, consideration should be given as to whether the circumstances affect the quality and/or progress of the work or the safety and well-being of project personnel. When any one of these proves to be the case, then every means possible should be explored to resolve the matter at the project level without resorting to personnel removal. If the problem persists, the Resident Engineer shall prepare a complete written report to the Division Engineer. The Division Engineer shall make the final decision in the matter keeping the Chief Engineer currently advised as to the status of the situation.

 

The Engineer also has the authority to have equipment removed from the project which does not produce satisfactory quality work or which may cause "damage to the roadway, adjacent property, or other highways" Prior to ordering the removal of equipment due to the above cause, the Resident Engineer must have some documentary or Specification evidence to support his actions. This may include, but not be limited to, the following:

 

If the Engineer has any questions as to whether equipment should be removed, he may seek the advice of the field representative of the Roadside Environmental, Materials and Tests, and Geotechnical Units, and/or the appropriate Area Construction Engineer.

 

Where practical, the Specifications are written as an "end result specification." That is to say that methods, equipment, and procedure are left to the Contractor's ingenuity with the basis of acceptance being recorded tests results and visual examination of the finished product. This places an increased responsibility on the Engineer and Technician to see to it that sampling, testing, and inspection procedures are strictly adhered to. The Engineer and Technician must thoroughly familiarize themselves with the Specification requirements for acceptance of these items so that they can confirm whether or not the Contractor's procedures are producing a satisfactory end product.

 

The Specifications also provide that where methods, procedures, and equipment are specified, the Contractor may change these with no revision in the contract unit price if approved by the Engineer. If such a request is made by the Contractor, the Resident Engineer should first make his own determination as to whether the revised procedures would (1) result in a satisfactory end product, (2) provide access for proper inspection, sampling and testing, and (3) not adversely affect any other operations. He should then transmit the Contractor's request together with his recommendation to the Division Engineer and the Area Construction Engineer for further handling with the State Construction Engineer. In the case of minor or emergency changes, approval may be secured from the State Construction Engineer by telephone.

 

The Contractor's procedures must produce a finished product that conforms with the terms of the contract.

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108-6 SUBLETTING OF CONTRACT

The Contractor is permitted to sublet a portion of the work when approved in writing. The Contractor is required to perform not less than 40% of the total original contract amount with his own organization, except when specialty items and Disadvantage Business Enterprise/Minority Business/Women Business goals are included in the contract. The Contractor is not permitted to perform less than 35% of the difference between the original bid amount and the value of the specialty items. Materials purchased by the Prime for the subcontractor cannot be counted as work performed by the Prime.

 

The Contractor is required to submit a Subcontract Approval Form (SAF) to the Resident Engineer or Contract Administrator for each subcontractor and/or second tier subcontractor. Submittals of all proposed subcontractors shall be submitted to the Resident Engineer or Contract Administrator within 30 days of the contract date of availability or expiration of 20% the original contract time, whichever time is greatest. The early submission of the Subcontract Approval Forms allows the Resident Engineer or Contract Administrator to monitor the percentage of work being self-performed by the Prime Contractor from the beginning of the project.

 

Other requirements of the subletting work are as follows. The subcontractor and/or second tier subcontractor submitted must currently be a prequalified contractor or subcontractor. Use the Directory of Transportation Firms, located on the NCDOT web page, to verify the subcontractor’s prequalification status. Resident Engineers should request the actual executed subcontract agreement​ for 10% of the contracts, with a minimum of 2 to verify that the subcontract meets the requirements of FHWA (if federally funded) and Title VI.  Projects with federal funding are required to have both the FHWA 1273 ​"Required Contract Provisions" and the Title VI ​and Notice of Nondiscrimination language, in their entirety, as part of the actual subcontract agreement.  The actual subcontract agreeements for state funded contracts are required to incoporate the Title VI and Nodiscrimination language as part of the actual subcontract agreement. 

