Part C - Contract Administration

Section C1.00 - Right-Of-Way Agreements

C1.01 - General

Change Right-of-Way Agreements are the written confirmations of the agreements made between individual property owners and an authorized agent from the Real Estate Section. When these agreements are properly executed and approved, they become legal and binding documents. They are required whenever it is necessary to secure additional land or easement for new highway construction or reconstruction.

Right-of-Way Agreements state the terms and conditions under which the parcel of land was acquired. Monetary payment by the Department for land acquisition may occasionally be substituted by physical alterations to the owner’s property. Whenever possible, these property changes are incorporated into the Plans and Specifications to become a part of the contract.

When the Right-of-Way Agreements specify work to be performed in conjunction with the Project, and this work is not shown on the Plans or covered in the Specifications, the Contractor must perform the additional work as requested by the Engineer. Payment for this Additional Work is made at the same Unit Prices contained in the original Proposal. If the original Proposal does not contain comparable items of work, the additional work will be paid for as Extra Work.

A summary of the Right-of-Way Agreements for each project is prepared in abbreviated form for distribution to all interested parties. It is the Area Engineer’s responsibility to forward a copy of this summary to the Project Resident for their use. These agreements should be obtained no later than the Preconstruction Meeting and copies be on file at the Construction Engineer’s office and be on the job site with the Project Resident.

It is recommended that a District representative, usually the Project Resident, the Department’s Real Estate Agent, and the Contractor conduct a thorough field review of all Right-of-Way Agreements prior to the start of actual construction. Right-of-Way Agreements made for the Department that become a part of the contract, either initially or at some later date, are binding on both the Contractor and the Department. All persons associated with the construction of a project have the responsibility to ensure that all the conditions of Right-of-Way Agreement are fulfilled.

When a Right-of-Way Agreement has not been obtained, the Project Resident is required to obtain from the property owner a Temporary Agreement to Trespass prior to allowing the Contractor to work. The Temporary Agreement to Trespass should be a comprehensive description of the work and why the work needs to be performed. These agreements are to perform work on the resident’s property that was not specified on the plans and the land does not become property of the State. If land needs to be obtained for a permanent structure (pipe, catch basin, utility pole, etc.), Real Estate needs to be contacted in order for the State to purchase the land from the homeowner.

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Section C2.00 - Environmental

C2.01 - General

DelDOT’s mission is to provide a safe efficient and environmentally sensitive transportation network for every trip, in every mode, with every dollar for everyone. Each and every project that is constructed has the possibility to impact the natural environment around us. The natural environment includes the rare, threatened and endangered plant and animal species which inhabit the woods, streams and trees within the limits of construction. The natural environment includes the water, wetlands and forested areas that are crossed or removed when a new roadway traverses them. The natural environment includes the above and underground historic structures and artifacts (Cultural Resources).

There are sometimes adverse effects that the change in landscape of the newly constructed or reconstructed transportation network can have on the environment. The increased impervious areas can increase the runoff volume, quality and velocity of stormwater that is discharged to the streams, rivers, bays and lakes. There can be a decrease in mature trees that provide habitat for animals, shade and uptake of stormwater. There may be a historic site that is important to the history of the State that could be impacted during construction.

With all of these potential impacts, DelDOT must perform due diligence to avoid, minimize and mitigate any impacts to the natural and human environment during the planning, design and construction phases of a transportation project. It is during the planning and design phases of a project that environmental commitments made to the environmental resource agencies, the impacted public and concerned citizens if necessitated by state and federal laws are documented in the construction documents and specifications.

There are various federal and state laws and regulations which layout the procedures for ensuring the potential impacts are addressed during all phases of the contract. In this manual, the responsibilities of the Construction staff, which is to ensure compliance with the Federal, state and local environmental laws and regulations; environmental commitments made in the form of MOU’s or MOA’s to the various resource agencies; project permits and special conditions are honored during the construction of the project.

This part of the manual provides guidance on the duties and responsibilities of DelDOT construction personnel related to the state and federal laws and regulations that must be followed.

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C2.02 - Potential Impacts to the Environment During Construction

All earthmoving activities have the possibility to impact the natural environment:

• Wetlands/Waterways
• Archaeology
• Historic Structures
• Habitat – Clearing and Grubbing effecting birds and bats

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C2.03 - Environmental Laws, Regulations and Enforcement

Clean Water Act

The National Pollutant Discharge Elimination System (NPDES) Permit Program was created in 1972 by the Clean Water Act. The Permit Program lays out the procedures for State Department of Environmental Protection to perform many permitting, administrative, and enforcement to ensure the protection of surface waters (creeks, streams, rivers, bays and canals). The Department of Natural Resources and Environmental Control (DNREC) is responsible for implementing the various permit and reporting programs for activities that have the possibility to impact surface water quality.

There are seven (7) activities that are regulated under the NPDES Permit Program. Two (2) of these activities have applications at DelDOT. Those activities are the Stormwater and Pesticide Application Programs. Continued compliance with the NPDES Permit Program, permits DelDOT to discharge stormwater from our transportation network and maintenance facilities to waters of the state. This compliance is confirmed by audit inspections performed by the State (DNREC) and the Federal (EPA) government agencies.

There are various state laws and regulations that define the procedures for achieving compliance. In Delaware the authority for ensuring compliance with the NPDES Permit Program on our construction projects has been delegated to DelDOT via the Stormwater and NPDES Programs. DelDOT maintains this delegated authority by demonstrating that the DOT is successfully managing the program via regularly scheduled audits by DNREC and EPA.

For more information see: http://deldot.gov/Programs/stormwater/index.shtml

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C2.04 - Guide to the Construction General Permit (Federal and State)

The Delaware Construction General Permit (DE-CGP), valid until 2031, contains the requirements under which we operate and are the basis for the NPDES permit. We must also adhere to the minimum requirements of the Federal CGP (valid until 2027). The ES2M Form is directly tied to the requirements of both permits and guides you in your observations of construction project sites.

More information regarding the permits that affect the ES2M Inspection can be found below.

• Federal Construction General Permit (FED CGP)
• Delaware Construction General Permit (DE CGP)
• Title 7 Administrative Code §5101 Delaware Sediment and Stormwater Regulations (DSSR) & Technical Document
• Delaware Erosion & Sediment Control Handbook (DE-ESC)

The following guide below will tie ES2M inspection observations to the requirements of the following Federal, State, Tribal and/or Local Laws and Regulations: CCR Guide to the Construction General Permit

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Section C3.00 - Contract Award

C3.01 - General

A construction project is initiated when the Department issues an Advertisement; a public announcement that informs interested contractors of the project and asks them to submit Proposals to perform the Work. All tabulated Proposals, or bids, submitted to the Department for a construction project are reviewed and evaluated as noted in Section 102 of the Standard Specifications. The Contract Administration Section verifies the accuracy of the bid calculations in each Proposal. Contract Administration also analyzes each Proposal to determine if it meets all the other requirements for Proposals, such as bidding on each item and including all required documentation as defined in Section 101.3 under Unbalance Bid Materially and Unbalanced Bid Mathematically and as further identified in Sections 102.6 Proposal Preparation & 102.7 Irregular Proposals. The contract is awarded to the qualified Contractor submitting the lowest responsive Proposal as noted in Section 103.2 Contract Award

The successful Contractor is officially awarded the Project via a letter from the Department offering the contract for execution. The date of this letter is considered the official award date. Copies of this letter are distributed to all involved parties. Within 20 days of the award date, the Contractor will sign the contract and return it to the Department as required in Section 103.7 The Department will then execute the contract. Once all parties have executed the contract, the contract is considered in effect, and a preconstruction meeting can be scheduled as noted under Section 108.2

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Section C4.00 - Preconstruction Meeting

C4.01 - General

A preconstruction meeting is conducted for Department construction projects after contract execution. The preconstruction meeting is considered a prerequisite for issuance of the Notice to Proceed with the work. The preconstruction meeting may be waived by the District Construction Engineer if it is deemed unnecessary due to the nature of the contract. Refer to Section 108.2

The preconstruction meeting is intended to serve several purposes. It provides an opportunity for all persons associated with the Project to become acquainted. The preconstruction meeting allows the Department personnel to advise the Contractor of State policies and specifications that may be unfamiliar, briefly review the scope of the Project, discuss potential construction difficulties and specialty items, review the Contractor’s proposed method and schedule of operations, and coordinate the contract activities with utility companies and other interested parties.

The Contractor is requested to submit its Schedule of Work to the Engineer for review prior to the preconstruction meeting in order to prevent delays to the start of a project. Per Section 108.4, no work may be started until the Schedule of Work is acceptable to the Engineer. On projects with complex schedules, the Department may consider the review and approval of the first two months of the Schedule sufficient to begin work, contingent on a complete satisfactory schedule being reviewed and approved prior to the end of the initial scheduled period.

Depending on the project, the Special Provisions may require that the Contractor also submit its traffic control plan to the Construction Engineer for approval prior to the start of the work. It is also desirable that the Contractor submit a list of proposed material sources (as required under106.1) to SourceLetters@delaware.gov prior to the Preconstruction Meeting. Additionally, it is recommended that the Contractor submits all Subcontractor Agreements as required by Section 108.1 through Unifier, prior to the Preconstruction Meeting, but after the contract has been executed.

The preconstruction meeting will be arranged and conducted by the Area Engineer or an authorized representative. It should be scheduled as soon as possible after the contract has been formally executed. A recommended list of attendees for the Preconstruction Meeting is shown below. It is recommended that a meeting place, time, and date be verbally arranged to the satisfaction of the attendees prior to forwarding written confirmation of the meeting details.

The Area Engineer should designate a competent person to record the preconstruction meeting minutes. The meeting minutes should be prepared, but will not be in the form of a letter to anyone. The names of all persons attending the meeting, as well as important discussions, remarks, directives, and other pertinent information, should be recorded. Following the meeting, the minutes should be reviewed, typed, and distributed to all in attendance and other interested persons whose responsibilities have been discussed at the meeting.

• Example documents for preconstruction meetings can be found under Part G - Standard Forms. These documents are frequently updated, so users are advised to check the guidance document for each project.

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C4.02 - Attendance Checklist

Depending on the nature of the contract, the following participants should be considered for attendance at preconstruction meetings

• DelDOT/DelDOT Consultants
  • Group Engineer, Area Engineer, Project Resident
  • Chief of Construction
  • Project Designer
  • Traffic representative
  • Traffic Safety representative
  • Utilities Coordinator or a designated representative
  • Real Estate Section representative
  • Materials and Research Engineer
  • Maintenance Engineer or a designated representative
  • Roadside Development Coordinator
  • EEO (Contracts) representative
  • Civil Rights (Federally funded projects include DBE specialist and on projects with pedestrian facilities an ADA Compliance specialist)
  • Chief of Design
  • Stormwater Representative (projects with land disturbances)
  • Erosion & Sediment Control Liaison (projects with land disturbances)
• Contractor
  • Company officer or delegate
  • Project Superintendent
• FHWA Division Administrator or delegate (Federal-Aid PoDI projects only)
• City Government representative
• County Government representative
• Utility company representatives
• Public transportation company representatives (including railroad)
• State or local police representative

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C4.03 - Agenda Checklist

The following topics should be discussed at the preconstruction meeting whenever applicable and should be reviewed item by item from a prepared checklist.

• Right-of-way status
• Utility obstructions and relocations – current status and work schedule
• Permit requirements
• Contractor’s Schedule of Work (to be submitted before this meeting)
• Contractor’s working hours
• Survey stakeout status
• Contractor’s proposed sources of materials
• Anticipated Subcontractors
• Starting and completion dates and any milestone dates
• Method of accumulating chargeable time (Working Day contracts)
• Standard Specifications, Plans, and Special Provisions
• Testing procedures – coordination for and reporting results
• Wage and general payroll requirements, interviews, posters, and similar requirements
• FHWA requirements such as EEO requirements, posters, statements, certificates, and physical inclusion of form FHWA-1273 in all subcontracts
• Payment Procedures
• Change Order procedures
• Work by Force Account (rental, material, and labor rates)
• Payment by weight in accordance with Subsection
• Supplemental Agreements (agreed prices)
• Signing and maintenance of traffic, including the Contractor’s submission of a complete signing plan or schedule
• Public relations, including activities and responsibilities
• Sanitary (toilet) requirements
• Field office requirements
• Safety and review of OSHA requirements
• Required Shop Drawings
• Unsuitable material encountered, special ditching, and similar issues that could arise during construction
• Erosion control procedures
• Notice to proceed
• Schedule for specialty preconstruction meetings

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C4.04 - Specialty Preconstruction Meetings

If applicable, preconstruction meetings are also held on-site for utilities and erosion and sediment (E&S) controls. Holding these meetings on-site aids in quickly resolving any questions or concerns that may arise from these meetings. The Area Engineer is responsible for coordinating the utility preconstruction meeting between the utilities, DelDOT representatives, and the Contractor. The Certified Construction Reviewer (CCR) assigned to the project is responsible for coordinating the E&S preconstruction meeting between the CCR, DelDOT Construction, and the Contractor. Both meetings are often discussed and established during the general preconstruction meeting.

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Section C5.00 - Community Relations

Any person questioning the Department’s policy or sensitive issues should be referred to the Community Relations Office (Link for internal use only).

C5.01 - General

All Department employees and consultant personnel (field staff) should bear in mind that they are working for a public agency. Actions of field staff reflect directly on the Department and impact the Department's ability to work on behalf of the public as the public will judge the Department based upon the interactions with staff and consultants that are encountered. Therefore, it is imperative that all field staff conduct themselves in a courteous and business-like manner, and that they execute their jobs as efficiently and conscientiously as possible.

Field staff are in constant contact with the public. They should listen to all inquiries attentively, always maintain a friendly attitude, and stick to the facts. Field staff should be careful not to engage in speculation and opinionated discussion. If a specific concern is expressed by a member of the public, field staff should make a note of the conversation noting the issue discussed, the time, name of the person involved, their phone number, address and e-mail address if available. This information should be given to their supervisor. Field staff should never, under any circumstances, make unauthorized promises or be drawn into controversial discussions. Avoid expressing personal opinions as all communication should be limited to factual statements.

Each project will be required to submit a weekly Secretary’s Report. This report is a summary of current construction activities, key issues, and any discussions with homeowners or legislative liaisons. This report should be submitted by Friday for the following week’s activities.

