1-1 Section 100 GENERAL PROVISIONS SECTION 101 - DEFINITIONS AND TERMS Wherever in these specifications or in other contract documents the following terms or pronouns in place of them are used, the intent and meaning shall be interpreted as follows: 101-01 ABBREVIATIONS. Wherever the following abbreviations are used in these specifications or on the plans, they are to be construed the same as the respective expressions represented. Some of these abbreviations may be acronyms and may appear without periods. A.A.N. ) American Association of Nurserymen A.A.R. ) Association of American Railroads A.A.S.H.T.O. ) American Association of State Highway and Transportation Officials A.G.C. ) Associated General Contractors of America A.I.A. ) American Institute of Architects A.I.S.I. ) American Iron and Steel Institute A.N.S.I. ) American National Standards Institute, Inc. A.O.A.C. ) Association of Official Agricultural Chemists A.R.A. ) American Railway Association A.R.E.A. ) American Railway Engineering Association A.R.T.B.A. ) American Road and Transportation Builders Association A.S.C.E. ) American Society of Civil Engineers A.S.L.A. ) American Society of Landscape Architects A.S.M.E. ) American Society of Mechanical Engineers A.S.T.M. ) American Society for Testing and Materials A.W.P.A. ) American Wood-Preservers Association A.W.W.A. ) American Water Works Association A.W.S. ) American Welding Society D.C.E.C. ) Deputy Chief Engineer for Construction D.C.E.D. ) Deputy Chief Engineer for Facilities Design D.C.E.S. ) Deputy Chief Engineer for Structures Design and Construction D.C.E.T.S. ) Deputy Chief Engineer for Technical Services E.E.I. ) Electrical Engineering Institute E.I.C. ) Engineer-In-Charge F.H.W.A. ) The Federal Highway Administration F.S.S. ) Federal Specifications and Standards, General Services Administration M.U.T.C.D. ) Manual of Uniform Traffic Control Devices N.E.M.A. ) National Electrical Manufacturers Association P.C.C.M. ) New York State Prestressed Concrete Construction Manual S.A.E. ) Society of Automotive Engineers S.C.M. ) New York State Steel Construction Manual S.P.N. ) Standardized Plant Names adopted by The American Joint Committee on Horticultural Nomenclature S.S.P.C. ) Steel Structures Painting Council
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Section 100
GENERAL PROVISIONSSECTION 101 - DEFINITIONS AND TERMS
Wherever in these specifications or in other contract documents the following terms or pronouns inplace of them are used, the intent and meaning shall be interpreted as follows:
101-01 ABBREVIATIONS. Wherever the following abbreviations are used in these specifications oron the plans, they are to be construed the same as the respective expressions represented. Some of theseabbreviations may be acronyms and may appear without periods.
A.A.N. ) American Association of NurserymenA.A.R. ) Association of American Railroads
A.A.S.H.T.O. ) American Association of State Highway and Transportation OfficialsA.G.C. ) Associated General Contractors of AmericaA.I.A. ) American Institute of Architects
A.I.S.I. ) American Iron and Steel InstituteA.N.S.I. ) American National Standards Institute, Inc.
A.O.A.C. ) Association of Official Agricultural Chemists A.R.A. ) American Railway Association
A.R.E.A. ) American Railway Engineering AssociationA.R.T.B.A. ) American Road and Transportation Builders Association
A.S.C.E. ) American Society of Civil EngineersA.S.L.A. ) American Society of Landscape ArchitectsA.S.M.E. ) American Society of Mechanical EngineersA.S.T.M. ) American Society for Testing and Materials
A.W.P.A. ) American Wood-Preservers Association A.W.W.A. ) American Water Works Association
A.W.S. ) American Welding SocietyD.C.E.C. ) Deputy Chief Engineer for ConstructionD.C.E.D. ) Deputy Chief Engineer for Facilities DesignD.C.E.S. ) Deputy Chief Engineer for Structures Design and Construction
D.C.E.T.S. ) Deputy Chief Engineer for Technical ServicesE.E.I. ) Electrical Engineering InstituteE.I.C. ) Engineer-In-Charge
F.H.W.A. ) The Federal Highway Administration F.S.S. ) Federal Specifications and Standards, General Services Administration
M.U.T.C.D. ) Manual of Uniform Traffic Control DevicesN.E.M.A. ) National Electrical Manufacturers AssociationP.C.C.M. ) New York State Prestressed Concrete Construction Manual
S.A.E. ) Society of Automotive EngineersS.C.M. ) New York State Steel Construction ManualS.P.N. ) Standardized Plant Names adopted by The American Joint Committee on
Horticultural NomenclatureS.S.P.C. ) Steel Structures Painting Council
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101-02.1 ADDENDA. Supplemental additions, deletions, and modifications to the provisions of theStandard Specifications which are in effect on the date of advertisement for receipt of bids.