 ​

Failure to comply with the requirements of the Specifications of this article may be justification to remove the Contractor from the Bidder’s List.

 

Additional information regarding subletting of the contract, calculating percent performed by Prime, FHWA 1273, and the SAF can be found in Records and Reports section of this manual.

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108-7 TEMPORARY SUSPENSION OF THE WORK

The Engineer has the authority to suspend the Contractor's operations. No extension of the completion date is allowed due to the suspension except as provided in Article 108-10 of the Standard Specifications. The Engineer should make his decision to suspend operations after all other means to resolve the problem have been exhausted.

 

Except in emergency situations, the Engineer shall consult with the Division Engineer and the Area Construction Engineer before suspending the work. If a suspension order is imposed, the Engineer shall notify the Contractor and the Division Engineer in writing with a copy to the State Construction Engineer.

 

Article 104-4 of the Specifications outlines the conditions for additional compensation when the Contractor experiences idle equipment and/or idle labor during a suspension or alleged suspension.

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108-8 FAILURE TO MAINTAIN SATISFACTORY PROGRESS

This article of the Specifications defines unsatisfactory progress on the part of the Contractor and sets forth the sanctions that may be invoked for unsatisfactory progress.

 

The procedures for computing the percent of contract time and current contract amount required under this article are included as a part of the procedures for preparing monthly estimates in the Records and Reports ​Section of this Manual. HiCAMS will calculate the percent of work complete.

 

The decision to withhold anticipated liquidated damages from partial pay estimates will be made by the State Construction Engineer. The Resident Engineer should make his recommendation on the liquidated damages tab of the partial pay estimate that indicates unsatisfactory progress. For the Department policy relative to the withholding of anticipated liquidated damages, see Article 108-11 ​​of this Manual.

 

The intent of the  procedures is to enhance our project management with regard to project completion and to have effective communication start earlier between the Department and the Contractor as projects begin to fall behind schedule. The revised procedure states that when five percent (5%) of the contract time has expired or when a project is 10% behind schedule, by time or money, the Division Engineer writes a “Letter of Concern” to the Contractor. The letter should establish a meeting date between the Division Engineer and the Contractor to discuss the project schedule and require the Contractor to provide written explanation of how the project completion date will be achieved. If the Contractor’s progress then becomes 15% or greater behind schedule, the State Construction Engineer will write the Contractor a “Show Cause Letter”. This letter will establish a meeting between the State Construction Engineer, the Division Engineer and the Contractor. The letter should require the Contractor to provide written explanation of how the project completion date will be achieved and why the contractor should not be removed from the NCDOT Prequalified Bidders List.

 

The Chief Engineer will make the final decision as to whether a Contractor shall be removed from the Department of Transportation's list of prequalified bidders.

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108-10 CONTRACT TIME

(A) GENERAL

By definition, contract time is "the number of calendar days inclusive between the date of availability and the completion date, as set forth in the special provisions, including authorized extensions to the completion date." The Engineer shall be familiar with all aspects of these provisions of the Specifications.

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(B) COMPLETION DATE, INTERMEDIATE COMPLETION DATE, AND INTERMEDIATE COMPLETION TIME EXTENSIONS

It is the policy of the Department to fairly evaluate the Contractor's requests for extensions of completion dates. The Department should review within forty days any request submitted by the Contractor for extension of contract time and notify him of the determination in writing. It is not acceptable to delay making a decision until it can be determined whether an overrun of the contract time will occur as this delay may require the Contractor to incur additional cost in an effort to complete the work by the original completion date. The following represent guidelines to assist in determining whether there are valid grounds for extending the completion date. These are numbered in the same sequence as outlined in the Specifications.

 

1. This item provides for what is commonly referred to as pro rata extensions of the completion date or intermediate completion time. The extension allowed is directly proportional to the percentage of the adjusted dollar value overrun (contractual overrun) of the contract.