Each project will also be required to submit a weekly Traffic Report. This report is a detailed description of any lane restrictions or detours that the project may require and the duration of the lane restriction. The Traffic Report (Blank Weekly) should be submitted by close of business each Wednesday for the following week’s activities.

C5.02 - Required Public Notices

Construction is required to follow specific policies to allow for proper notice to the public that work will be occurring in a specific area. In addition to the notifications identified within the Contract Documents (such as Portable Changeable Advanced Warning Signs), the Department is required to follow Policy Implement C09 for planned land restrictions or road closures and Policy Implement C10 for night work (Links for Internal Use Only].

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Section C6.00 - Schedule of Work

C6.01 - General

A construction project of any size requires some level of management. As the complexity of the project grows, the project management becomes more sophisticated. The project manager is primarily interested in three things: cost, time, and quality. Having a firm grasp on these three things will help ensure that a project is built on budget, on time, and in accordance with the Plans and Specifications. The Schedule of Work is a means of project management that helps the Contractor efficiently manage the cost and time on a project. Sections 108.2 and 108.4 of the Standard Specifications can provide more details.

The Schedule of Work places the construction activities in the order in which they will be performed. Time, usually expressed in days, is associated with each activity to indicate how long the Contractor expects the activity to take. This allows the Contractor to determine if an activity is taking longer than planned. It also allows the Contractor to determine, at any given point, which construction activities are scheduled and plan for those activities. Finally, the Contractor can use the Schedule of Work to determine how any changes or delays will impact the upcoming activities and the overall completion date for the Project.

The Schedule of Work is also used by field staff on a project. Using the schedule, the field staff can determine what upcoming work will need to be inspected so that they can arrange for any special equipment or personnel necessary. The Schedule of Work can also be used to monitor the Contractor’s progress and assure the Department that the Contractor has considered temperature requirements, delivery and storage requirements, and similar items when planning its work.

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C6.02 - Schedule Requirements

The Contractor must submit a Schedule of Work to the Area Engineer prior to the issuance of the official Notice to Proceed. To avoid delays to the start of work, the Schedule should be submitted to the in advance of the preconstruction meeting to the greatest extent possible.

The Schedule must meet the requirements as laid out in Section 108.4

Generally, the Schedule should:

• Comply with the milestone dates indicated in the contract.
• Document that all original Contract work will be completed within the original contract duration.
• List all principal items, or preferably, groups of related items of work.
• Not conflict with the Plans or Specifications.
• Consider all Right-of-Way and Utility Agreements as well as other similar Department commitments.
• Show activity durations that are reasonable and representative of the scope of the activity. The activity durations should be determined by using productivity rates based on workdays. If any durations are considered excessive or insufficient, the industry standard can be used. If the industry standard cannot be agreed on, then industry estimating books such as R.S. Means will govern the allowed activity duration.

The Contractor’s Schedule of Work as submitted and approved should reflect an accurate duration for the execution of individual items of work. It should be noted that while an early completion date is permitted to be identified, the difference between the early substantial completion date and the contract substantial completion date shall be considered float. Depending upon the cause of a delay, the excusability and compensability of a delay to the early substantial completion date may differ from delays to the contract substantial completion date. Please refer to Section 108.4.A.3 - Early Completion for additional information. Per Section 108.4.B.3, the Contractor is required to submit a bi-week activity schedule for all projects, on a weekly basis on a day identified by the Area Engineer.

Depending upon the Contract Documents, either a bar chart schedule, or a critical path method (CPM) schedule, may be required. The CPM schedule is the preferred method of Project control and may be mandatory on some projects; however, both types of schedules are used on Department projects, so field staff should be able to understand both. Figure C-1 (below) shows a typical CPM schedule in bar chart format.

Figure C-1 CPM Bar Chart.png

Figure C-2 shows an Activity ID Report, similar to what the Inspector may see when working on a project that is using CPM schedules. For more information on CPM schedules, field staff is referred to subsequent sections of this manual, the Contract Documents, and to a scheduling manual such as Construction Planning & Scheduling, published by the Associated General Contractors of America. Department staff can also seek training provided by AASHTO and available through the Delaware Learning Center.

Figure C-2: CPM Activity List

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C6.03 - CPM Schedule Requirements

CPM schedules may have different calendars to be set up and applied to different activities however, the use of such calendar is not permitted without written authorization of the Engineer.

The Contractor may choose to utilize either a standard 5-day workweek or a 7-day workweek calendar.

The activity sequence should be typical of proficient scheduling practice. The sequence must be logical and representative of the Contractor’s order of the work. CPM schedules use activity successors and predecessors to determine the project logic or activity sequence. A successor is an activity that must follow another activity. A predecessor is an activity that must be done before another activity. A given activity cannot start until all predecessors have been completed. The Department may request a re-sequencing of activities to effect competent scheduling practice and realistic Project logic. CPM schedules also allow each activity to be coded with additional information, such as phase, area, and responsibility.

Each activity in a Type 1 CPM Schedule should be coded with a minimum of the following information:

• Notice-to-Proceed
• Mobilization
• Essential work features
• Procurement, including submittals that require engineer review time
• Third party activities related to the contract (such as utility relocations)
• Substantial Completion
• All work completing withing Contract Time
• The critical path

Each activity in a Type 2 CPM Schedule should be coded with a minimum of the following information:

• Notice-to-Proceed
• Mobilization
• Project Milestones, such as phase and traffic switch dates
• Submittal, Review, and Approval activities, including time periods for the Engineer's approval
• Fabrication, Delivery, Installation, Testing, and similar activities
• Earth Settlement or Surcharge Periods
• Utility notification and relocation
• Right-of-Way acquisitions
• Durations for receipt of permits
• All construction work
• Substantial Completion
• Project Completion

In general, the CPM schedule should include activities to represent the submittal, approval, manufacturing, and delivery time required for each items necessary to complete the for the Project. The level of detail required for these activities will depend upon the type of CPM schedule identified to be used with the contract. Each item listed in the utility statement should be an activity, with differing levels of detail depending upon the type of CPM Schedule. These activities should be correlated with the utility statement.

Float on a CPM schedule is defined as the amount of time between when an activity can start and when an activity must start. Total float is defined as the amount of time an activity can be delayed without affecting the overall time of project completion. It is understood by the Contractor and the Department that float is a shared commodity, not for the exclusive use or benefit of either party. Either party has the full use of the float until it is depleted.

The critical path on a CPM schedule is defined as the series of activities that has the longest path in time. The submitted activity sequence and durations must generate a CPM schedule having only one critical path; a schedule with multiple critical paths will not be allowed. Activities like project-wide Maintenance of Traffic or Temporary Erosion Control that extend for the duration of the project or for long durations should be divided and condensed into “establish” and “conclude” activities to prevent them from being on the critical path.

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C6.04 - CPM Schedule Updates

When CPM Schedules are included in the contract the Contractor must provide monthly updates to the CPM Schedule of record. The assigned Project Resident will be responsible for verifying all of the as-built dates noted by the Contractor. If an update shows the project is behind schedule by more than fourteen (14) calendar days, the Contractor will need to revise the CPM Schedule and show how the schedule will be brought back into compliance. The project's Area Engineer will be responsible in providing written notice to the Contractor that the CPM Schedule Update is either accepted or a revision will be necessary. For more details on the CPM Schedule and CPM Schedule Update requirements refer to Section 108.4.E of the Standard Specifications.

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Section C7.00 - Control of Materials

C7.01 - General

Materials are defined in the Specifications as “Any permanent substances, used in the construction of the project.”

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C7.02 - Material Approval

Material approval is given by the Materials and Research Section and can be categorized into five general types:

• Approval of the source of materials.
• Satisfactorily passing preliminary tests or approval of certified analysis.
• Satisfactorily passing job control tests.
• Satisfactorily passing random sampling tests.
• Acceptable field performance of approved materials

It is intended that the approval of all materials used on the Project be at least one of these types. While it is preferred to have the sources of materials approved before Notice to Proceed is given, it is a requirement that the sources be approved prior to the materials being incorporated into the Project. The Materials and Research Section, by letter to the Contractor, will approve or reject each source of material. The Inspector should include copies of the material approval or disapproval letters for all materials in the Project records. Even if sources for materials exist on one of the Department's Approved Product Lists it is still required that the source be approved for the project. Refer to Section 106 for further details.

After the material source has been approved and prior to delivery to the Project, materials will undergo preliminary testing. These test results, in the form of Materials and Research reports or certified analysis reports, should also become a part of the Project records. These test results should be satisfactory before the materials are used on the Project. When, and only when, materials pass the Department’s preliminary tests will they be approved for use.

The final approval of all materials is dependent upon satisfactory performance in the field. In other words, approval by initial testing analysis is only valid when the material functions in the field as specified.

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C7.03 - Inspector’s Responsibility

It is the direct responsibility of every Inspector to ensure that only approved materials are used on the Project. Upon delivery of any materials, the Inspector should immediately determine if the material has been approved by the Materials and Research Section. Precast and prefabricated items must be inspected immediately upon delivery to the Project site to ensure that no damage has occurred either during shipment or after the plant inspection by the Materials and Research Section. When the testing has been performed by an outside laboratory, the Inspector should verify acceptability of the material by reviewing the appropriate certificate of compliance as noted in Section 106.3 of the Specifications.

Inspection tickets, tags, or stamps should be reviewed and collected. The Materials and Research Section should be notified when materials are delivered without evidence of inspection so that the materials can be tested on the Project site or random samples can be sent to the Materials and Research Section.

It must be fully recognized by the Inspector and the Contractor that when defective materials are discovered they must be discarded and removed from the Project regardless of the results of prior testing as noted under Sections 105.11, 106.3, and 106.7 It is pointed out that under certain conditions material will be approved for use even if one test in many indicates unacceptable materials. In this situation, the material might be approved on a statistical analysis basis. These cases should be decided only by the Engineer or an authorized representative. Materials that may vary in consistency, quality, gradation, or other characteristics must be periodically tested for conformance with the Specifications. It must also be understood that although the Inspector may not do the testing, it is the Inspector's duty to ensure that testing has been completed and that materials used are in conformance with the Specifications. Refer to Sections 105.2 and 105.3 for additional information.

A record of all material sources and material approvals should be maintained by the Inspector in the Project files.

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C7.04 - Material Rejected in the Field

Laboratory testing and inspection is usually based on random samples. Consequently, defective material may be delivered to the Project site from a stockpile that was initially approved. Also, material may be damaged on the Project prior to its use or even after being used. The Inspector is responsible for rejecting all defective materials that might prove detrimental to the Project.

It is recommended that all materials that are rejected in the field be clearly and permanently marked so that they may be readily identified at any future date. The method of identification used should not, however, detract further from the salvage value of the material. All rejected material must be removed from the Project site.

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C7.05 - Field Testing Record Keeping

After arriving on the Project, assuming they have been preliminary approved, all materials must perform satisfactorily. Proof of satisfactory performance comes from field-testing.

Field-testing may be classified into the following categories:

• General observation of a material’s performance or appearance as witnessed by the Inspector or any other qualified employee of the Division of Transportation Solutions
• Control Tests
• Random Sampling Tests

When materials are placed testing should be performed to ensure satisfactory performance. The Inspector in charge should contact the lab technician assigned to the project at intervals indicated by the project specifications or the regular intervals as determined by the Materials & Research Manual. The Inspector in charge should maintain a system of cross checks for all field tests. This check should easily display where all tests have been taken and the relationship of each test to others.

The suggested method for maintaining this record is to retain it digitally on a Working Plan set of As-Builts in BlueBeam, marking the sample locations with a symbol and commenting as to the test number and type. It is also permissible to use an extra set of Plans. Similarly, the Plans should be marked with either a unique symbol or a readily identifiable color for each test type. Each field test report should be reviewed for station count and position, and then recorded on the Plans as the report is received. Certain work, such as the construction of embankments, will require a vertical as well as a horizontal location. In this case, select the profile view for plotting the test symbols rather than the plan view. Mark the test report “plotted” before filing. Identify each symbol nearby with numbers showing test record number and result, such as JC #144 – 99.6% or RT #4 – 1 3/16" (RT #4 – 30 mm). In this example, “JC #144 – 99.6%” indicates that Job Control test number 144 was performed at the location indicated on the Plans, and the result of the test was 99.6%. Similarly, “RT #4 – 1 3/16" (RT #4 – 30 mm)” indicates that Random Test number 4 was performed at the location indicated, and the thickness measured was 1 3/16" (30 mm). A graphical record such as this will indicate where all tests have been taken, whether failing tests in an area are superseded by passing ones, and if Job Control tests and Random Tests are compatible.

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Section C8.00 - Sublet Work and Subcontractor Approval

C8.01 - General

A Contractor may desire to secure an additional contracting firm to perform a portion of the Project. This firm is referred to as a Subcontractor, and the work that the Subcontractor performs is known as sublet work.

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C8.02 - Approval Procedure

When the Contractor desires to sublet a portion of its contract, the Contractor must initiate and send a record through the Unifier Subcontract Approval Business Process to obtain both an approval to sublet and approval of the Subcontractor. When the Contractor requests approval to sublet a portion of the project, the Construction Engineer must then review the nature of the work to be sublet as well as the qualifications of the Subcontractor. If the Subcontractor has not worked with the Department for the type of work in question, satisfactory evidence of the Subcontractor’s competency must accompany the request. Refer to Section 108.1

Following a favorable review of the request, the District will ascertain if the monetary value of the total work to be sublet does not exceed the maximum allowable as outlined in the Specifications. To verify the submitted value of the subcontracted work, the Contractor must submit a copy of the complete and signed subcontract agreement. If the subcontract agreement shows the actual dollar amount of the subcontracted work, then that value will be used to compute the percentage of work being sublet. If the dollar amount shown on the subcontract does not include the cost of material used by the Subcontractor, it shall be added in as specified in the Specifications. If the Contractor elects to delete the dollar amount of the subcontract, then the unit bid prices of the subcontracted items will be used to compute the percentage of work being sublet. The Contractor may not elect to initially delete the subcontract dollar value and then reestablish the value at a later date. This submission is also reviewed by the Chief Estimator prior to the Construction Engineer’s review and approval. Copies of the approval letter are automatically distributed via Unifier, and the Subcontractor is automatically added to the vendor list within Unifier. No work can be performed by a Subcontractor until approval is granted by the Construction Engineer.