101-02.2 AMENDMENT. A formal alteration by addition, deletion or modification of a proposedcontract, issued subsequent to the initiation of the sale of proposals and prior to the opening of bids.
101-02.2.1 APPROVED LIST. List of materials, equipment, manufacturers or suppliers approved bythe Materials Bureau under a particular specification. The Approved Lists are published periodically andare available from the Materials Bureau.
101-02.3 AWARD. The decision of the department to accept the proposal of the lowest responsiblebidder for the work, subject to the execution and approval of a satisfactory contract therefor and bond tosecure the performance thereof, and to such other conditions as may be specified or otherwise requiredby law.
101-03 BID DEPOSIT. The security furnished by the bidder with their proposal for a project, asguaranty they will enter into a contract for the work if their proposal is accepted.
101-04 BIDDER. An individual, firm or corporation formally submitting a proposal for the work con-templated acting directly or through a duly authorized representative.
101-05 BRIDGE. The term “bridge” shall apply to any structure whether single or multiple spanconstruction with a clear span in excess of 20 feet (6096 mm) when measurement is made horizontallyalong the center line of roadway from face to face of abutments or sidewalls immediately below thecopings or fillets; or, if there are no copings or fillets, at six inches (152 mm) below the bridge seats orimmediately under the top slab, in the case of frame structures. In the case of arches, the span shall bemeasured from spring line to spring line. All measurements shall include the widths of intervening piersor division walls, as well as the width of copings or fillets.
101-06 CALENDAR DAY. Every day shown on the calendar.
107-07 CHIEF ENGINEER. The Assistant Commissioner for Engineering and Chief Engineer of theNew York State Department of Transportation.
101-08 COMMISSIONER. The New York State Commissioner of the Department of Transportation.
101-09 COMPTROLLER. The head of the Office of the State Comptroller.
101-10 CONTRACT AGREEMENT. The agreement covering the performance of the work andfurnishing of labor and materials in the construction of the work in conformance with the requirementsof the contract documents.
101-11 CONTRACT BOND. The approved form of security, executed by the Contractor and its Suretyor Sureties, guaranteeing complete execution of the contract and all supplemental agreements pertainingthereto and the payment of all legal debts pertaining to the construction of the project.
101-12 CONTRACT DOCUMENTS. The contract documents shall include the advertisement forproposals, the Contractor’s proposal; the agreement; Standard Specifications; the plans; any addendaand/or amendments to specifications and all provisions required by law to be inserted in the contractwhether actually inserted or not.
Whenever separate publications and the NYSDOT Standard Specifications are referenced, in theContract Documents, it is understood to mean the publication and specifications, as amended, which arecurrent on the date of advertisement for bids.
101-13 CONTRACT ITEM (PAY ITEM). A specifically described unit of work for which a price isprovided in the contract.
§101-14
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101-14 CONTRACTOR. The individual, firm, or corporation undertaking the execution of the workunder the terms of the contract and acting directly or through his, her, their, or its agents or employees.
101-15 CULVERT. The term “culvert” shall apply to any structure whether of single or multiple spanconstruction with an interior width of 20 feet (6096 mm) or less when measurement is made horizontallyalong the center line of roadway from face to face of abutments or sidewalls immediately below thecopings or fillets- or, if there are no copings or fillets, at points six inches (152 mm) below the bridge seatsor immediately under the top slab in the case of frame structures.
In the case of arches, the span shall be measured from spring line to spring line. All measurementsshall include the widths of intervening piers or division walls, as well as the widths of copings or fillets.
101-16 DEPARTMENT. The New York State Department of Transportation.
101-17 DEPARTMENTAL GEOTECHNICAL ENGINEER. The Regional Geotechnical Engineer orhis/her authorized representative, or a Geotechnical Engineer of the Geotechnical Engineering Bureauacting at the request of the Regional Geotechnical Engineer.