 

  

2. Extensions of time as allowed by supplemental agreements for performing extra work may also be extended by pro rata calculations. A similar calculation may be used relative to intermediate completion times. In this case it is necessary to make a quantity takeoff to determine the dollar value of work originally contemplated in the intermediate phase and the final dollar value of the work. The intermediate contract time to be pro rated is determined from the special provisions. A copy of these quantities and extension of the amounts shall be submitted with the final estimate.

 

 

     

The current controlling operation must have been delayed. Current controlling operation is defined as "any operation or operations, as determined by the Engineer, that if delayed would delay the completion of the project." This determination will necessitate a thorough review of the status of the project at the time the alleged delay occurred.
 
Consider a project involving only fine grading and base course construction. The fine grading operation is a controlling operation until such time as a sufficient length of the project has been fine graded such that the Contractor might reasonably be expected to commence base course operations. From that point on, any delay that would subsequently delay the base course operations would be delaying the completion of the project. Of course, very few circumstances are as simple as the one described above. However, using this principle with sound Engineering judgment will result in decisions that are equitable to both the Department and the Contractor. There will be instances where more than one operation may be considered a controlling operation. In any event, it must be shown that the completion of the project was delayed before the affected operation can be considered as a controlling operation.
 
The delay to the controlling operation must have developed from circumstances originating from the work required under the contract. In effect this requirement invalidates any request from the Contractor arising from delays on other projects or from any other delays whatsoever except those attributable to work required by the contract. 
 
The Contractor must have pursued the work in accordance with Article 108-1 of the Standard Specifications. Article 108-1 of the Standard Specifications provides that the Contractor must pursue the work diligently and with sufficient workmen, equipment, materials, and methods as may be required to complete the project by the completion date. 
 
Any delays must have been caused by circumstances beyond the Contractor's control and without his fault or negligence. Examples of "circumstances" which may be valid under this provision would include, but not be limited to, the following: 

Plan revisions originated by the Department of Transportation.  
 
Revision of material requirements originated by the Department of Transportation.  
 
Department of Transportation stakeout error.  
 
Failure of the Department of Transportation to provide stakeout at the appropriate time.  
 
Failure of the Department of Transportation to approve required shop drawings submitted by the Contractor within a reasonable period of time.  
 
Failure of the Department of Transportation to provide inspection of the work and/or materials within a reasonable period of time.  
 
Failure of the Department of Transportation to secure right-of-way except as may be described in the Project Special Provisions.  
 
Failure of the Department of Transportation to provide a reasonable work site by the contract date of availability.  
 
Acts of God (See Article 101-3 of the Standard Specifications.)  
 
Actions or inactions on the part of another Contractor performing work for the Department of Transportation within or adjacent to the project.  
 
Strikes by the Contractor's forces or those forces of material producers, fabricators, haulers, etc.  
 
Freight Embargoes  
 
Shortage of materials due to national emergency or general industrial conditions.  
 
Utility conflicts to be resolved by others and the operations by others of removing and/or adjusting said utilities if the time involved is beyond that which might have been reasonably anticipated.  
 
Weather conditions as permitted within the text of this Specification article.

Actions or inaction on the part of Subcontractors  
 
Labor shortages  
 
Local material shortages  
 
Failure on the part of material suppliers to supply materials at an anticipated rate or quantity except as may be allowed under (K), (L),and (M) above.  
 
Equipment breakdowns 

   

Example: A project provides for the widening of an existing road from a two lane section to a five lane section. The project is located in an urban area and several utilities exist along both sides of the roadway.

 

The Project Special Provisions state the aerial telephone and electrical lines will be relocated prior to the date of availability. The Project Special Provisions further state the Contractor will work around the existing water and sewer lines and make tie-ins as necessary.

 

Upon the date of availability, the electric company has installed new poles and moved their lines. However, the telephone company has not yet moved their lines to the new poles. The Contractor elects to begin work despite having to perform his clearing and grubbing operation around the existing aerial utility lines. The Contractor submits a request for an extension in contract time due to having to work around the existing utilities.