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C8.03 - Contractor Responsibility and Execution

Approval of a Subcontractor does not relieve the Contractor of its responsibility for proper performance of the contract in full. Furthermore, correspondence from the Department that pertains to the Subcontractor will always be directed to the Contractor, and vice versa.

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C8.04 - Inspector’s Responsibility

It is the duty of all State personnel assigned to the Project to ensure that all work is performed only by approved forces. This is especially true of sublet work. If the Subcontractor is not officially approved in Unifier, the Subcontractor must be ordered off the Project until approval is received from the Construction Engineer. The requirement that only approved Subcontractors are to work on a project cannot be overemphasized. Sometimes the approval process is delayed because the Contractor neglects to submit the affirmative action statements, copies of subcontracts, EEO documents, or other information required by the Specifications. However, there is no excuse for permitting an unapproved Subcontractor to work. The approval of a Subcontractor approval on prior projects does not mean that it is automatically approved on the current project.

The consequence of allowing unapproved Subcontractors to work on Federal-Aid projects may be the withdrawal of Federal funds from the Project. If, despite warnings from the Project Resident, the Contractor continues to permit an unapproved Subcontractor to do work on the pretense that the subcontractor’s personnel are on the Contractor’s payroll, the Project Resident is instructed not to pay for the items of work performed by these workers until it has been verified that these workers are, in fact, on the Contractor’s payroll. This requirement applies to both Federal-Aid and State-funded projects. The decision whether or not to permit a Subcontractor to perform work on a project has to be made at the field level.

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C8.05 - Changing an Approved Subcontractor

If, after receiving formal written approval of a Subcontractor, the Contractor wishes to make a substitution, the procedure described below must be followed. The Contractor must submit to the Area Engineer its written request for the substitution, stating the specific reason for the change. The Group Engineer will make a recommendation in the usual manner, but must evaluate the request in the light of whether the change is in the best interest of the State. No substitution for an approved DBE Subcontractor will be allowed without approval from the Contract Administration and the DBE Section. It is stressed that such substitutions should be held to a minimum and are generally to be discouraged.

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Section C9.00 - Notice to Proceed

C9.01 - General

After a contract is executed, there are procedures to be followed and obligations that must be fulfilled before actual construction may begin. Once these requirements have been met, the Contractor can be given Notice to Proceed, which is the official notification that the Contractor may begin work. Although these requirements may vary slightly for different types of projects, the general procedures required for the issuance of a Notice to Proceed are identified in Section 108.2 and are further outlined below.

The following items are required to have been received, reviewed, and/or acted upon by the District before recommendations concerning issuance of Notice to Proceed:

• Contract must be executed, and money must be encumbered (see Section D8.02 of this Manual for more details). If there is a railroad agreement, they usually require a mandatory preconstruction meeting where the railroad personnel must attend.
• Preconstruction meeting held.
• Right-of-way provisions on file (if applicable).
• Contractor's Schedule of Work on file.
• Identification of DBE Subcontractors

The following items are recommended to have been received, reviewed, and/or acted upon by the District before recommendations concerning issuance of Notice to Proceed:

• Preconstruction Meeting minutes on file.
• Utility problems on record and Utility preconstruction meeting scheduled (if applicable).
• Erosion and Sediment Control Preconstruction meeting scheduled (if applicable).
• Contractor’s Schedule of Work approved.
• Submission of material sources and approval of the sources.
• Submission of proposed subcontractors or a statement that none are presently anticipated.
• Completion of any special preliminary requirements for a particular contract.

When the Contract has been fully executed and there are no further questions pertaining to the contract, the Area Engineer will prepare a letter to the Contractor for the Construction Engineer’s signature. This letter will advise the Contractor to proceed with the Work under the terms of the Contract Documents. This letter is completed using the Notice to Proceed Unifier Business Process.

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C9.02 - Official Notice to Proceed

The letter, referred to above, is the official Notice to Proceed. This letter will specify the date on or before which the Contractor is expected to begin work. Time charges will be based on the date work begins or the date specified in the letter, whichever comes first. The First Chargeable Day of Work must also be identified by letter, and is completed using the Time Charge Notices Unifier Business Process.

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Section C10.00 - Contract Documents

The Contract Documents for each project will include General Notices, Standard Specifications, Bid Proposal, Special Provisions, Supplemental Specifications, Plans, and the Standard Construction Details. There are also documents included for each contract that are not part of the bid process. These include Plan Revisions, project As-Builds, Progress Plans, Working Drawings, and Cross Sections.

C10.01 - Coordination of Contract Documents

Per Section 105.6 of the Specifications, if there is a conflict between two or more Contract Documents, the governing ranking is:

• General Description
• General Notices
• Plans
• Special Provisions
• Standard Construction Details
• Standard Specifications
• Electronic Design Data Files

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C10.02 - General Description

The information that appears in the bid proposal before the general notices that consists of specific project related information that may include, but is not limited to; location, description, completion time, prospective bidders notes, anticipated notices to proceed, special notices, bidding criteria, construction sequence notes, road user costs, modifications to liquidated damages, addenda issued, questions and answers published, pre-bid meeting transcripts, construction items units of measure, and table of contents.

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Addenda to the Contract

Occasionally, modifications will be made to the contract after Advertisement of the Project but before Proposals are submitted. These modifications are issued as addenda and become part of the contract. Contractors are responsible for all work contained in all Contract addenda; therefore, the Inspector should ensure that copies of all addenda are available on the Project.

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C10.03 - General Notices

Each project will be provided with a set of General Notices for bidding Contractors that will detail which Standard Specification will be used, Tax Clearance information, and the Differing Site Condition process. Also included in the General Notices will be the Pre-Bid Questions and Answers, the project specific requirements for Equal Employment Opportunity, Disadvantaged Business Enterprise, and Trainees.

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Pre-Bid Questions and Answers

The Pre-Bid Questions and Answers often contain important clarifications on the designer's intent and methods of measurement and payment. It is important that the Inspectors review and become familiar with the questions and answers.

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C10.04 - Plans

The Plans are the approved detailed drawings that illustrate the scope of the Project. They show the Project location, construction features, estimated quantities, and other information relative to the actual construction phase. The Plans may be prepared by either the Department’s Design Section or a consulting engineering firm. If printed, plan sheets are normally 22” by 36" in size. Plan sets in 11" x 17" are typically referred to as "half-sized" plans. The Plans usually consist of several sheets. All Plans must be approved by the Design Engineer and the Chief Engineer.

Before the contract is awarded, copies of the Plans are distributed to the interested bidders by the Contract Administration Office. Following the Award, additional copies of the Plans should be obtained from the Construction Engineer. All Inspectors on the Project are expected to be familiar with the Plans. They should study and review each detail shown and understand how it fits into the overall Project. Whenever errors or discrepancies are discovered, or if improvements can be suggested to clarify the Plans, they should be discussed with the Project Resident. If necessary, the Project Resident will pass the comments on to the Area Engineer, and in turn if necessary, the Group Engineer.

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C10.05 - Special Provisions

The Special Provisions should be stored within Unifier such that is readily accessible to or possessed by the Project Resident. The Special Provisions, as generally known in the field, are a part of the Bid Proposal.

The Special Provisions of the Contract may contain additional provisions or supersede some of the requirements in the Standard Specifications.

The Special Provisions are defined as follows:

• Special Provisions are specific clauses setting forth conditions or requirements peculiar to the project under consideration and covering work or materials involved in the estimate of quantities and the proposal but which are not sufficiently covered by the Standard Specifications. Should any Special Provisions conflict with the Standard Specifications, the Special Provisions shall prevail.
• Personnel with responsible assignments on construction projects should be thoroughly familiar with the Special Provisions. The degree of familiarity expected of each person, of course, varies with his or her assignment. In essence, the District staff and the Project Resident should be completely familiar with the Special Provisions, and each inspector should be thoroughly familiar with the sections pertaining to his or her respective assignment.
• It is recommended that the Project Resident immediately review the Special Provisions when assigned to a new construction project. All unusual and important items should be underscored and discussed with the staff and the Contractor. The latter may initially be done during the Preconstruction Meeting. As the construction progresses, the applicable items in the Special Provisions should be periodically reviewed to maintain a working familiarity with their requirements.
• Special Provisions are written for each project. Even though the item number and title of a Special Provision may be identical to that on a previous project, the content may vary from project to project. Therefore, the Inspector should always review the Special Provisions for the Project in detail.

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C10.06 - Standard Construction Details

The Standard Construction Details are a set of standard drawings that apply to common situations found on projects. Review the Contract Documents to determine which version applies to your project. In absence of direction, the most current set at the time the project was advertised applies.

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C10.07 - Standard Specifications

The Standard Specifications for Road and Bridge Construction, issued by the Department, is usually referred to as the Standard Specifications, Standard Specs, or Specifications.

The intent of the Standard Specifications is to provide a set of specifications that are usually applicable for construction. These Specifications should be adhered to throughout the Project unless supplemented or superseded by another Contract Document. Specifications define the qualitative and quantitative requirements for products, materials, and workmanship upon which the contract is based. The Standard Specifications will also describe the method of measurement and the basis of payment for each contract item used.

The Standard Specifications are an integral part of every contract, and the specifications contained therein are equally binding on the Contractor and the State. Deviations from these specifications will not be permitted.

It is essential for all Department and consultant personnel engaged in construction activities to acquire a working knowledge of the Standard Specifications, and for them to conduct their activities and actions in accordance with the Standard Specifications. Each inspector should be particularly familiar with the section that pertains to that inspector’s assignment, and it should be studied and restudied as often as required.

It is important to refer to the contract advertisement date and General Notices to determine which edition of the Standard Specifications applies.

Initial Publication

The initial publication of the Standard Specifications is typically a large update and a major undertaking by the Department. Item Numbers, and entire Sections of the Specification can be moved, added, or deleted. These main documents have been published in the following years: 2025, 2020, 2016, 2001. Publication of specifications prior to 2001 was primarily on paper.

Supplemental Specifications

Supplemental Specifications are approved additions and revisions to the Standard Specifications. While recent editions have been provided as a singular document encompassing all the updates, previous editions have been a separate document appending the initial publication. When issued as an appending document, the initial publication should be read in conjunction with the supplemental specifications to fully understand the updates. It is important to note the difference between Special Provisions and Supplemental Specifications. The former only applies to the specific Project it is included on, whereas the later applies to all contracts with the advertised date.

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C10.08 - Electronic Design Data Files

The Department may elect to provide Electronic Design Files, either as part of the bidding process, or post contract execution to aid the Contractor in constructing the Project. Unless otherwise noted in the Contract Documents, these Design files should be considered for information only.

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C10.09 - Other Specifications

Most construction contracts refer to other specifications, such as those set forth by the American Society for Testing Materials (ASTM), the American Association of State Highway and Transportation Officials (AASHTO), and others. Whenever these “other specifications”, or parts thereof, are referred to in the contract, they become a binding part of the contract. The Project staff and the Project Resident should ascertain at the outset of the contract exactly which other specifications are applicable, and therefore enforceable. A copy of all “other specifications” should be on file in the Project field office. Staff should seek assistance from Supervisors and support sections if they are unable to obtain these documents on their own. It is essential that these documents be included as part of the Contract Documents in any claim dispute.

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C10.10 - Bid Proposal

The Bid Proposal is a collection of documents to all prospective bidders. The Bid Proposal contains the General Description, General Notices, Supplemental Specifications, Special Provisions, and the Bid Proposal Form. The Bid Proposal is a part of the contract, and all requirements in the Bid Proposal must be met by the Contractor.

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C10.11 - Plan Revisions During the Project

Through the course of a construction project, it occasionally becomes necessary to revise the Plans. The revision may be prompted by discrepancies, redesign, or necessary field changes. If the need for a change originates in the field, the Construction Engineer will request a clarification from the designer and have the designer initiate the revision. Depending on the complexity of the change, the request may be either oral or written. The need for a revision is often determined through discussions at the project's Progress Meeting, depending upon the complexity of the change. Following the approval of the revision, the designer will make the change to the construction plans and files.

Revisions can be further sub defined under two categories:

• Redline Revisions

Not to be confused with As-Builts, these revisions are typically minor in scale but still require designer input. They are often generated as a result of a Request for Information or email due to an isolated conflict. They do not typically involve large schedule impacts or quantity changes, and do not have the same distribution requirements.

• Plan Revisions

These revisions typically involve larger impacts to other stakeholders, phasing, schedules, quantities, or the original scope of work, as noted in the Design Resource Center, and Policy Implement D-04 (Link for Internal Use Only). Plan Revisions should also incorporate all previous Redline Revisions (but not Redline quantities). Revised sets of the construction plan sheets will be forwarded to the Construction Engineer with a memorandum containing a tabulation of the changed quantities and identifying revised sheets. All revisions are issued by the Group Engineer, or their designee, to interested parties using a transmittal letter addressed to the Contractor.

The Construction Section is responsible for issuing all new contract drawings or design drawing revisions, regardless of their originating source, once the contract has been officially awarded to the Contractor.

Revisions should be carefully reviewed by the field staff, particularly the Project Resident, then filed systematically so that the changes will be built into the contract and not overlooked. It is suggested that the superseded sheet be crossed out with a conspicuous, red "X", and the new sheet be placed in front of the old sheet in the bound assembly. It is also suggested that the revised items be clearly marked on the new sheet so that the revisions will be readily apparent. In essence, a complete set of Plans should include a copy of all the original sheets as well as any new or revised sheets.

The Project Resident should immediately initiate a Change Order whenever receiving Plans that involve quantity adjustments. The Change Order should refer to the revised Plans and the tabulation of revised quantities for authorization of the Change Order.

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C10.12 - As-Built Plans

The as-built plans are an assembly containing a copy of each original plan sheet or revised sheet. Original sheets that have been superseded should be included but crossed out. These as-built plans are maintained for recording (in red) approved field changes that are not shown on a revised sheet. Such field changes are usually of a minor nature, as significant changes must be formally documented by a revised sheet or sheets. The as-built plans should be carefully and accurately prepared.

A set of as-built plans must be maintained for each construction contract by the respective Project Resident.