101-18 DEPARTMENTAL ENGINEERING GEOLOGIST. An Engineering Geologist of theGeotechnical Engineering Bureau authorized by the Director of Geotechnical Engineering Bureau toperform the duties required under these specifications.
101-19 DIVISION. Any of the five divisions of the Office of Engineering of the New York StateDepartment of Transportation.
101-20 EMPLOYEE. Any person working on the project mentioned in the contract of which thesespecifications are a part, and who is under the direction or control, or receives compensation from theContractor or Subcontractor.
101-21 ENGINEER OR ENGINEER-IN-CHARGE. The Engineer representing the Department ofTransportation having direct supervision of the execution of the contract under the direction of the RegionalDirector.
101-22 EQUIPMENT. All machinery and equipment, together with the necessary supplies for upkeepand maintenance, and also tools and apparatus necessary for the proper construction and acceptablecompletion of the work.
101-22.1 EROSION CONTROL. Erosion control is any action taken or item used as part of a projector as a separate action to minimize the destructive effects of wind and water on surface soil. The use andplacement of berms and dams, fiber mats, grasses, sod, mulches, slope drains, sediment basins anddrainage systems may be temporary and used throughout construction, or permanent and installed for theanticipated life of the facility.
101-23 EXECUTIVE DEPUTY COMMISSIONER. The Executive Deputy Commissioner of the NewYork State Department of Transportation.
101-24 EXTRA WORK. An item of work not provided for in the contract as awarded but found essentialto the satisfactory completion of the contract within its intended scope.
101-25 FEDERAL-AID. Joint cooperative construction or reconstruction of State highways and bridgesor grade crossing elimination work with monies contributed to the State by the Federal Government underTitle 23, United States Code, Highways, and amendments thereto.108
101-26 FEDERAL PROJECT. An identification applied to federally aided work for the purpose of therecords of the FHWA.
101-27 FINAL AGREEMENT. Agreement between the State of New York, Department ofTransportation and the Contractor, stating the net increase or decrease of the cost of work completed fromthe total cost of work authorized under the contract.
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The Final Agreement includes the Final Estimate as an attachment.
101-28 FINAL ESTIMATE. A listing of the final amount and cost of each contract item, the total costof the contract work as authorized by the last Order on Contract, the total cost of the work completed bythe Contractor, and any deductions from the amount to be paid to the Contractor.
101-28.1 GEOTECHNICAL ENGINEERING BUREAU. The Department’s Geotechnical EngineeringBureau has the responsibility for providing all Geotechnical Engineering Services including laboratorytesting of earthwork materials.
101-29 HIGHWAY. The whole strip of land bounded by the right-of-way lines.
101-30 INSPECTOR. The Department of Transportation representative detailed to inspect methods andmaterials relating to work both on and off the site of the contract.
101-31 LANDSCAPE DEVELOPMENT. Landscape development is any development or item used aspart of a project or as a separate action through the use, placement and management of land and elementsfor aesthetic enhancement, such as decorative surfaces and wall faces, benches, waste receptacles,tables, etc., and plant materials consistent with a specific landscape architectural design plan.
101-31.1 LANDSCAPING. Landscaping is the use and placement of plant materials (trees, shrubs,vines and certain ground covers) consistent with a landscape architectural design plan. Planting vegetationfor screening and erosion control purposes does not constitute landscaping.
101-32 LAYING LENGTH OF PIPE. Meters (laying length) of pipe shall be measured by multiplyingthe number of whole units by the nominal length of each unit and adding thereto the length of any fractionalunits incorporated in the work. The nominal length of a unit or fractional unit shall be the inside measuredlength from butt end to butt end and exclusive of the bell or groove on the female end.
101-33 MATERIAL. Any approved material acceptable to the Commissioner and conforming to therequirements of the specifications.
101-34 MATERIALS BUREAU. The Department’s Materials Bureau has a responsibility in the qualityassurance program for materials to be used on the contract and maintains a testing facility in Albany, NewYork.
101-34.1 MATERIALS DETAILS. That information, unique to a particular product, that is necessaryto adequately identify it or to describe the proper handling, installation, or use of that product.