 

After determining the Contractor’s controlling operation for the period of the alleged delay, the Engineer must determine whether this operation was delayed as a result of the utility conflicts. Judgment must then be used to determine how the utility conflict affected the Contractor’s operation. Upon reviewing the diary, the Engineer can make an estimate as to the percentage the Contractor’s controlling operation was delayed. This percentage should then be applied to the total calendar dates the controlling operation was performed while delays were existing (including weekends, holidays, and wet weather when the Contractor was not working) to determine the extension in contract time due the Contractor.

 

As an exception to these requirements, extensions in contract time may be granted without a written request from the Contractor when delays have occurred that are clearly beyond the Contractor’s control and without his fault or negligence and these delays are documented in the project records. The Engineer may initiate an extension in contract time when in his opinion such an extension is justified. It is the Engineer’s option to require the Contractor to submit his request in writing. When the Department has not extended the completion date or completion time and the Contractor believes an extension is warranted, it is the Contractor's responsibility to make the request.

Example: The Contractor completed all known work on July 1st. Because of scheduling conflicts, the Department was unable to hold the final inspection until July 7th. During the final inspection, minor recommendations were noted. The Contractor completed all recommendations on July 8th.

 

The Contractor has suffered a delay that was beyond his control and without his fault or negligence. In this situation, it is appropriate to extend the contract time six calendar days for the period from the date the project was available for the final inspection (July 2nd) through the date the final inspection was held (July 7th) through a Department initiated claim.

4. This item of the Specifications provides that extensions of the completion date may be allowed for changes in the work that result in reduction in quantities, elimination of items, additional work, and/or extra work. Reduction of quantities and elimination of items sometimes result in a substantial reduction of the total dollar value of the contract thereby offsetting overruns of other items in the contract. Consideration can be given for an extension in the completion date when these reductions have occurred in items which would not have substantially affected the time necessary to complete the project. Extensions in this situation would generally be limited to the theoretical pro rata time as might have been allowed by the dollar value of the reduction. There are no step by step procedures to follow in making this determination as it must be based upon a thorough review of the project progress and sound Engineering judgment. The timing of those changes which result in additional work is of the utmost importance. If changes in the work which result in additional work are made at a time such that the Contractor cannot complete the affected work by the completion date and this delays the completion of the project, consideration must be given for an extension of the completion date. Consideration in this situation must be given to the time by which the project completion was delayed by the additional work versus the theoretical pro rata time allowed by the dollar value of the additional work. The Contractor may be eligible for an extension in contract time when his controlling operation has been delayed but not stopped as a result of circumstances that were beyond his control and without his fault or negligence. The Engineer must use judgment to determine the effects of the delay and the extension in contract time due the Contractor.

Example: The Contractor requests an extension in contract time for Intermediate Contract Time Number 1. The request is found to be legitimate. During the Engineer’s review of the Contractor’s request, he determines completion of Intermediate Contract Time Number 1 affects completion of the total project.

 

It is appropriate to extend the contract completion date and the completion date for the Intermediate Contract Time Number 1 even though the Contractor only requested an extension in contract time for Intermediate Contract Time Number 1.

An extension of the contract time may be warranted because the additional time (pro rata) allowed for overruns is not realistic of the time required to perform the work. This article requires the use of Engineering judgment to determine the effect that variations from the bid quantities have upon the time required to complete a project. Consideration may be given for an extension of the completion date due to additional or extra work. The amount of time to be allowed for such work will be dependent upon the anticipated delay in completion of the project caused by the extra work versus the theoretical pro rata time as might be allowed by the estimated dollar value of the work. Negotiations with the Contractor must be resolved prior to performing the work. Where practical, it is the best procedure to resolve the question of time extensions at the time the supplemental agreement is negotiated. This is normally documented by the statement that the completion date will be extended by a specific amount or will be extended in accordance with Subarticle 108-10(B)1 of the Standard Specifications. When the completion date is to be extended by a specific amount of time, the amount of time to be allowed is not necessarily the time required to perform the work. Unless the work will be the controlling operation or will require forces that would normally be performing work on the controlling operation, an extension of the completion date beyond that provided by Article 108-10(B)1 of the Standard Specifications is not normally allowed. When an agreement cannot be reached regarding the time extension to be allowed, the supplemental agreement should provide for consideration after performance of the work.