• Digital Process (preferred)

To facilitate communication and coordination between the field and the designer, the preferred method of maintaining As-Builts is via a Bluebeam Review Session. Using a review session allows for direct collaboration between all parties, using a common document. Using Bluebeam also facilitates a more uniform markup of the plan using the Bluebeam Resources found in the DelDOT CADD Wiki.

When creating the session it is advisable to create at least three sets of drawings.

1. Clean As-Builts (Used for final As-Built Submission.)
2. Working Plans (Used for interim markups, such as Redline Revisions)
3. Progress/Phasing Plans (Used for marking areas of work complete. i.e. GABC)

• Paper Process

The as-built plans are to be a should be filed in the field office and used for the sole purpose for which they are intended. Periodic progress markings should not be recorded on the as-built plans. It is suggested that the title sheet be clearly marked in red for ease of identification. If necessary, prints may be obtained from the Transportation Solutions Print Room.

Similar to the digital process, the inspection staff should keep several sets of plans on hand in the field office.

1. Clean As-Builts (Used for final As-Built Submission.)
2. Working Plans (Used for interim markups)
3. Progress/Phasing Plans (Used for marking areas of work complete.)

These plan sets should be kept current, and should be updated in a clean and neat manner to support easy review in the future. While the Field Plans and Working Plans may have markups noting temporary changes, the Final As-Build should only include changes made to the approved design to permanent fixtures or structures. (i.e. The location adjustment of a temporary signal pole should not be identified, but an adjustment of a permanent signal pole should.)

When the Project is complete and accepted by the Department, the Project Resident should ensure that the as-built plans are complete. The as-built set of plans should include a cover memo with AS-BUILT PLANS clearly marked on the cover sheet and they must include the name of the person/persons responsible for creating the as-built mark ups with the date that the mark ups were completed. All as-built information should be documented on the most recent plan sheets and only the sheets that have as-built information documented should be included. All as-built data should be identified in red on a clean set of the most recent plan sheets.

Upon completion of the as-built plans, they are reviewed by the Area Engineer before being provided to Engineering Support for archiving. The Area Engineer then reviews the as-builts for completeness and acceptability and forwards them to the Project Development Design Section. The construction plan sheets are then revised to reflect the changes noted on the as-built plans. While print copies are permissible, it is preferred that a digital copy of the as-built plans be created.

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C10.13 - Progress/Phasing Plans

As noted in As-Built, it is desirable for the Project Resident to maintain another separate set of Plans on which to record the daily (or otherwise) construction progress. Such a set of plans aids field staff in avoiding double payments for work previously completed, and substantiates the progress information that must be recorded in the official Construction Diary. It also clearly and readily reflects the status of the Project. Once again, it is preferred this copy be digital, and individuals may obtain tools to mark .pdf copies from the DelDOT CADD Wiki.

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C10.14 - Shop Drawings

Supplementary drawings that are prepared by the Contractor are usually referred to as Shop Drawings. They also may be known as working drawings, vendor’s drawings, bar lists, mill lists, or by any of a number of other names. Shop Drawings are usually required for structures, particularly the more complex structures. The Special Provisions should be reviewed to determine if Shop Drawings are required for other items.

All required Shop Drawings must be formally approved by the relevant Subject Matter Expert (SME). These drawing should be submitted using the Unifier Submittals BP. The Area Engineer should review the submittal for completeness before sending it to the SME. Similarly, the Area Engineer should review the SME's response, especially for items which may create an additional cost, before returning it to the Contractor. The submittal process for Shop Drawings is identified in Section 105.4 of the Specifications.

Approved Shop Drawings become as much a part of the contract as the Plans and must be strictly followed. It is the responsibility of the Project Resident to ensure that Shop Drawings are submitted, approved, and followed, wherever specified, prior to the actual execution of the work. A copy of all approved Shop Drawings should be retained in the Unifier Document Manager.

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C10.15 - Cross Sections

The drawings that represent the vertical planes or sections taken transversely at intervals through the Project site are commonly referred to as cross sections. They are usually drawn by extending a line through several known position points. These points are located horizontally with respect to an established reference line (usually the centerline, base line, etc.), and their vertical height or elevation with respect to a given benchmark or a known elevation. In essence, both dimensions are known and fixed for each position point. When each of the position points has been inter-connected, the cross section serves as a pictorial representation of the area as it exists or is proposed.

The cross sections most frequently used in construction work are divided into four basic categories:

• Typical sections shown on the Plans that illustrate the proposed sections of the road or structure.
• Cross sections that represent the contour of the existing earth, roadway, or structure prior to the start of work. These cross sections, called preliminary cross-sections, are not normally attached to the advertised Plans; nevertheless, they are an integral part of the contract.
• Cross sections that represent intermediate work such as the actual depth of excavation or similar information.
• Final cross sections that illustrate the contour of the completed items of work or, perhaps, the entire Project.

Cross sections are an invaluable aid in the construction of a project. They are particularly useful for computing excavation or fill quantities and for identifying potential drainage problems, among other uses.

The Project Resident must ensure that all preliminary and intermediate cross sections have been taken and recorded before these areas are disturbed. This work must be done by surveyors. The surveyors may be consultants working for the Department, or from the Department's Right of Way Section staff. This work is not part of the Construction Engineering item. In certain circumstances field staff may need to manually calculate a cross section. Such calculations should be done using formulas found in Appendix B.3.

The importance of sufficient cross sections cannot be over-stressed, and they should always be taken, as required, in a most conscientious manner. This is particularly the case when they are used as a basis for computing pay quantities. Insufficient or improperly taken cross sections can be detrimental to the Project and costly to the State and the Contractor.

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Section C11.00 - Negotiation

C11.01 - General

Resolving disputes and the negotiations of changes to the contract requires the owner to make sure that they have all their facts in order and an understanding of changed condition. One manner of obtaining facts is by reviewing escrowed Bid documents to understand how the Project was actually bid. However, it is important to remember that there are limits and provisions around reviewing said documents contained within Section 103.9. Of more use to the Department, with fewer restrictions, are Inspector Daily Reports. These documents contain detailed records of what occurred on site. Therefore, it is essential that the IDR's be completed in an objective manner using third person voice to maximize the impartiality of the facts they contain. Most disputes can be settled in the field when both parties understand the contractual requirements and respect one another's contractual rights. It takes both sides to be able to have a trustworthy working relationship and clear understanding of the Contract Documents. When disputes cannot be resolved then they are escalated via the claims process identified in Section 105.15. The claims process aids in dispute resolution by identifying the specific details and impacts and allows for negotiation of any compensation can be negotiated by both parties. If the Department and the Contractor cannot mutually agree on a resolution, the claims process is escalated to an arbitration panel.

It's extremely important that the Engineer and his assigned representatives be thoroughly prepared by keeping good records starting with inspector's daily reports, correspondence, memos to file, e-mails, etc., that pertain strictly to the facts. Responses should be prompt and complete to the Contractor addressing the issue. Correspondence needs to be professional and impersonal keeping in mind that it is discoverable evidence that may be used in the future. It's important to understand the Contractor's claim and formulate a response that addresses the issue with facts. It's also important to know what you can support and the range in the settlement agreement prior to going into any negotiation settlement. What is it that you can offer and can't offer? What is it that you can exchange or expect to receive in return. Always verify information that is provided and don't trust that everything presented to you is correct. It's important that you control the negotiation by making sure that you are well prepared prior to going into a meeting with the Contractor.

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Section C12.00 - Contract Changes

C12.01 - General

Contract changes refer to any authorized revisions that affect the contract after the Project has been awarded. They may pertain to an increase or a decrease in the units of work originally proposed or the addition of new items of work. These changes should be kept to an absolute minimum, and they should only be favorably considered when they are monetarily or materially beneficial to the State. Contract changes can include any modification of items, quantities, material requirements, specifications, and changes in allotted contract time. Any deviation from the scope of the original contract must be documented and approved via a Change Order.

Whenever a change cannot be completed at the original unit bid price, a new price must be negotiated. Negotiated prices and new item prices will be approved only on a Change Order. Changes can result from a number of different causes.

Causes are discussed in detail in the following Subsections of the Specifications

Cause of Change	Specification Reference
Contract Changes, Significant Changes in the Character of Work, and Suspension of Work	104.2
Value Engineering	104.11
Hazardous Materials Discovered within the Project Limits	107.14
Extensions of Contract Time	108.7
Claims for Adjustment and Resolution of Disputes	105.15

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C12.02 - FHWA Requirements

Whenever major changes are anticipated on a Federal-Aid PoDI project, FHWA should be advised of the requested change. Non-major changes may be approved by FHWA after the effective date of the change.

For further information refer to: Stewardship & Oversight Agreement between FHWA & DelDOT.‍‍

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C12.03 - Contract Revisions, Changes, Significant Changes in the Character of Work, and Major Items

Any plan revisions, adjustment of Contract Item quantities, or similar alteration that the Department determines to be necessary for completion of the Work, is a Contract Change, as found in Section 104.2 of the Standard Specifications. Contract Changes are paid for with Change Orders.

Significant Changes in the Character of Work shall only apply under the following circumstances:

• When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction.
• When a major item of work, as defined in Section 101.3, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original pay item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.
• When a specialty item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original pay item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.

If a Significant Change in the Character of Work occurs, the Department will make a contract adjustment, excluding anticipated profit, for alterations or changes in quantities that significantly change the character of the work or that cause other work to become significantly different in character. The Department and the Contractor shall agree on the basis for the adjustment before the Contractor performs the work. If the Department and the Contractor cannot agree on a basis for the adjustment, the Department will make an adjustment either for or against the Contractor in accordance with Section 109.4 - Compensation for Changes, and 108.7 - Extensions for Contract Time.

The Inspector should be aware of any conditions on the Project that may constitute a change in the character of the work. A change may only be directed by an authorized representative of the Department and will typically be directed through a letter, memo, e-mail, or revisions to the Plans. Changes may also be directed during progress meetings or in the field.

The Contractor is required to provide written notice to the District Construction Engineer any time it believes there has been a change in the character of the work. However, this does not mean that the Inspector does not need to keep detailed records until such notice is received. Any time the Inspector believes there to be a change, the Project Resident is to be informed. Documentation of the change, from its origin through its resolution, must be kept. For example, copies of all letters, memos, and meeting minutes pertaining to the change should be kept. If direction was given in the field, it should be noted on the Inspector’s Daily Report, including the date, time, who the direction was given to, and what the direction was. If the change came from revisions to the Plans, the Inspector should review and file the revisions as described in Section C10.12 of this Manual.

Before the Contractor performs any work that is considered a change, compensation must be negotiated. Section 109.4 provides more information on the three methods of compensation: Unit Prices, Lump Sum, or Force Account. Field Force Account procedures can be viewed in Section D6.05 of this manual.

As the Department’s representative in the field, the Inspector is responsible for ensuring that the additional work covered by the Change Order is administered properly.

The Inspector can effectively administer the additional work covered by the Change Order by using three principles listed below:

• Track Documentation - Always know what documentation is needed, who is responsible for providing it, when it is to be provided, where it should be filed, and who should get copies. This will keep the Project records complete and ensure that the Inspector has all the information needed to administer the change.
• Keep the Project Resident Informed - Always let the Project Resident know of any conditions that may result in a change, the status of all Change Order work, and any potential problems that occur in the field. The Project Resident is responsible for all work performed in the field. Keeping the Project Resident informed enables them to manage the Project effectively.
• Keep Detailed Records - Always maintain detailed records of the Change Order work performed on the Project and all other work being performed at the same time.

Detailed records are important for payment, completion of the Project, and can help with claims the Contractor may submit. Refer to Section C17.00 of this Manual for more information on the importance of good record keeping.

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C12.04 - Differing Site Conditions

A differing site condition (DSC) is any site condition meeting the definition in Section 104.2.C.

This definition describes two types of differing site conditions:

• Subsurface or latent physical conditions at the site differing materially from those indicated in the contract - Examples include rock being lower or higher than anticipated, encountering water in the soil where none was expected, or discovering portions of an old roadway that prevent the driving of piles as planned.
• Unknown physical conditions of an unusual nature - An example of this is the discovery of contaminated soil in an area where there was no indication that contamination may be a problem.

The Contractor is required to notify the Department any time it encounters a differing site condition and the Contractor is to stop work in that area until the change can be investigated. Any differing site condition may result in a Change Order, so the Inspector must keep detailed records beginning as soon as the condition is encountered and the Inspector should record the date, time, location, and condition. The Inspector should also make detailed notes regarding any equipment and labor idled as a result of the differing site condition. The Inspector should also note what other work was proceeding when the work is stopped, what work was begun after the work was stopped, and what portion of the Contractor’s equipment and labor was moved to the other work activities.

The Department will investigate the alleged differing site condition to determine if it is in fact a change and how it should be addressed. This may happen quickly, or it may take several days. The Inspector should keep detailed notes of all conversations regarding resolution of the differing site condition as well as any oral direction given. The date and time of all site visits made by the designers or members of the District office should be recorded. Detailed records of all equipment and labor idled should continue to be made. For example, instead of recording idle equipment as “bulldozers idle,” record it as “6 bulldozers idle all day (8 hours).” This information will be needed later when the Department and the Contractor negotiate a settlement.

The Inspector should review the Contractor’s schedule to determine what impact the differing site condition may have to the critical path and project completion. Impacts on other important items, such as changing the traffic pattern or material deliveries, should also be noted. The Contractor is responsible for addressing these items; however, the Inspector is still responsible for being aware of Project conditions.

Upon the resolution of the DSC, assuming the Department makes said determination, a price and a potential time extension will be negotiated and a Change Order will be processed. The Inspector should know how the Change Order is being paid so that proper records can be kept. Refer to the payment discussions in Section C12.03 above for more information.