101-35 MURK MANUAL FOR UNIFORM RECORD KEEPING. Manual setting up uniform projectrecord procedures to be followed by the Engineer in Charge.
101-36 ORDER ON CONTRACT. Written order issued by the Commissioner covering contingencies,extra work, deductions, increases or decreases and additions, alterations or omissions to the plans orspecifications.
101-36.1 OFFICE OF ENGINEERING. The Office of Engineering, consisting of five divisions, asfollows: Facilities Design, Construction, Structures Design and Construction, Technical Services, andReal Estate Division, of the New York State Department of Transportation.
101-37 PARTIAL OR MONTHLY ESTIMATES. Payments to the Contractor for work satisfactorilyperformed, made on percentage basis prescribed by subdivision 7, section 38 of the Highway Law.
101-37.1 PAYMENT LIMIT. A payment limit defines the boundary beyond which no quantities will bemeasured for payment. Whenever payment limits are indicated, only the work which is actually directedand completed within these limits will be measured and computed for payment. Payment limits may berevised in writing by the Engineer prior to performing the work.
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101-37.2 PAYMENT LINE. Defines the exact line from which the work quantity will be computed.Whenever payment lines are indicated, quantities representing work completed will be computed fromthese lines only. No other lines or locations will be used to compute quantities. Payment lines may berevised in writing by the Engineer prior to performing the work.
101-38 PLANS. The official contract drawings and applicable standard sheets, which show the location,character, dimensions and details of the work to performed.
101-39 PROJECT. The construction work to be performed under one or more construction contractsto complete an undertaking.
101-40 PROPOSAL. The offer of the bidder for the work, when executed and submitted on theprescribed form.
101-41 PROPOSAL FORM . The approved form on which the Department requires formal bids to beprepared and submitted for the work.
101-42 REASONABLY CLOSE CONFORMITY. Reasonably close conformity means compliance withreasonable and customary manufacturing and construction tolerances where working tolerances are notspecified. Where working tolerances are specified, reasonably close conformity means compliance withsuch working tolerances. Without detracting from the complete and absolute discretion of the Engineerto insist upon such tolerances as establishing reasonably close conformity, the Engineer may acceptvariations beyond such tolerances as reasonably close conformity where they will not materially affectthe value or utility of the work and the interests of the State.
101-43 REGION. One of eleven geographical subdivisions of the State used to designate or identify thelocation of the proposed work.
101-44 REGIONAL DIRECTOR. The Director, acting through the Commissioner, who is delegated theauthority and responsibility to execute the total Department prescribed work plans for his/her respectiveregion.
101-45 RIGHT-OF-WAY OR R.O.W. A general term denoting land, property or interest therein,usually in a strip, acquired for or devoted to a highway.
101-46 ROADBED. The graded portions of a highway within top and side slopes, prepared as afoundation for the pavement structure and shoulders.
101-47 ROADWAY. The portion of a highway included between the outside edges of the shoulders.
101-48 ROAD SECTION. That portion of a highway included between the top of the slope in cut andthe bottom of slope in fill.
101-49 SHOULDER. The portion of the roadway contiguous with the traveled way for accommodationof stopped vehicles, for emergency use, and for lateral support of base and surface courses.
101-50 SITE. The specific area adjacent to and including the area upon which construction work is tobe performed. Generally such area may be considered as defined by the right-of-way or property madeavailable to the Contractor for construction operations.
101-51.1 SOIL MECHANICS BUREAU. See Geotechnical Engineering Bureau.
101-52 SPECIAL NOTES. Special directions, provisions, or requirements peculiar to the project underconsideration.
101-53 SPECIFICATIONS. The body of directions, requirements, etc., contained in this presentvolume, together with all documents of any description and agreements made (or to be made), pertaining
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to the methods (or manner) of performing the work or to the quantities and quality as shown by the testrecords of accepted materials to be furnished under a contract.
Within these specifications there are two formats for numbering. One is used for the SpecificationSections and Subsections portion and the other for Contract Pay Items.
A. Specifications Sections and Subsections use a format which always include a dash and occasionallya decimal (for example XXX-X.XX). This format never denotes a contract pay item.
B. Contract pay items use a format which includes one decimal point only. The basic format containsthree digits just to the left of the decimal point denoting the specification section or subsection to whichit relates and two digits to the right of the decimal point denoting the particular pay item within thespecification or subsection. (For example XXX.XX).