 

While an extension of the completion date is never justified due to the reduction in quantities or the elimination of items alone, such reduction in quantities and elimination of items sometimes result in a substantial reduction of the total dollar value of the contract thereby offsetting overruns of other items in the contract. Consideration can be given for an extension in the completion date when these reductions and/or elimination have occurred in items which would not have substantially affected the time necessary to complete the project and the overruns have occurred in items which have substantially affected the time necessary to complete the project. Extension of the completion date in this situation would generally be limited to the theoretical pro rata time as might have been allowed by the dollar value of the reductions in items which would not have substantially affected the time necessary to complete the project less the dollar value of the overruns of all items which have not substantially affected the time necessary to complete the project. There are no step by step procedures to follow in making this determination as it must be based upon a thorough review of the project progress and upon sound Engineering judgment.

Example: A project provides for the rehabilitation of a highway including bridges and roadway. The bridge rehabilitation included in the contract could have been performed in approximately half the time as the proposed roadway rehabilitation and would never have been the controlling operation. Class I and Class II Surface Preparation underran significantly representing 9% of the original contract amount. Milling Asphalt Pavement and Asphalt Concrete Intermediate Course, the controlling operations during the majority of time they were being performed, overran significantly representing 11% of the original contract amount. There were no significant changes in other contract items.

 

The underrun of the bridge items did not reduce the time required to complete the project; however, the overrun in the quantity of milling and paving increased the time required to complete the project. The extension of the completion date in accordance with Subarticle 108-10(B)1 of the Standard Specifications is minimal because of the underrun of the bridge work. An additional 9% pro rata extension of the completion date should be allowed due to the underrun of the bridge quantities.

Example: Although the overrun of various contract items amounted to 7% of the original contract amount, the net "contractual" overrun amounted to 2.5%. Several of the contract items underran that in the opinion of the Engineer would never have been the controlling operation had the plan quantity been performed. The total dollar value of the underrun of these non-controlling items represents 4.5% of the original contract amount. In addition, the overrun other non-controlling items of work represents 3.3% of the original contract amount.

 

Consideration should be given for an extension of the completion date beyond the 2.5% allowed in accordance with Article 108-10(B)1 of the Standard Specifications when the overrun of controlling items of work is in excess of the “contractual” overrun. The “contractual” overrun would be adjusted by adding the underrun of non-controlling items of work and subtracting the overrun of non-controlling items of work (i.e., 2.5% + 4.5% - 3.3% = 3.7%.) The extension of the completion date would be determined by multiplying the number of calendar days included in the original contract time by 3.7%. The Contractor must provide documentation to demonstrate such and extension of contract time is justified. In order to provide uniformity in the review of such requests, the following procedures will be followed:

An extension of the completion date may be justified because the additional time allowed for overruns in accordance with Article 108-10(B)1 of the Standard Specifications is not realistic of the time required to perform the work. Evaluation of such request will be made as follows (See Form 108-10(B)4):

 

   Subarticle 108-10(B)4 of the standard Specifications allows for time extensions due to additional and/or extra work that is the controlling operation when the pro-rata time extension does not adequately compensate the contractor for the time required to perform the additional and/or extra work.