As the Department’s representative in the field, the Inspector is responsible for ensuring that any Differing Site Conditions, and resultant Change Orders, are documented, inspected, and managed properly. They can do so by using these four principles:

• Verify the Differing Site Condition - When the Contractor notifies the Inspector that it has encountered a differing site condition, review the field conditions, Plans, Standard Specifications, and Special Provisions to verify there is a difference. Inform the Project Resident. The Inspector does not have the authority to make a final determination regarding a differing site condition; however, the Inspector is responsible for knowing the Plans and Specifications and should be able to explain the situation to the Project Resident.
• Expedite the Resolution - Per Section 104.3.B, the Contractor may only perform work associated with a change after receiving written direction from the Engineer. Therefore, the situation must be resolved as quickly as possible to minimize delays to the Project. The Inspector should ensure that all paperwork is completed and supervisors are informed as required concerning the differing site condition and its resolution.
• Verify the Resolution - When the differing site condition is resolved via a sketch, a revision to the Plans, or a modification of the Specifications, the Inspector should compare the resolution to the Plans and Specifications. The Inspector should ensure that it is consistent with the rest of the contract and the field conditions. The Inspector should also ensure that the solution is clear and legible; a fax of a sketch may be hard to read, further delaying resolution of the differing site condition as the Contractor requests clarification.
• Keep Daily Records - Always maintain detailed records of the DSC work performed on the Project and all other work being performed at the same time. Detailed records are important for payment, completion of the Project, and can help with claims the Contractor may submit. Refer to Section C12.03 of this Manual for more information on the importance of good record keeping.

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C12.05 - Suspension of Work and Contract Time Extensions

The Engineer may suspend all or part of the work by informing the Contractor in writing. Suspensions of work are not entitled to compensation unless the Contractor provides notice under Section 104.3. Information the implications for Change Orders are discussed in Section C12.03.

Even though the work is suspended, the Contractor is still required to fulfill the requirements of Section 104.13.C. During a suspension, an Inspector is also required to keep accurate records of the Project. On the day the suspension takes effect, the Inspector should record all working equipment that became idle because of the suspension. The conditions of the Project site should be recorded, including materials stockpiled and completion percentages for work in progress. The Inspector should also record all work necessary to shut down the Project, such as drainage, weather protection, traffic controls, and security measures.

Contract time extensions, when granted by the Department, are shown on the appropriate Change Order, along with all the justification for the extension. Information on extensions of Contract Time and the implications for Change Orders are discussed in Section C12.03.

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C12.06 - Value Engineering Proposals

A Value Engineering Proposal (VEP) is a proposal submitted by the Contractor to modify one or more aspects of the contract. A VEP allows the Contractor to propose changes to the Work that will result in a savings to the Department; however, VEPs may not propose modifications that would affect the essential operating functions of the completed Project. The purpose of a VEP is to encourage innovation the Contractor. If the Department accepts a VEP, it will split the savings that result from the modifications to the Contract Documents. For further information please refer to Section 104.11 of the Specifications.

When a Contractor submits a VEP, the Department reviews it and either accepts or rejects it. Until the VEP has been accepted, the Contractor is required to proceed with the Work in accordance with the original Contract Documents. The Inspector should be aware that the Contractor may slow down its work in anticipation of approval of the VEP. While this is understandable, as the Contractor does not want to perform work that would be changed if the VEP was approved, it is not allowed by the contract. Therefore, the Inspector should keep good records of work being performed. If the work being performed differs from the Contractor’s Schedule of Work, this should be noted. As explained in Section C12.03 of this Manual, good Inspector’s Daily Reports will help avoid Contractor claims.

Once a VEP is approved, the change is handled in much the same way as a change in the character of the work, discussed in Section C12.03 above. The Inspector should ensure that copies of the Contractor’s revised Schedule of Work, revised Plans and Specifications, and the Change Order are included in the Project file. The Inspector should review and be familiar with all these documents. They are a part of the Contract Documents, and the Inspector is as responsible for knowing and enforcing the VEP as he or she is for enforcing the original contract.

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C12.07 - Claims for Adjustments and Resolution of Disputes

When a Contractor submits a claim to the Department; it is evaluated as described in Subsection 105.15 of the Specifications. This evaluation is made by the District and usually does not directly involve the Inspector. However, the Inspector should be aware that their daily reports and other Project documents will be used by the District to assist in evaluation of the claim. Therefore, this information should be complete, detailed, accurate, and organized in order to facilitate the District’s evaluation.

If the Department agrees with all or part of a Contractor’s claim, it will issue a Change Order to award additional money or extend the Contract time. If a claim is submitted and decided while the other work on the Project is progressing, the Inspector should ensure that a copy of the Change Order is on file in the field office. The Inspector should be familiar with the Change Order in case it affects other work on the Project.

Claims not settled at the District level will be forwarded to the Claims Committee for evaluation.

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C12.08 - Extensions of Contract Time; Weather Delays and Failure to Complete on Time

Delays to project completion are discussed in Section C6.00, C13.09, C13.11, C13.12, and C13.13. The Inspector should review these Sections of this Manual and the associated requirements in the Specifications, as found in Section 108.7, Section 108.8, and Section 108.9.

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C12.09 - Adding Contract Changes via Change Orders

Change Orders are paid for by Unit Price, Lump Sum, or Force Account. Each of these methods requires that detailed records be kept in order to determine payment for work performed:

• Unit Price - Payment by Unit Price requires that the Inspector keep the same type of records for the Change Order work as for the contract work. Whenever possible, it should be clearly noted on the Inspector’s Daily Reports what portion of an item was Change Order work so that the Contractor is paid only for the work agreed to in the Change Order.
• Lump Sum - When work is paid for by Lump Sum, the cost of the work, regardless of actual quantities, is agreed to before the work begins. Payment is made based on the Contractor’s progress. For example, when the Contractor has completed 50 percent of the work, it will be paid 50 percent of the lump sum. The Inspector must review the method to be used so progress can be tracked and payment can be determined.
• Force Account - Payment by Force Account may be resorted to when unit prices or a lump sum is not applicable, or whenever a mutual agreement cannot be reached.

During the execution of the work, the Inspectors should maintain detailed daily records of all Force Account activities. At the end of each day, the Inspector and the Contractor’s representative must sign the completed daily Force Account form. Both the Inspector and the Contractor should execute the work with the utmost honesty and integrity to ensure that it is being performed in the most efficient and expeditious manner. The Project Resident should personally, or by delegation, oversee the Force Account work when necessary, so that the desired result will be accomplished using the least possible amount of labor, materials, and equipment.

Force Account submissions to the Area Engineer must include:

• The original completed change order form.
• Copies of all pertinent correspondence.
• A signed copy of all Inspectors’ Daily Force Account records.
• A copy of the Contractor’s paid invoices for all material furnished and freight charges paid.
• Certified Payroll for all the Contractor's staff included on the Force Account
• A copy of the Equipment Watch Blue Book rates for all owner equipment used on the Force Account.
  • The Department maintains one license to access Equipment Watch and verify the submissions.

For more information on Force Account records, refer to Section 109.4 of the Standard Specifications. Inspectors can find more information on Force Accounts in Section D6.05 of this manual. Templates of the force account document are also available under Part G - Standard Forms.

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C12.10 - Change Order Processing Procedure

Whenever any of the previously described changes to the contract take place, work is added to or deleted from the Project, or the proposed quantity is excessive or insufficient to complete the work as shown on the Plans, the Project Resident should create a Change Order. With updates to our eConstruction system, Change Orders are completed solely within Unifier, and a detailed breakdown of the Unifier Business Process, including Change Order Reason Categories, can be found in Section F3.02 - Change Orders.

When creating the Change Order, the Project Resident must identify the quantity of the change, the reason category for the change, and remarks describing the reason for the change. Remarks must be thorough but brief descriptions of the reason for the change. Explanations like “did not need quantity” or “needed additional quantity to complete contact” are not acceptable because they lack the detail needed to justify the funding increase and for the designer to make corrections on future contracts. When completing the Change Order, the Project Resident should ensure that relevant documents are linked to the Change Order record within Unifier. This includes records like Requests for Information, Submittals, Price Approvals, Quantity Adjustments, etc. Once complete the Project Resident will send the Change Order to the Area Engineer for review.

The Area Engineer, after reviewing the Change Order documentation and verifying that the required funds are available, will forward the Change Order to subsequent approval steps for their review. Depending on the project, and the specific changes identified, these reviews may include the Design Project Manager, the Construction Group Engineer, and/or the FHWA Area Engineer. The Contractor then gets a chance to review the Change Order, before it is received by the District Estimator for review, final approval, and input into Funds Allocation for Capital Transportation Systems (FACTS) (Link for Internal Use Only). Upon final approval of the Change Order, it is distributed to the relevant parties via Unifier.

Typical projects are funded with a contingency of two to five percent, depending on the size of the project. Once the original contingency funds are exhausted, a contingency increase must be requested by the Group Engineer and approved by the Division of Financial Management and Budget. Inspectors must notify the Area Engineer as soon as a change that will require a contingency increase is necessary. Refer to Section 9.02 of this Manual for more information on the Request for Contingency Increase/Decrease.

Change Orders need not be linked to the monthly estimate process. When a change occurs, such as new items being added to the project, field staff is encouraged to submit a change order immediately. Similarly, the field staff is encouraged to account for quantity reductions as soon as reasonable, and avoid "holding" money, to ensure an accurate representation of the available funding on a project. This is to allow for an accurate accounting of the available funds and contingency on a project, and ensure funding is available for payment when the work is completed.

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C12.11 - Change Order Funding Breakdowns for Third Party Funding Account

Third Party Funding Accounts were previously referred to as J Accounts

In order to standardize the procedure for submitting Change Orders when both Federal participating and non-participating money is involved.

Please follow the guidelines listed below:

• Turn in separate Change Orders for FHWA Participating, FHWA non-participating, and Third Party Funding Account items.
• Best practice, even when the item was a bid item, is to create separate items (with unique section numbers) within Unifier for each type of funding to allow for easy tracking by the estimator of the different funding sources for the work. Third Party Funding Account are funds reimbursed to the State from utility companies, municipalities, or private sources. All items involved in reimbursable work must be separated in the above books.
• Additionally, check the contingency limit shown on each Change Order and advise the Area Engineer as soon as it appears that more funds will be necessary to increase the contingency limit. Check with the District Estimator if there are any questions on the above.

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Section C13.00 - Contract Time Charges

C13.01 - General

Each contract is assigned a specific length of time in which the Work must be completed. This length of time is called Contract Time and is defined in the Standard Specifications. The allowable time and the method for assessing time charges are indicated in the Bid Proposal. The allowable time is indicated as a specific number of C13.02 Working Days, C13.04 Calendar Days, or, in some instances, as a C13.05 Pre-Determined Completion Date. In rare instances, the contract may specify a completion date for a portion of the contract and allow a specific number of Working Days or Calendar Days for the remainder of the contract. Refer to Section 108.3 of the Standard Specifications for precise details.

When a Contractor fails to complete the work within the Contract Time, including any time extension that may have been authorized by the Engineer, the Contractor is assessed C13.11 Liquidated Damages. On some contracts, the Contractor may be assessed C13.12 Road User Cost Charges in accordance with the Bid Proposal.

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C13.02 - Working Days

When time charges are to be based on Working Days, the allowable number of working days is clearly indicated in the Bid Proposal. Working Days are defined in the Standard Specifications under Section 101.3 and Section 108.3.

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C13.03 - Working Day Charges

All Working Day charges are to be clearly recorded and maintained by the Project Resident. Whenever the Working Day charges are recorded as “0” or any fraction of a full day, the Inspector should write an explanation within the record for each such entry.

The Working Day Chart should be maintained within the Document Manager in Unifier and should identify the following data:

• Calendar Days (From first day of work to acceptance date)
• Working Day or portion charged on each.
• Accumulated Working Days to date.
• Reasons for charging “0” or fractional days.

Extra Work due to a Change Order should not reflect in the daily Working Day charges. Working Days should continue to be recorded as usual.

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C13.04 - Calendar Days

When the Calendar Day method for assessing time charges on contracts is specified, the cover sheet of the Bid Proposal will show the number of days allowed.

Calendar Days are defined in the Standard Specifications under Section 101.3 and Section 108.3 and are charged for every day, including Sundays and defined Holidays. Sundays and defined Holidays, however, may only be worked if the Contractor requests and receives approval from the Department for working on said days. The Contractor may only work these days after requesting and receiving approval from the Department for said work. Low production days, non-productive days, or delays of any nature are to be included in the accumulated time. Fractional day charges are not to be credited on Calendar Day contracts.

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C13.05 - Pre-Determined Completion Date

Some contracts may require that all or a portion of the work be completed by a pre-determined date, even though the overall Contract Time is on a Working Day or Calendar Day basis.

Some examples that may justify a predetermined completion date are as follows:

• The use of allocated funds may expire on that date.
• The use of the new facility may be desired or necessary at that time.
• Active construction may be undesirable in a particular area after a certain date.

When the work is not finished by the pre-determined completion date, the Contractor must have the permission of the Engineer to continue. Such permission should not, however, be construed as a time extension; it is merely authorization to complete the contract. When permission is granted to work on the Project beyond the pre-determined completion date, liquidated damages and road user cost charges may be assessed daily in accordance with the contract and deducted from payable estimates. The liquidated damages and road user cost charges may, however, be partially or wholly voided at a later date by the granting of an official time extension.

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C13.06 - First Day of Work

The first day of work on a contract is an important date, and it should be established firmly and accurately. It cannot occur until the Notice to Proceed (NTP) has been issued. It is normally defined as the first day of the work on a Contract Item by the Contractor or the tenth day after the issuance date of the NTP, whichever occurs first. The Bid Proposal should be carefully reviewed for possible exceptions to this procedure.

The Contractor may elect to move equipment and materials to the Project site prior to the first day of work. The Contractor may also erect miscellaneous warning and other signs before the first day of work. These advance operations should be done only with the approval of the Construction Engineer.

The Contractor is responsible for advising the Construction Engineer of its proposed first day of work; the Contractor cannot begin work until after such notification. The Project Resident should send the Area Engineer a memo documenting the activities performed on the first chargeable day. The information should also be clearly recorded in a Inspector Daily Report.

After being advised that the work has started, the Construction Engineer should immediately create a record within Unifier under the Time Charge Notices Business Process and include the following pieces of information:

• The date of the first day of work.
• The nature of the initial operations.

A default template for the distribution list for this record can be found under the CC List Business Process

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C13.07 - Temporary Suspension of Work

Temporary Suspensions of work may be referenced in Section 104.2.D of the Standard Specifications. A temporary suspension of work is a period during the span of a contract when the work, either wholly or in part, is ordered or allowed to cease. A temporary suspension of work may be initiated by the Contractor, the Construction Engineer, or staff personnel; however, official authorization to temporarily suspend work must be in writing from the Construction Group Engineer. Prolonged periods of inactivity due to weather conditions or other unavoidable reasons are usually sufficient justification for the consideration of a temporary suspension.