If a pay item appears in the format of three digits to the left and either four or six digits to the right ofthe decimal point, it is intended to be 1) a standard specification contained within this present volume; 2)an updated version contained in an Addendum or the proposal; or 3) a serialization of the basic five digitspecification which denotes different sizes, types, and/or specific identification of an each or lump sumitem. (For example XXX.XXXX or XXX.XXXXXX).
Occasionally there are two additional digits to the left of the decimal point. These are used as a codeto indicate the origin of a special specification (For example XXXXX.XX or XXXXX.XXXX or XXXXX.XXXXXX). In all these cases the special specifications shall be contained in the proposal.
101-53.1 STANDARD SHEETS. The standard drawings approved for repetitive use, showing detailsto be used where appropriate.
101-54 STATE. When used, means the State of New York, represented by the State Department ofTransportation through the Commissioner of Transportation.
101-55 STRUCTURES. Bridges, culverts, catch basins, drop inlets, retaining walls, cribbing,manholes, endwalls, buildings, sewers, service pipes, underdrains, foundation drains and other featureswhich may be encountered in the work and not otherwise classed herein.
101-56 SUBCONTRACTOR. Any individual, firm or corporation to whom the Contractor, with thewritten consent of the Department, sublets any part of the contract.
101-57 SURETY. The corporate body bound with and for the Contractor, for the full and completeperformance of the contract, and for the payment of all debts, pertaining to the work.
101-58 TEST. Methods adopted by the Commissioner to ascertain the quality, character andacceptability of materials and processes utilized in performing the contract.
101-59 METRIC TON. Metric ton of 1000 kilograms.
101-60 UTILITY. A public, privately or cooperatively owned agency or agencies operated by one ormore persons or corporations for public service.
101-61 WORK. Work shall be understood to mean the furnishing of all labor, materials, equipment, andother incidentals necessary or convenient to the successful completion of the project and the carrying outof all the duties and obligations imposed by the contract.
101-62 WORK DAY. A calendar day, exclusive of Sundays and State recognized legal holidays, onwhich weather and other conditions not under the control of the Contractor, will permit constructionoperations to proceed for the major part of the day on the principal item or items of work which wouldnormally be in progress at that time.
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SECTION 102 - BIDDING REQUIREMENTS AND CONDITIONS
102-01 LOCATION OF REGIONAL OFFICES. Persons desiring to make a proposal shall use theproposal blank prepared by the Department for each individual contract. THE SPECIFICATIONSADOPTED JANUARY 2, 1995 (except as modified on the plans or in the itemized proposal) BY THENEW YORK STATE DEPARTMENT OF TRANSPORTATION ARE TO BE CONSIDERED AS ANDSHALL FORM A PART OF THE AGREEMENT. The time for which proposals will be received willbe found in the published notice calling for proposals. Any proposal received after the hour specified inthe published notice shall not be accepted. Detailed plans of the work, Standard Sheets and Proposals maybe examined at the office of the Department of Transportation, Business Administration Bureau,Administration and Engineering Building, State Campus 1220 Washington Avenue, Albany, New York12232 (Plan Sales Unit) 518-457-2124 and at the Office of the Regional Director in whose Region the workis located.
The Regional Offices and territories covered are located as follows:
RegionNumber Including Counties Address
1 AlbanyRensselaerWarren
EssexSaratogaWashington
GreeneSchenectady
84 Holland AvenueAlbany, N.Y. 12208
2 Fulton Hamilton Herkimer 207 Genesee Street
Madison Montgomery Oneida Utica, N.Y. 13501
3 Cayuga Cortland Onondaga 333 E. Washington St.
Oswego Seneca Tompkins Syracuse, N.Y. 13202
4 GeneseeOntarioWayne
Livingston Monroe 1530 Jefferson Road
Orleans Wyoming Rochester, N.Y. 14623
5 Cattaraugus Chautauqua Erie Gen. W. J. Donovan125 Main StreetBuffalo, N.Y. 14203Niagara
6 Allegany Chemung Schuyler OGS Hornell St. Office Bldg.107 Broadway StreetHornell, N.Y. 14843Steuben Tioga Yates
7 Clinton Franklin Jefferson 317 Washington Street
Lewis St.Lawrence
Watertown, N.Y. 13601
8 ColumbiaPutnamWestchester
Dutchess Orange 4 Burnett Boulevard
Rockland Ulster Poughkeepsie, N.Y. 12603
9 Broome Chenango Delaware 44 Hawley Street
Otsego Schoharie Sullivan Binghamton, N.Y. 13901
10 Nassau Suffolk New York State Office Bldg.Hauppauge, N.Y. 11788
RegionNumber Including Counties Address
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11 Bronx Kings New York 1 Hunters Point Plaza47-40 21st Street
Richmond Queens Long Island City, N.Y. 11101
102-02 PROPOSALS. Each proposal must be submitted on the official form which is furnished by theDepartment. All blank spaces in the proposal form must be filled in as noted, and no change shall bemade in the phraseology of the proposal or in the items mentioned therein.
Proposals that are illegible or that contain any omission, erasures, alterations, additions, or items notcalled for in the itemized proposal or that contain irregularities of any kind, may be rejected as informal.
The bidder shall sign, in the space provided in the proposal form, with its usual signature. An officerof a corporation or a member of a partnership signing for the bidder, shall place its signature and titleafter the word “By” under the name of the Contractor. The same procedure shall apply to the proposalof a joint venture by two or more bidders; however, if the signature is by an agent or attorney-in-fact forthe joint venturers, then the proposal shall be accompanied by four (4) authenticated copies of theevidence of its authority to act on behalf of all of the joint venturers.
The State is responsible for providing amendments only to those persons or firms listed in its PlanSales Ledger as having purchased plans and/or proposals from the Department of Transportation, andthose that made a specific request of the Department for amendments. Persons or firms that obtain plansand/or proposals from sources other than the State bear the sole responsibility for obtaining anyamendments issued by the State for the subject project.
102-03 PROPOSAL SHALL SPECIFY GROSS SUM. Each proposal shall specify the correct grosssum, in the manner hereafter described for which the work will be performed according to the plans andspecifications and any amendment to the specifications if the same are issued prior to the date of receiptof the proposal, together with a unit price for each of the separate items as called for. The lowest bidshall be determined by the Commissioner on the basis of the gross sum for which the entire work will beperformed, arrived at by a correct computation of all items specified in the proposal therefor at the unitprices stated in the proposal. The Commissioner of Transportation reserves the right to reject anyproposal in which any of the bid prices are significantly unbalanced to the potential detriment of theDepartment. An unbalanced bid is considered to be one containing lump sum or unit bid items which donot reflect reasonable actual costs plus a reasonable proportionate share of the bidder’s anticipated profit,overhead costs, and other indirect costs which are anticipated for the performance of the items inquestion.
Any proposal shall be deemed informal which does not contain prices set opposite each of the severalitems for which there is a quantity exhibited in the itemized proposal or which shall in any manner failto conform to the conditions of the published notice inviting proposals. The unit prices and gross sum bidshall be indicated in words and figures. In case the amount shown in words and its equivalent in figuresdo not agree the written words may, in the discretion of the Commissioner of Transportation, beconsidered binding.
The bidder’s attention is directed to the fact that it cannot exceed three (3) decimal positions in thecents column under unit bid price.
Some of the items may be designated as Fixed Price Items. When this is the case, the fixed pricesare published in the proposal. They have been prepared taking into account the cost of all labor,materials, and equipment necessary to complete the work including an allowance for overhead and profit.They can be identified in the Itemized Proposal by the words, “Fixed Price: See Specification and§102-03” appearing beneath the description of the item. In addition, the “Unit Bid Price” and “AmountBid” columns have preprinted entries in them. The bidder shall not change these entries. Should the
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amount shown be altered, the altered figures will be disregarded and the preprinted price and amount willbe used to determine the total amount bid for the contract.
Similarly, one or more items may be designated as MINIMUM PRICE ITEMS or MAXIMUMPRICE ITEMS. When this is the case, the minimum (or maximum) prices are published in the proposal.These items can also be identified in the Itemized Proposal by the words “Minimum Bid___” or“Maximum Bid___” appearing beneath the description of the item. The price bid for Minimum PriceItems shall not be less than the minimum price shown in the Itemized Proposal, but it may exceed thatprice. Conversely, the price bid for Maximum Price Items shall be less than, or equal to, the maximumprice shown in the Itemized Proposal. In the event a bid is less than the Minimum Price (or more thanthe Maximum Price) indicated in the Itemized Proposal, the Department will substitute the appropriateminimum (or maximum) price and make the necessary adjustments to determine the total amount bid.