 

When the performance of this work is the controlling operation, the extension of the completion date warranted would include an actual time required to perform the work plus non-productive time. When the work is performed in a continuous manner (not withstanding inclement weather or weekends/ holidays) and the time required to complete the work is 30 calendar days or more, the extension of the completion would be the equal to the number of calendar days from the date the work began through the date the work was completed. When the work is performed intermittently (regardless of duration of the work) or the time required to complete the work is less than 30 calendar days, the extension of the completion date would be the number of work days converted to calendar days. Based upon the Department's normal policy, an extension of the completion date is justified for performance of the work by converting the work days to calendar days at the ratio of 30/16. When an entire normal work day is not spent in the performance of the additional and/or extra work, reasonable judgment must be used to determine the fractional portion of the work devoted to the operation(s). The 30/16 rule is applicable in determining the amount of time extension to be granted for the performance of work [Subarticle 108-10(B)4] and should not be used for time extensions granted for delay [Subarticle 108-10(B)3].

Example: A supplemental agreement providing for the performance of extra work provides that consideration for additional contract time will be given upon request of the Contractor after performance of the work. The extra work required eight work days to perform and, upon completion, the Contractor requested an eight calendar day extension of the completion date. The Engineer confirms the work was the controlling operation, the Contractor diligently pursued the work for eight days.

 

Based upon the Department's normal policy, an extension of the completion date is justified for performance of the work by converting the work days to calendar days at the ratio of 30/16. Thus, a 15 calendar day extension of the completion date should be allowed.

Example: Supplemental Agreement Number 8 provides for the addition of a special junction box. The supplemental agreement states “Consideration for any additional contract time will be made upon receipt of the Contractor’s written request after completion of the affected work.” The Contractor submits a request for extension in contract time for Intermediate Contract Time Number 1 of two days for the period of time it took to perform the work. Upon review of the project records, the Engineer determines the special junction box became the controlling operation and construction of the box was completed during two working days. Based upon the Department's normal policy, an extension of the completion date is justified for performance of the work by converting the work days to calendar days at the ratio of 30/16. Thus, two work days converts to 3.75 calendar days, which rounds to four calendar days. The completion date for Intermediate Contract Time Number 1 should be extended four calendar days even though this is more time than the Contractor requested.

The timing of changes which result in additional work is of the utmost importance. If additional work is added at a time such that the Contractor can not complete the affected work without delaying the completion of the project, consideration must be given for an extension of the completion date. Consideration in this situation must be given to the time by which the project completion was delayed due to the additional work versus the theoretical pro rata time allowed by the dollar value of the additional work.

 

Consideration may be given for an extension of the completion date due to the addition of extra work. The amount of time to be allowed for extra work will be dependent upon the anticipated delay in completion of the project caused by the extra work versus the theoretical pro rata time as might be allowed by the estimated dollar value of the work. It is best to finalize negotiations for time when the supplemental agreement is prepared. No consideration will be given for an extension of the completion date due to insufficient time allowed in the contract.

 

For time extension requests made prior to notification of the final quantities and apparent liquidated damages, the Resident Engineer has approval authority for requests of 30 days or less. The Resident Engineer cannot deny a request, he shall forward recommendations for denials of the request to the Divisions Engineer. The Division Engineer’s approval and denial authority is unlimited. However, if the request is greater than 30 days the request shall be forwarded to the Bridge/Roadway Construction Engineer or if the request is greater than 90 days, the request shall be forwarded to the State Construction Engineer for review. The BCE/RCE/SCE must review the request prior to notifying the contractor of the Department’s decision. It should be emphasized that the burden of proof concerning the validity of any request lies with the Contractor. He should be required to submit whatever supporting evidence is necessary to the reviewing authority. It is important that the Contractor submit the data required by this article of the Specifications before the request is considered.

5. This subarticle of the Standard Specifications allows for the extension of the contract completion date or the intermediate completion date additional days if the accumulated authorized time extensions extend the revised completion date beyond December 15 of the contract expiration date. The maximum time extension for the additional dates would be the number of days between December 15 of one year and March 15 of the following year. The number of days for the additional time extension should be added to revised the contract time or the intermediate contract time. However, if authorized contract extensions are granted for dates that are between December 15 and March 15 of the following year after the expiration of the original contact completion date, those dates shall be deducted from the additional contract time extension.