When the Contractor wishes to have the Project temporarily suspended, the request, and the reasons therefore, should be in a submittal from the Contractor to the Area Engineer. The request will be reviewed by DelDOT staff to determine if it is in the best interest of the Department. The Area Engineer may recommend approval or disapproval of the request to the Group Engineer. The Group Engineer recommending suspending the Project temporarily will seek FHWA’s verbal concurrence if the Project is a Federal-Aid oversight project. If approved, a Time Charge Notice will be initiated and the Group Engineer will inform the Contractor of the decision regarding the request for suspension. Copies of this letter are forwarded to the Area Engineer, State Department of Labor & Industrial Relations, Materials and Research Section, and other interested parties. This should be achieved through the Contacts and CC List Unifier Business Processes.

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C13.08 - Resumption of Work

The Contractor may request, or the Area Engineer may order, the resumption of work following a suspension of work. If the Contractor wishes to resume work, it must advise the Engineer before resuming work. If the resumption is ordered by the Area Engineer, it is advisable for them to discuss the resumption date prior to issuing the order. Regardless, the contract suspension will be lifted as soon as the best interests of the Department will be served. The Area Engineer will utilize the existing Time Charge Notice record the end of the suspension and send the record to the Group Engineer for review and approval. Upon approval, this record will be automatically distributed to the same parties as the initial suspension letter.

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C13.09 - Extension of Contract Time

The allotted Contract Time may be extended, when justified by the circumstances on the Project, in accordance with Section 108.7. The Change Order Business Process contains fields for Contract Time adjustments and also keeps a log of prior adjustments. This is the sole mechanism to adjust the duration of a Contract. Documentation of the justification for the adjustment to contract time must be attached to the Change Order.

The Contractor, via a Unifier Submittal, can submit a letter requesting an extension of time. This letter should state clearly and accurately the length of additional time requested and all justifications for the extension of Contract Time, based upon the contractual requirements. The request for a time extension should be submitted as soon as the need for an extension has been definitely established, and it should precede the expiration of the initial time allotment.

A request for an extension of Contract Time will fall into one of the following categories:

• Excusable, Non-Compensable Delays
• Excusable, Compensable Delays
• Non-Excusable Delays
• Concurrent Delays
• Weather Delays

The Area Engineer will review all aspects of the request for an extension of time, determining if the appropriate notice criteria is met, if the schedule is current and approved, and if the impacts to the schedule are appropriate. When a requests is retrospective, extensions are determined based upon comparing approved schedules before and after the work to identify actual impacts. When a request is prospective, the Contractor should use the time impact analysis to determine impacts, based upon the most recent approved schedule. More detailed information can be found in Section 108.7. After the Area Engineer completes their review they will consult with the Group Engineer and the FHWA Area Engineer, as needed, for concurrence. If a request is determined to be excusable, by the facts and supported by the Specifications, the Area Engineer will respond to the submittal in Unifier. Copies of this submittal are normally sent to the Group Engineer, Estimator, Project Resident, Materials and Research Section, Project Designer, and other interested persons.

The Submittal response will specifically state the number of additional days allowed, and it should be used to determine the revised completion date or the length of time remaining. Liquidated damages will not be assessed for the period covered by the time extension.

Before a Change Order is sent for processing, the Area Engineer must obtain concurrence from the Contractor if there is an impact to the critical path. If modification of the Contract Time is warranted, it will be shown on the applicable Change Order and sent for signature. After signature, the Change Order work activities and any time modifications that affect the CPM schedule will be reflected in the next CPM schedule update. No Change Orders will be processed until their effect on the CPM schedule has been determined, unless otherwise approved by the Engineer.

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C13.10 - Substantial Completion

As defined in Section 101.3 of the Standard Specifications, Substantial Completion is "the point at which the Department deems all contract items are complete excluding any warranties or vegetation growth." The Construction Group should continue to charge time to the Contractor until all originally bid contract items and any added work items which have been analyzed for time considerations are complete and eligible for payment. This includes initial applications of seeding and mulching and initial planting of any landscaping items. Only minor items such as crack sealing, if not a pay item, maintenance of topsoil and/or seeding, items damaged by traffic, or similar activities will be considered "non-chargeable" punch list items in regard to time assessment.

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C13.11 - Liquidated Damages

Liquidated Damages are not a penalty, and per Section 101.3 of the Specifications, are "an amount due and payable to the Department by the Contractor if the contractor fails to complete the project within the contract time." Section 108.8 of the Standard Specifications identifies the requirements if the Contractor fail to complete on time. The specific rates of assessment are found in Section 108.9 of the Standard Specifications. Liquidated damages will be assessed on progress payment estimates and the final estimate. When liquidated damages are assessed and are later wholly or partially voided by an official time extension, compensatory monetary adjustments should be made accordingly and noted on the subsequent estimate or final payment.

Note: If the Contractor fails to complete all punch list work identified during the initial and primary inspections within the timeframes allotted, Liquidated Damages will continue to be assessed. However, Section 105.16.B.5 requires that the assessment of liquidated damages in this time period, be at 10 percent of the value found in Section 108.9. The assessment of post-substantial-completion liquidated damages will continue until project completion.

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C13.12 - Road User Cost Charges

In addition to liquidated damages, the Contract Documents may also contain Road User Cost Charges that apply if the Contractor fails to complete the Project in the allotted Contract Time. As with liquidated damages, Road User Cost Charges are assessed on progress estimates and the final estimate. The Inspector must review the Special Provisions to determine if the Project has a calculated Road User Cost Charge.

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C13.13 - Contractor’s Progress

It is imperative that the Project Resident and the inspectors constantly be aware of the Contractor’s progress. When a continual lag between the Contractor’s progress and the elapsed Contract Time develops, and the Contractor is making no appreciable effort to improve its progress, the Inspector should advise the Contractor that its progress is unsatisfactory. If this lag continues, it should be brought to the attention of the Area and Group Engineers, who in turn should advise the Contractor in writing of the unsatisfactory progress.

In addition, the Engineer should request a revised progress schedule from the Contractor. The revised schedule should indicate how the Contractor proposes to improve progress and complete the contract within the allotted time.

The Inspector should also monitor the Contractor’s progress to be aware of work being completed out of sequence. If the Contractor completes work out of sequence, it should be reflected in the next schedule update. Many Contractor claims deal with Contract Time issues; therefore, it is important that detailed records pertaining to changes to the Contractor’s work sequence and Schedule of Work are kept.

As noted in Section 108.4.B.3, the Contractor is required to submit bi-weekly updates to its Schedule of Work. These submittals should be made through Unifier, and the Area Engineer should ensure it is distributed to all inspection staff.

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C13.14 - Saturdays, Sundays, and defined Holidays

The Specifications should be reviewed with regard to performing work on Saturdays, Sundays, or defined Holidays. The Holidays that are to be honored are listed in Section 101.3 of the Specifications. Unless superseded by the Standard Specifications or the Special Provisions, Saturdays, Sundays and Holidays are not normally considered Working Days when determining the time requirements for a contract.

Work may progress on Saturdays at the Contractor’s discretion, or if the circumstances necessitate, so long as written notification is provided to the Area Engineer no later than noon on Friday. It is preferred that this notification be provided as far in advance as possible to facilitate appropriate staffing. Work performed on a Saturday, should have no bearing on Calendar Day charges or a predetermined completion date. Working Day charges should not be accumulated for Saturday work.

Work is not permitted on Sundays or defined Holidays unless written authorization is issued in advance of the date(s) by the Area Engineer or if permitted by the Special Provisions. Requests to work on Sundays and defined Holidays should normally be initiated by the Contractor via a letter to the Area Engineer. This should be followed by the Construction Group's approval or rejection in a letter to the Contractor.

The Standard Specifications contains a list the days considered as defined Holidays in the State. These days should not be confused with holidays as declared in the Proposal. The Project must be properly staffed for inspection purposes when work is permitted on defined Holidays.

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C13.15 - Field Requested End Date

The Field Requested End Date (FRED) is a prospective date in which all work, including punch list work and the associated Final Estimate, is completed on a project. It is unique and distinct from Substantial Completion, which is defined under Section 101.3 of the Standard Specifications. The FRED is an internal tool for the Department to allow Construction to communicate to Finance when its phase of the work will be complete. Finance, in turn, uses these dates to inform FHWA when the Department has finished spending funds on a project.

The Area Engineer assigned to the project will typically select a FRED that is two years after the anticipated Substantial Completion. Once a project is underway, any time extensions made via Change Order will automatically extend the FRED. After Substantial Completion, if there are any delays in closing out the project, the Area Engineer will need to manually update the FRED. These tasks can all be completed in the Field Requested End Date Business Process

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Section C14.00 - Estimates for Payment

C14.01 - General

Most Department contracts involve the expenditure of many thousands of dollars and require months to complete. For this reason, payments to the Contractor are based on progress estimates. In essence, the work is paid for as it is being completed. In addition, Semi Final and Final Estimates are also prepared and submitted for Department approval and payment.

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C14.02 - Progress Payment Estimates

Progress estimates are payments representative of the amount of work completed during the preceding period. Progress estimates are typically paid on a monthly basis until Substantial Completion but may be completed more frequently upon request from the Contractor. The closing date (cut-off date) for each estimate may be determined by the Construction Engineer. It is recommended, however, that the same day of each month be considered as the closing date for a given contract once the initial closing date has been established. While many Contractors may prefer a closing date at the end of the month, across all projects it is preferred to distribute the dates throughout the month to balance the workload for estimating staff.

Information for the progress estimates is obtained by the field inspection staff. The initial recordings of measurements made for progress estimates are called Source Documents. More information on Source Documents can be found in Section D6.04 of this Manual. Source Documents are generated based upon direct measurements and calculations of the field inspection staff, or the survey party chief in certain instances. The Source Document quantities are then included on the D6.02 Inspector Daily Report (IDR), and the quantities on all IDR's for a given period are compiled together for the Progress Estimate. Progress is presented in the form of actual units of Contract Items (Pay Items) completed during the past estimate period. In order to expedite progress estimates, it is acceptable to pay for items such as clearing and grubbing and borrow on an estimated basis. All such estimated quantities should be realistic, and care should be exercised so as not to allow more than the amount of work actually performed. Whenever possible, the Contract Items should be measured, not estimated, for inclusion on the Progress Estimate.

The following procedure must be used in preparing progress estimates:

• All IDR's for the period must be approved.
• Staff should first run Unifier Report 3 for the period, to verify there is sufficient approved quantity on all Pay Items to make a payment.
  • If there is insufficient quantity, staff should first generate a Change Order, adding quantity as necessary.
• Staff should then create a new Pencil Estimate, using Pencil Estimate Business Process within Unifier. This record will be reviewed and approved by the Project Resident, Contractor, and Area Engineer.
• Upon review and approval of the Pencil Estimate record, the Area Engineer should generate a new Progress Estimate using Unifier's Progress Estimate Business Process.
• The Progress Estimate will then be reviewed by the Construction Group Engineer, Contractor, Assistant Director (if Final Estimate), and the Estimator. Upon approval, the Estimator will enter the record into FACTs for payment.

The Progress Estimate should be submitted within 5 days after the agreed upon monthly estimate cut-off date. The Estimator, Area Engineer, and field staff should clearly communicate throughout the life of the project on any unique circumstances, such as Liquidated Damages, Retainage, J-Account work, and Advanced Material Payments. prescribed retainage should be deducted from the payment due as indicated on the Estimate Form.

Note that the Contractor’s approval is required on Progress and Final payment Estimates. The Contractor’s approval of the estimate indicates that it is in full agreement with the number of days shown on the estimate to have expired. No estimates are to be processed without the Contractor's Approval.

Within 30 days of receipt of a monthly estimate payment, the Contractor must pay its Subcontractors and suppliers. The Contractor is required to submit verification of this payment through DelDOT's Civil Rights Compliance Reporting System. Staff is encouraged to coordinate with the Civil Rights office to ensure the Contractor is in compliance with this requirement. Any non-compliance should be addressed by the Area Engineer in a prompt manner.

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C14.03 - Payment for Stored Materials

Under Section 109.9 of the Standard Specifications, the Contractor is permitted to request payment for stored materials. Stored Materials must meet the following requirements:

• Materials cannot be perishable and must be something that will be a permanent part of the completed work.
  • For instance: fuels, form lumber, falsework, temporary structures, stored cement, aggregate, sand, seed, plants, fertilizer, etc. are not acceptable.
• Materials must be tested and meet the requirements of the tontract.
• Material must amount to at least $25,000 per pay item. (A material payment for drainage inlets or pipe cannot be made unless the value for the individual sizes exceeds this amount.)
• Request must include an itemized inventory statement, written consent of surety, and an invoice from the supplier documenting material costs.
• Material storage location must be approved by the Area Engineer. If stored outside of the project limits, the payment request must include a release from the property owner or tenant stating that any fees in the lease agreements for removing the material from the property are the responsibility of the Contractor and not the Department.

If the above conditions are met, the Area Engineer may make a payment allowance of 100 percent of the Contractor’s material costs, not to exceed 90 percent of the pay item price. Once payment is made, the Contractor must submit proof of payment to the Department before the next progress estimate. As materials that have been paid for are incorporated in the Project and paid for in place, a percentage of the material equal to the percentage of the Contract Item being paid should be deducted from the payment until 100 percent has been deducted. Care should be taken to ensure the reduction in the material payment does not exceed the value of work completed. The Project Resident should carefully track these items and frequently update the Area Engineer and the Estimator on their use.

For example, precast concrete beams are often delivered to a project before they are used, and the Contractor will request payment for the material. Payment for precast concrete beams includes payment for both the materials and the labor to place the beams. Therefore, an adjustment must be made so that the Contractor is not paid for the material twice. Assume that 25 percent of the total precast beams are installed in a month. When the progress estimate for that month is calculated, the Contractor will be paid for 25 percent of the precast concrete beams Contract Item. However, in order to prevent double payment, 25 percent of the cost of the line item for payment, which was previously paid, should be deducted from the progress estimate.

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Section C15.00 - Utility Adjustment Procedures

C15.01 - General

In cases where the Contractor is working near or exposing existing facilities, all local, state, federal and utility owner requirements shall be followed. This also requires the Contractor to properly protect existing facilities from damage. Frequently, when the installations facilities of public and/or private utility companies are affected by the construction or improvement of a highway, the utility companies are obligated to relocate and protect such portions or sections of their installations as necessary to facilitate the construction or improvement of the Project. In some instances, the State may reimburse the utility company for the cost of such work; in other cases, it may be necessary for the utility to bear the cost of such work. Please visit Section B2.06 - Utilities and Section B2.07 - Private Participation of this manual for more details.

Where the cost of the necessary relocation and adjustment of a utility facility is an obligation of the State, a utility agreement for performing relocation is generally negotiated between the State and Utility Company. Utility facilities are adjusted or replaced in accordance with Department policy.

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C15.02 - Utility Statement

A Utility Statement is part of the Special Provisions of the Department’s contract. A Utility Statement is generated for each contract to outline potential impacts, timing, and other requirements. In addition, the statement lists all known utilities that reside with-in the contract limits. The Utility Statement will list a point of contact, the location of all known utility conflict(s) and how the utility will resolve the conflict, including the duration of the utility construction/relocation and how much advance notice the Contractor must give to the utility to allow the utility to eliminate the utility conflict. The Contractor’s means and method of construction are not taken into account when known utility conflicts are identified. If the Contractor’s means and method of construction create a utility conflict the Utility Statement will prevail in discussions with the utility and the Contractor.

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C15.03 - Utility Sequence Changes

At times, the phasing of a project and sequence of construction may need to be change to account for conflicts, Department needs, or Contractor requests. These changes may cause impacts to utilities, requiring that they not adjust facilities that were previously to be adjusted, adjust facilities that were previously not to be disturbed, or change the sequence of the utility work that was described in the Utility Statement. If these changes occur, they must be coordinated with the Utility Companies. Due to the nature of utilities, changes that only appear to impact a single utility, must be coordinated with all utilities. To facilitate this coordination, a flow chart has been generated, identifying actions, responsible parties, and timelines for response. This flow chart was developed in cooperation between the Department and Utility Companies and should be followed.

A .pdf version of this flow chart is available here: PDF Version

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Section C16.00 - Miscellaneous Contract Requirements

C16.01 - General

There are many miscellaneous contract requirements that are not directly related to Contract Items. These are typically shown in the Plans and/or called out in the Specifications.

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C16.02 - Archeological and Paleontological Salvage

It is in the public interest to preserve for public use historical and prehistorical objects such as Native American ruins, sites, buildings, artifacts, fossils, or other objects of antiquity that many have significance from a historical or scientific standpoint. When it appears that significant historic or prehistoric objects have been or are about to be encountered during construction, the Inspector should immediately take steps to preserve them and notify the Construction Engineer.

The Construction Engineer, in turn, will advise the appropriate authorities within the State of the situation and permit them to inspect the site to determine the advisability of salvaging the objects.

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C16.03 - Required Notices and Posters

The Proposals for highway construction contracts state that certain documents must be displayed in a conspicuous place on the Project so that interested persons may be readily aware of their contents. These postings typically relate to Labor Relations, Environmental, or Stormwater Requirements.

The information required to be posted includes the following:

• Notice of Intent Posting (if applicable) As a condition of the DNREC Construction General Permit found in Section C.10, contracts which require a Notice of Intent must display a poster with the pertinent information on site. The requirements for the posting can be found under 3.6.1 of the E&S Handbook.
• Fraud Poster: As required by Section 1020, Title 18, United States Code, a Fraud Poster must be displayed during the course of work. It points out the consequences of impropriety on the part of any employees working on the Project. The names of the Department of Labor & Industrial Relations and the FHWA appear on this form.
• Wage Rates: The schedule of wage rates as shown in the Proposal and as subsequently modified or amended must be posted where all workers can view it. If more than one wage area is listed, the wage area applicable to the Project should be clearly defined.
• Equal Opportunity Posters: Contractors are required to post the prescribed equal opportunity posters. See: https://www.fhwa.dot.gov/programadmin/contracts/poster.cfm

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C16.04 - Enforcement of Labor Provisions

In order to fulfill the requirements of the Contract Documents, the Contractor must conform to all labor provisions included therein. It is the Contractor’s responsibility to be certain that the requirements regarding labor are properly carried out.

Checks and documentation of the labor regulations take a variety of forms, as follows:

• Posters: The required posters and wage rates must be posted on the Project when work is in progress.
• Payrolls: On all contracts, the Contractor must forward copies of the payrolls to the Department of Labor. On Federal-Aid projects, the Contractor must submit a weekly payroll copy, along with a certificate indicating that the attached payrolls are correct and complete, through Unifier. Authorized Subcontractors must provide the same information weekly.

On projects which receive certified payroll, the Certified Payroll SME, who is designated by the Area Engineer, is to examine the payrolls for conformance with the wage provisions of the contract.

Entries to be checked on every payroll include:

• Payroll should never include the employee's social security number, or full address.
  • A partial address is permissible.
• That the wages being paid to laborers and mechanics are not less than required in the contract.
• That the work being performed by any specific class of employees, including helpers or apprentices, conforms to the classification set forth in the contract for the wage they are being paid.
• Whether the wage classification is correct or if there appears to be a disproportionate number of lower paid help, such as laborers, helpers, or apprentices, indicating avoidance of minimum wage rules.
• Work classification and title code number for each employee.
• Hourly wage rates for each employee, including fringe benefits if applicable.
• Are daily and weekly total hours shown?
• Is the certification signed?
• Are deductions itemized?
• Are all deductions approved? Approved deductions are shown under Title 29, Code of Federal Regulations, Section 3.5. This is quoted in the FHWA Labor Compliance Manual.

At least the first two payrolls submitted by each Contractor or Subcontractor of each project should be fully reviewed for:

• Arithmetical Accuracy
• Overtime application and computations (over 8 hours per day and/or over 40 hours per week)
• Wage rates verified with those shown in the applicable contract
• Employee’s full name should be shown on the payroll when his or her name first appears. If full compliance is shown on the initial payrolls, the steps listed above can be performed on a sampling basis of subsequent payrolls, at the Engineer’s discretion. If it is found that the payroll has discrepancies and clerical errors, such errors should be called to the attention of the Contractor and corrections should be promptly made. Delay in prompt submittal of the required payrolls may cause delay in payment of monthly estimates to the Contractor.
• Employment Records: The terms of the contract require that the Contractor’s employment records be available during progress of the work and for 3 years after the Department has made final payment.
• Violations: Any complaints of violation of the labor standard should be forwarded to the Department of Labor. The FHWA Labor Compliance Manual https://www.dol.gov/whd/recovery/pwrb/Tab9.pdf indicates the disposition in case there is substantial evidence that the violations with regard to payrolls are willful or if restitution by the Contractor or Subcontractor is not made. Deliberate violation of the labor requirements regarding wages is a serious matter and cannot be tolerated.

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C16.05 - Determining Wage Classification

In checking payrolls and hearing complaints with regard to wage difficulties, the Engineer will be confronted with the problem of determining the actual classification in which an employee is working. Seldom is the solution clear-cut, nor does the State have the authority to determine definitely the classification in which the Contractor’s employee fits. For example, the Engineer does not have information as to the duties of a carpenter’s helper versus those of a carpenter. Therefore, final analysis in the case of a wage dispute must be resolved by the Department of Labor.

When a wage dispute arises, the District should obtain and assemble all the information available and forward it to the Department’s EEO Officer. For more information visit the U.S. Department of Labor webpage on the Davis Bacon Act.

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C16.06 - Emergency/Accident Resolution

Field Staff should refer to Part D5.09 of this manual for procedures in the field.

After the accident, provide a completed Construction Zone Vehicle Accident Report (from field staff) and Damage Reimbursement Memo to the contact listed on the memo.

• If field staff is unable to obtain the accident exchange report from the responding officer, contact the Manager of Traffic Safety Engineering to obtain a copy.

If a member of the public claims vehicular or structure property damage after the fact (i.e. tire, windshield, cracked foundations, etc.). Direct them to the Insurance Coverage Office, which can be reached on their website or by phone at (877) 277-4185.

If project staff is contacted by the ICO: provide them with the contact information of the Prime Contractor for the applicable work zone. Construction has no involvement in payment and/or processing.

If there is an accident involving a state employee, follow appropriate procedure and complete the incident form(Link for Internal Use Only) from the intranet.

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C16.07 - Contractor Evaluations

In accordance with 29 Del.C. §6962(c)(12) and Regulation 2408, we are required to complete performance-based contractor evaluations on all large public works contracts at the intervals listed below. The results of those evaluations will produce an average rating for each Prime Contractor and be displayed in the table below in accordance with the regulation. Should a specific contractors performance reach a certain threshold, the Department will begin holding retainage on future contracts with that entity. For further information, and the current scoring, please visit: https://deldot.gov/Business/bids/PreQual/index.shtml

• Projects with an original contract time of 240 calendar days or less, a Performance Evaluation will be made no later than 60 calendar days after Substantial Completion or completion of the final (Primary) punch list work, whichever occurs first.
• Projects with an original contract time greater than 240 calendar days and less than 365 calendar days, a Performance Evaluation will made at approximately 50% completion. An additional Performance Evaluation will be made no later than 60 days after Substantial Completion or completion of the final (Primary) punch list work, whichever occurs first.
• Projects with an original contract time longer than 365 calendar days, Performance Evaluations will be made every six months. An additional Performance Evaluation will be made no later than 60 days after Substantial Completion or completion of the final (Primary) punch list work, whichever occurs first.
• For all projects, Performance Evaluations will continue to occur every six months until the final estimate is paid.

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Section C17.00 - Claims Avoidance and Procedures

C17.01 - General

DelDOT defines a “Claim” as a written demand or assertion by the Contractor or the Department seeking, as a legal or equitable right: payment of money, Adjustment or interpretation of Contract terms, or other relief. This is also defined in Section 105.15.A.1 of the Standard Specifications.

In order to avoid a claim you must first be able to understand what the contractor is claiming, understand their motivation and position and be able to anticipate claims, and finally document the facts. Disputes between the contractor and the owner leading to a claim can be mitigated by having a solid understanding of the contract, having good sound construction management principals, having an understanding of DelDOT construction procedures, documenting the site conditions, having a good set of contract provisions, and finally having strategies used by the parties involved in the construction claim. Today’s Contractors compared to years past have become experts in understanding the contracts very well and sometimes better than the designer/owner who produce them.

DelDOT construction personnel are faced with the challenge of being Claim conscience. It’s a frame of mind where you have to be very mindful of any issue that can potentially, even as insignificant as it may be, work its way up through the process to become a major issue and lead to a claim. As projects become more complex the inspection staff must be aware that it increases the chances of claims and will need to be dealt with on the project.

DelDOT has a responsibility to ensure that a quality product is delivered on time and on budget. However, there are many challenges that are faced once the Contract Documents have been executed by DelDOT and the low bid Contractor constructs the project. When contracts are delayed for whatever reason, whether it’s due to the owner making changes or the Contractor not meeting the schedule demands, or simply delays outside of both the owner and Contractor’s control it creates immediate challenges to the project as to who is responsible for those delays. Sometimes it’s neither’s party fault and may be caused by outside influences such as weather, utilities, governmental agencies, etc. Documenting the issue(s) is very important and must be stressed to the field staff. With proper documentation it helps to tell the story of what happened and becomes the record should the claim go to arbitration. It can also help lead to claims avoidance if both parties can agree on who is responsible for the damages as a result of the changes. Documentation is one of your best allies in helping to avoid and mitigate claims.

Avoiding claims has many factors that the inspection staff must be aware of. Inspectors need to have a complete set of Contract Documents. Not just the set of Plans, Specifications, and Special Provisions but also all of the supplemental Contract Documents that are referenced in the bid documents. They should be available for reference so that the inspector understands the requirements that the contract.

By educating ourselves in the construction industry as well as how Contractors go about doing their business and their Subcontractors and suppliers helps to equip us better in understanding the problems they face. Identifying issues early and taking preventive steps through prompt resolution will help avoid claims.

The procedure for handling Contractor claims is detailed in Subsection 105.15 of the Standard Specifications. Contractor notification of claims should be strictly followed. It is the responsibility of the Contractor to notify the Department orally or in writing of their intention to make a claim before they begin the work, followed by a formal letter outlining the basis of their claim. This allows the Department to keep strict account of the actual costs incurred by the Contractor as a result of the alleged change or alleged misinterpretation of the Contract Documents. It is the responsibility of the Area Engineer to respond to a Contractor’s notice of intent to claim within the time requirements that are outlined in Subsection 105.15 of the Standard Specifications. The Inspector should check whether the claims procedure has been modified by the Project’s Bid Proposal.

Accurate, thorough, and complete inspector daily reports can make the difference between settling a claim for additional compensation and being forced to expend time, money, and effort litigating the claim. Moreover, because of the rules of evidence, inadequate daily report information may result in denial by the courts of otherwise valid claims, unfavorable decision in the claims process. It is extremely important that accurate and complete records be maintained for the item of work that the contractor is claiming. The gathering of facts will help determine the factors that influenced the performance of the contractor. Plans, revisions, specification, source documents, change orders, schedules and updates, RFI’s, correspondence, shop drawings, meeting minutes, photos, inspector reports, videos, e-mails, correspondence, lab records, erosion and sediment reports, and any other project record can be very useful to support the facts. It’s important that the Project Resident maintain accurate records to help in the claims analysis.

• The importance of keeping good daily records comes from the State of North Carolina, where, several years ago, a contractor learned this fact the hard way. This example discusses the impact of the contractor’s daily records on its claim; however, the principles discussed apply to all daily records kept by the Department as well.
  • On April 1, 1965, Contractor X was awarded a contract by the North Carolina Department of Transportation (NCDOT) to construct a portion of I-95. The contract included an estimated quantity of 12,000 cu yd for undercut excavation, for which X bid $0.50 per cu yd. By the time the project was completed, six months behind schedule, X has removed 259,729 cu yd of undercut excavation. This amounted to more than a 2000 percent overrun of the entire original contract quantity. X submitted a claim under the Alteration of Plans or Character of Work clause to recover the additional cost it incurred, over the unit price paid by the NCDOT, to remove the substantial overrun of undercut excavation.
  • The court was asked to decide two issues: whether the overrun constituted a changed condition entitling X to equitable adjustment in the contract unit price for undercut excavation; and whether entries and reports that were offered to substantiate X’s claim for additional compensation were properly admitted in evidence.
  • X won the battle, but lost the war. The battle was won when the North Carolina Court of Appeals ruled that the contract permitted an equitable adjustment in contract unit price for materially different, “changed” conditions, noting that the broad purpose of changed condition clauses is to encourage low, competent bids. Ignoring that policy would open the door to disastrous consequences for the state.