Example:

Contract Completion Date: November 1, 2009

Actual Completion Date: May 1, 2010

Authorized Time Extensions: 60 calendar days (including a time extension

for a delay from January 2, 2010 through January 17, 2010.)

Applying the authorized time extensions to the completion date the revised completion date is November 1, 2009 + 60 days, which leads to a revised completion dated of December 31, 2009. Per Article 108-10(B)5 of the Standard Specifications , the completion date is further extended by the number of days between December 15, 2009 and March 2010 (90 days). Review of the authorized time extensions reveal that a time extension has been given for the dates between January 2, 2010 through January 17, 2010 (15 days); therefore in accordance with Article 108-10(B)5 the additional time extension is reduced 15 days to prevent granting time extensions for the same date more than once. The final revised completion date is December 31, 2009 + (90 days - 15 days), which is March 16, 2010. Therefore, 46 days (March 17, 2010 - May 1, 2010) of liquidated damages are assessable against the Contractor.

 

Example:

Contract Completion Date: December 30, 2009

Actual completion Date: March 1, 2010

Authorized time extensions: 30 calendar days

The authorized time extensions revise the completion date to January 29, 2010 (December 30, 2009 + 30 calendar days.) The contractor exceeded the revised contract completion date 31 calendar days (January 30, 2010 through March 1, 2010). The Contractor is not eligible for additional time extensions for the dates between December 15, 2009 and March 16, 2010 because the authorized time extensions did not extend the contract time beyond December 15, 2010 as required Subarticle 108-10B(5) of the Standard Specifications. Please note the key to applying the additional time extension, is authorized extensions that revised the completion date beyond December 15th after the original completion date. Therefore, 31 days of liquidated damages are assessable against the Contractor.

In addition, the Standard Specifications and Special Provisions establish seasonal limitations for performance of certain work, such as asphalt paving, landscape planting, chemical stabilization of soil, CTBC, and thermoplastic pavement markings. During these periods, Contractors are prohibited from performing the specified work. The seasonal limitations have been established based upon our experience that work performed during the seasonal limitation period will likely result in an inferior or unsatisfactory product. While seasonal limitations should normally be enforced, circumstances may justify that these requirements be modified or waived in their entirety. Changes in the seasonal limitations should be made when in the best interest of the Department and the public. This would include performance of work necessary to eliminate conditions that are a hazard to the public or impair the function of the facility, and work necessary to open a facility to public traffic.

 

When requested by the Contractor, changes in the seasonal limitations may be made to allow completion of the item of work. Normally, seasonal limitations should be waived when the work can be completed in one or two weeks, and when weather conditions will allow performance of the work for a major portion of the workday. Seasonal limitations should not be waived when weather conditions will allow performance of the work for only a few hours each workday. Authority to change seasonal limitations is delegated to the State Construction Engineer for TIP contract construction and to the Division Engineer for all other construction, including Division let contracts, resurfacing contracts, and purchase order contracts. Decisions regarding changes to seasonal limitations should be made consistently and fairly, as it may affect the cost of performing the work. When appropriate, these decisions should be made in consultation with representatives of the Pavement Construction Section, Materials and Tests Unit, Roadside Environmental Unit, and Geotechnical Engineering Unit.

 

When all other work on the project is complete, with the exception of an item or items on which work is precluded by seasonal limitations, this Article of the Specifications provide that the Engineer may waive the assessment of liquidated damages. The administration of this provision must be done consistently and fairly. Authority to waive the assessment of liquidated damages is delegated to the State Construction Engineer for all contract construction and to the Division Engineer for for Division let contracts, resurfacing contracts, and purchase order contracts.

 

Please note that liquidated damages should not be waived for the days on which the Contractor is allowed to pursue work during the period of seasonal limitations. Also note that when liquidated damages are waived for work precluded by seasonal limitations, this does not constitute a contract time extension.

Example:

Contract Completion Date: October 15, 2009

Actual Completion Date: April 1, 2010

Authorized Time Extensions: 35 calendar days

County: Craven

Applying the authorized time extensions, the revised completion date is November 19, 2009 and the apparent liquidated damages are 133 calendar days (November 20, 2009 through April 1, 2010.) The Contractor completed all work for the project except thermoplastic on December 20, 2009. The seasonal limitation for thermoplastic pavement markings is December 16 through March 15 for projects east of I-95. The Contractor performed work on the project December 16 - 20, 2009, therefore the liquidated damages are waived for the dates December 21, 2009 through March 15, 2010 (85 days). The assessable liquidated damages against the Contractor are 48 calendar days (133- 85.)

  

Example:

Contract Completion Date: October 1, 2009

Actual completion Date: May 1, 2010

Authorized time extensions: 75 calendar days

County: Transylvania

 

The Contractor completed all work except paving the final surface course and thermoplastic pavement markings on December 15, 2009. The Contractor began paving the final surface of asphalt on March 17, 2010 and began the thermoplastic markings April 17, 2010. Applying the authorized time extensions, October 1, 2009 + 75 calendar days, the revised contract completion date is December 15, 2009; therefore there are 137 calendar days (December 16, 2009 through May 1, 2010), of apparent liquidated damages. Article 610-4 of the Standard Specifications state there is a seasonal limitation for the final layer of pavement between December 16, and March 16 of the next year for a layer =1" thick. The contract time cannot be extended from December 16 through March 15 because the accumulated time extensions did not extend the contract beyond December 15, 2009. However, since there is a seasonal limitation for the final layer of pavement, the liquidated damages can be waived for the dates between December 16, 2009 and March 15, 2010. Subarticle 1205-4(B) has seasonal limitations for the thermoplastic pavement markings west of and including I-77, between November 16 and April 15 of the next year. To apply the seasonal limitations for the thermoplastic pavement markings all work except the pavement markings should be complete (making pavement markings the controlling operation) during the seasonal limitations. Since the asphalt paving was the controlling operation, liquidated damages would not be waived for thermoplastic pavement markings. Therefore the liquidated damages for 47 days {March 16, 2010 through May 1, 2010) are assessable against the Contractor.

 

See the Records and Reports Section of this manual for an example of how to calculate apparent liquidated damages for contracts when damages are waived for seasonal limitations. 

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108-11 LIQUIDATED DAMAGES

The contractual agreement between the Department and the Contractor provides that accumulated liquidated damages will be deducted in an amount equal to the rate of liquidated damages times the number of calendar days beyond the completion date required to complete the project. These provisions also apply to intermediate contract times. The rate of liquidated damages is set forth in the Project Special Provisions for each contract.

 

For the Department’s policy relative to the withholding of anticipated liquidated damages from partial estimates, see Article 109-4 of this Manual.

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108-12 EXTENSION OF CONTRACT TIME AND APPORTIONMENT OF LIQUIDATED DAMAGES

The Department has the contractual right to extend the completion date in accordance with Article 108-10 of the Standard Specifications, to remit to the Contractor the amount of liquidated damages involved in a completion date extension, and to assess liquidated damages for the balance of any overrun in contract time.

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108-13 TERMINATION OF CONTRACT

In the event the implementation of this provision is required, appropriate instructions will be issued by the State Construction Engineer.

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108-14 TERMINATION OF CONTRACTOR'S RESPONSIBILITY

The Contractor's responsibility for the maintenance of the work ceases as of the date of final acceptance by the Department (see Article 105-17 of the Standard Specifications); however, after final acceptance, the Department may still recover any overpayment to the Contractor by reason of error or failure of the Contractor to fulfill the terms of the contract. (See Article 107-20 of the Standard Specifications.) 

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ADDITIONAL RESOURCES