The court quoted from an article:

• Drafters of contract forms foresaw greater economy to the government if contractors could be encouraged to bid upon normal conditions, with the assurance that they would be reimbursed in case of abnormal conditions actually encountered and to the extent that they actually increase costs. Anderson, Changes, Changed Conditions and Extra in Government Contracting, 42 III. L. Rev. 29, 47 (1947). X lost the war, however, when the court refused to award X the damages it requested because it found that the daily reports had been improperly admitted in evidence. The damages report was divided into three parts: Part A was a claim for rental of extra equipment ($94,310.14); Part B was for labor ($23,343.67); and Part C was a claim for expenses incurred during the six month period of overrun. The compilation of damages was based on an analysis of daily reports prepared by X’s superintendent. The court viewed these reports as incomplete, as there was no indication of equipment actually in operation or broken down, the hours of operation were not set out, and there was no way to tell what equipment was in operation.
• The court noted that the daily reports should be so complete and in such detail as to indicate that they are reliable and accurate. The requirements of reliability and accuracy were not met by a summary of incomplete daily reports prepared for use in litigation rather than for the routine operation of business. To report that 36 machines are on a job site on a given day is unsatisfactory.

Most state road and bridge specifications require detailed supporting documentation in the nature of force account records.

The North Carolina provision, quoted by the court, provided as follows:

• In the event that the Commission and the Contractor are unable to reach an agreement concerning the alleged changed conditions, the Contractor will be required to keep an accurate and detailed cost record which will indicate not only the cost of the work done under the alleged changed conditions, but the cost of any remaining unaffected quantity of any bid item which has had some changed conditions, and failure to keep such a record shall be a bar to any recovery by reason of such alleged changed conditions. Such cost records will be kept with the same particularity as force account records and the Commission shall be given the same opportunity to supervise and check the keeping of such records as is done in force account work.

In light of this ruling, Contractors should seek to improve their daily report forms and educate their field superintendents and foremen on the necessity of completing the form.

Daily report forms should include the following information:

1. Project and date
2. Weather
3. Equipment on project, operator, hours in operation, down time, activity and location while working.
4. Other personnel on project, hours of work, location of work
5. Subcontractors on project, hours of work, location of work
6. Verbal directions from the department
7. Unusual site conditions
8. Delays, disruptions and out-of-sequence work
9. Daily production (anticipated and actual)

Whether the Contractor or the Inspector, or both, is keeping daily records, it is essential to keep a detailed account of each day’s activities, including items one through nine above. On Federal Aid projects it is important for the Area Engineer to understand the FHWA regulations for project claims. FHWA participation on contract claims is not automatic and the Project Resident should involve the FHWA Division as early as possible.

For more information on these guidelines visit: https://www.fhwa.dot.gov/construction/cqit/claims.cfm

For a better understanding of claims please view the documents listed below on “Managing DelDOT Highway Construction Claims: Analysis and Avoidance” provided by Trauner Consulting Services, Inc.

TRAUNER Claims Training for DelDOT Participant Workbook

TRAUNER Presentation Appendix A Glossary

TRAUNER Appendix B Cover Sheet - TRAUNER Appendix B

TRAUNER Appendix C Cover Sheet - TRAUNER Appendix C

TRAUNER Appendix D Cover Sheet - TRAUNER Appendix D

TRAUNER Appendix E Cover Sheet - TRAUNER Appendix E

TRAUNER Appendix F Cover Sheet - TRAUNER Appendix F

TRAUNER Appendix G Cover Sheet

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Section C18.00 - Acceptance Inspections

Upon a Contractor achieving Substantial Completion on a project, the Contractor should request that time charges be stopped, and acceptance inspections be scheduled. Even if the Contractor does not issue a formal request that time charges be stopped, the Area Engineer should affirm, in writing, if and when time charges are stopped.

Acceptance Inspections should be scheduled and held in accordance with the current Inspection Framework. As noted under Section 105.16 the Contractor is responsible to address any issues noted in the inspection, which is defined as a punch-list. The project team should be aware of the specific timelines identified in the framework and Specifications. They should also be aware of Section 105.16.B.5 which states that failure to complete the punch list in a timely fashion will incur liquidated damages at a reduced rate.

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Section C19.00 - Semi Final and Final Estimate

Any predecessor estimates are considered interim progress payment estimates. The Semi-Final and Final Estimates have slightly different procedures as identified below.

C19.01 - Semi-Final Estimate

The penultimate progress estimate should be prepared for submission when all work is complete, including primary punch list items. It should be based on the actual pay quantities as measured in the field. This semi-final estimate should be submitted using all final calculations and necessary supporting records for quantities, as if it was a final estimate, but the retainage should be withheld. The reason for this submission is to give the District Estimating Section sufficient opportunity to audit and make any necessary corrections before processing the Final Estimate.

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C19.02 - Final Estimates

Final estimates are similar in composition to the progress estimates. The difference is that the final estimate is the last or “clean up” estimate for the contract. It is prepared for payment when the Contractor has achieved Completion of the Project. These estimates will be marked “Final” on the record.

When the final estimate is complete and ready for submission it should be reviewed jointly by the Area Engineer and the Contractor (if the Contractor so desires). This review by both interested parties promotes accuracy of payment for the work performed, and it permits the discussion of possible unintentional omissions.

In addition to being prepared similarly to a progress estimate, the final estimate should be accompanied by other records such as the General Contractor Release, Subcontractor Releases, and bond releases. These documents should have been submitted by the Contractor, via the Unifier Submittals BP, prior to approving the final estimate.

The Final Estimate differs from a progress estimate, in that its approval process includes the Chief of Construction & Materials. Upon approval of the Final Estimate, the Estimator enters the amount into FACTS to generate payment. Additionally, approval of the Final Estimate automatically creates a record in the Project Closeout BP for the Area Engineer to complete, and the Estimator to approve. This Business Process automatically notifies Finance and Audit that the project is complete so that they may begin their post-construction work.

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Section C20.00 - Contract Acceptance

C20.01 - General

The letter of acceptance that is prepared by the Group Engineer for the signature of the Director of Maintenance and Operations is the official document whereby the State accepts the completed Project from the Contractor. The Area Engineer prepares a project acceptance memo for the M&O District Engineer. Both the memo and letter are forwarded to the M&O District Engineer and Director for review and signature. Please note that the Contractor, prior to Final Acceptance, must submit the necessary documents as noted in the Primary Punch List letter. This acceptance relieves the Contractor of any further construction and maintenance responsibilities. However, the Contract is not closed until the C18.02 - Final Estimate has been signed by the Chief of Construction & Materials and processed.

The contract acceptance date is specified in the acceptance letter. The acceptance date represents the date when all work is satisfactorily complete and the Contractor has moved off the Project site. The acceptance letter will contain a statement defining the last chargeable day of work for the Contract, and this should be used as the basis for assessing liquidated damages if applicable. Copies of this letter are distributed to all persons having connection with the Project.

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C20.02 - Partial Acceptance

Under the terms of the contract, the Director may, at his or her discretion, accept the contract in part. This will usually be considered only if there is a distinct advantage to the State to do so Standard Specifications. An example of this would be if a road or length of road on a contract is entirely complete and can be opened to traffic. Sometimes it is advantageous to the State to accept a contract from curb to curb only in order to open the road to traffic. If a contract is entirely complete except for seeding, which was performed out of season, the State may consider accepting the entire contract with the exception of the seeding and related items.

If a decision is made regarding partial acceptance, it will only be made following a Primary or partial Primary Inspection held in the usual manner. A partial acceptance letter will be written by procedure similar to that for complete acceptance. The partial acceptance letter will always be followed by a final letter of acceptance when the work has been satisfactorily completed.

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Section C21.00 - Emergency Contract Administration

C21.01 - General

An emergency contract is an authorization to perform work by direction of the Chief Engineer’s order to obtain a no-bid contract. It approves the use of special authority to set aside normal contracting procedures so the Department can quickly initiate and complete emergency work sooner than can be done under normal processes. An emergency can be defined as a sudden unexpected occurrence that poses clear and imminent danger, requiring immediate action to prevent or mitigate the loss of life, health, property, or essential public services. The Department should obtain an emergency declaration from the Governor’s office to proceed with the work. Construction and Design teams should meet ASAP to develop design solutions.

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C21.02 - Contractor Selection

The Chief Engineer, or approved designee, should be responsible for selecting, contacting and notifying the Contractor for use on emergency contracts.

When selecting a Contractor for an emergency contract, the following factors should be considered:

• Availability of resources
• Mobilization response time
• Proven management abilities
• Current contractor’s license
• A Contractor’s technical abilities

As soon as a Contractor is selected, it is important that they are involved with the design solution as early as possible in order to provide constructability and design solutions for the emergency contract work. When resource conflicts occur between ongoing and emergency work, and the selected Contractor is best for the emergency contract, the Group Engineer will determine the best course of action.

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C21.03 - Tracking Costs

At the initial meeting with the selected Contractor, the Area Engineer and the Project Resident should discuss the scope of work, the proposed types of equipment and personnel, expectations for performance, safety issues and the traffic management plan.

Emergency contracts will be tracked on a force account basis for labor, materials and equipment as found in Section 109.04.D. Project Residents and other project staff must include complete and accurate records in the daily reports and reach agreement with the Contractor for their work at the end of each shift. Daily cost estimates can be significant, so weekly or bi-weekly estimate payments should be given to the District Estimator to ensure that adequate funding is in place.

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C21.04 - Prosecution of Work

The Area Engineer and the Project Resident must define the work to be done but only provide general direction for accomplishing the work. Generally, the Contractor must select the means and methods to be used and should be discussed at the initial meeting. As work progresses, work plans will probably need adjusting. If you believe the emergency work is not progressing as quickly as it should, seek supervisory advice, and discuss with the Contractor ways to increase production.

The following are examples of project management techniques to increase production:

• Concurrent operations
• Multiple shifts
• Local material sites
• Detours to limit the impact of and on traffic
• Equipment and resources most appropriate for the changing circumstances of the work to be performed
• Alternate design solutions
• Alternate construction methods
• Identify and order materials with long lead times
• Develop and utilize a CPM Schedule
• Establish a chain of command
• Manage and control the job site
• Although cost effectiveness is always desirable, in some emergency situations production must predominate, sometimes requiring excess equipment to sit idle to gain overall production
• Ensure that the means and methods the Contractor proposes are safe and appropriate
• Develop an atmosphere of collaboration and cooperation
• Develop an emergency contact list with office/cell phone numbers and e-mails for all sections of the Department. Keep all members notified of the progress of the work
• Provide daily progress reports to the Cabinet Secretary and the Chief Engineer as directed by the Group Engineer

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C21.05 - Support Sections

To ensure that the Department always adheres to environmental mitigation, compliance requirements, and commitments, always coordinate with the Department’s Environmental section.

Continuously try to prevent improper storm water runoff, although some operations may have unavoidable sediment runoff. Stormwater Management’s involvement at the beginning of the emergency project is advisable since they will likely need to coordinate with regulatory agencies outside of the Department (DNREC, EPA, ACOE, etc.).

Communicating accurate project information to the Department’s Public Relations Section is a crucial role of the Area Engineer and the Project Resident. Avoid speaking to the media directly, unless you have prior supervisor approval, all communications should be provided by B1.03 Community Relations to outside agencies, legislators, media outlets and the community.

To ensure that American with Disabilities Act compliance requirements and commitments are adhered to always coordinate with the Department's ADA Compliance Office of Civil Rights section.

FHWA Emergency Contract Administration:

• The Federal Emergency Relief (ER) program administered by the Federal Highway Administration (FHWA) is intended to supplement the commitment of resources by States, counties, and cities (or other Federal agencies when appropriate) to help pay for unusually heavy expenses resulting from extraordinary conditions.
  • The program information is maintained at https://www.fhwa.dot.gov/programadmin/erelief.cfm.
• These links contain several helpful documents that explain the program and how it is administered:
  • FHWA Emergency Relief Manual - The manual covers procedures applicable to the FHWA’s ER program for Federal-aid highways. It is a guide for FHWA, State, and local transportation agency personnel for requesting, obtaining and administering ER funds. This is the primary resource used by FHWA for the ER program.
  • A Guide to the Federal-aid Highway Emergency Relief Program - While no longer current, this document provides an overview of the emergency relief program in layman's terms.

It should be noted that the Federal Emergency Management Agency (FEMA) has slightly different guidelines for participation than FHWA.

The two basic types of repair work eligible for Federal Participation are Emergency and Permanent Repairs described below.

Emergency Repair Work 23 CFR 668.109(b)(4)

• Minimize extent of damage
• Protect remaining facilities
• Restore essential traffic
• 270 day limit/100% reimbursable (23 U.S.C. 120(e))
• Timely “prompt” repair
• Expedited contracting
• All Federal-aid requirements apply*

Permanent Repairs (23 CFR 668.109(b)(1))

• Restoring Highway to Pre-Disaster Condition
• Requires Prior FHWA Approval and Authorization
• Pro-rata share 80/20 or 90/10
• Normal FHWA procedures are required
• All Federal-aid requirements apply*

Refer to Contract Requirements, found in Chapter V, Section M-4 of the FHWA Emergency Relief Manual

• Contracts for both Permanent Repair Work and Emergency Repairs must incorporate all applicable Federal Requirements.
• In the event of a Declared Emergency Relief Event, DelDOT staff will be working closely with FHWA.

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Section C22.00 - Salvage Material

C22.01 - General

The Contract Documents may contain project specific notes on materials to be salvaged. Additionally, the Standard Specifications note salvage in the following locations:

• Section 104.9 discusses the rights in use of materials found in work;
• Section 202.3 notes the salvage of borrow, topsoil, and pipe encountered during excavation;
• Section 619.2 notes the salvage of stone and brick;
• Section 727.3.12 notes the salvage of fence;
• Section 840.3.B notes the salvage of down guys; and
• Section 908.2.B.1 notes the placement of salvaged topsoil.

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