102-04 NO MISUNDERSTANDING. The attention of persons intending to make proposals isspecifically called to “ARTICLE 3 of the AGREEMENT” wherein the bidder agrees that it has examinedthe contract documents and the site of the work and has fully informed itself from its personalexamination of the same regarding the quantities, character, location and other conditions affecting thework to be performed including the existence of poles, wires, pipes, ducts, conduits, and other facilitiesand structures of municipal and other public service corporations on, over or under the site, and that itwill make no claim against the State by reliance upon any estimates, tests or other representations madeby an officer or agent of the State with respect to the work to be performed under the contract. Particularattention is called to special notes and special specifications in the proposal which may contain contractrequirements at variance with standard plans and specifications.
The bidder’s attention is also directed to the fact that in addition to its need to examine the contractdocuments and the site of work, there may be certain supplemental information which is available forits inspection in the Department of Transportation Office having jurisdiction for this project, as identifiedin the advertisement for bids. The supplemental information could include, for example, earthwork crosssection sheets, various subsurface information, record plans, special reports and other pertinent projectdata. The proposal will include a list of the information available for inspection prior to the opening ofbids.
102-05 SUBSURFACE INFORMATION. Boring logs and other subsurface information madeavailable for the inspection of bidders were obtained with reasonable care and recorded in good faith bythe Department.
The soil and rock descriptions shown are as determined by a visual inspection of the samples fromthe various explorations unless otherwise noted. The observed water levels and/or water conditionsindicated thereon are as recorded at the time of the exploration. These levels and/or conditions may varyconsiderably, with time, according to the prevailing climate, rainfall and other factors.
The locations of utilities or other underground man-made features were ascertained with reasonablecare and recorded in good faith from various sources, including the records of municipal and other publicservice corporations, and therefore the location of known utilities may only be approximate.
Subsurface information is made available to bidders in good faith so that they may be aware of theinformation utilized by the State for design and estimating purposes. By doing so, the State and theContractor mutually agree and understand that the same is a voluntary act and not in compliance with anylegal or moral obligation on the part of the Department. Furthermore, insofar as such disclosure is made,the Department makes no representations or warranties, express or implied, as to the completeness oraccuracy of this information or data, nor is such disclosure intended as a substitute for personalinvestigations, interpretations, and judgment of the bidder.
102-06 MODIFICATION OR WITHDRAWAL OF PROPOSAL. Permission will not be given tomodify or explain by letter, telegram, telephone or otherwise, any proposal or bid after it has beendeposited with the Department. No proposal shall be withdrawn or cancelled before the time designated
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for opening such proposals publicly except upon such conditions as the Commissioner may deem to benecessary.
Specifically, no proposal shall be withdrawn or cancelled after the time designated for opening suchproposals publicly, except to exercise the option as provided herein.
Any bidder or its duly authorized agent who has submitted proposals on more than one project of anyone letting may, at its option and upon written request, withdraw any or all of its additional proposals afterthe person who opens and reads the bids has announced that such bidder has submitted the lowest proposalon a project for which bids have last been read. When this option is exercised, the proposals for otherprojects in the letting will be returned to the bidder unopened. No returned proposals will be consideredafter the bidder has exercised its privilege to withdraw the same. No proposals will be considered whichhave not been deposited with the Department prior to the time indicated in the advertisement. Any bidderexercising the privilege of so withdrawing its bid or bids waives all claims that may arise should it befound that its opened proposal is informal or for any other reason is unacceptable to the Department. TheDepartment will open and read proposals in the order in which they are drawn and not in the order inwhich the projects are advertised.
If the proposal is made by an individual the P.O. Address shall be given. If made by a corporation,the names and addresses of the president, secretary and treasurer shall be given. If made by apartnership, the names of the partners shall be given.
102-07 BID DEPOSIT. YOU MUST SUBMIT A BID SECURITY WITH YOUR BID. Everyproposal must be accompanied by a bid bond or a certified check or bank cashier’s check payable to theState of New York. If you elect to submit a bid bond, it MUST be on the Department's Bid Bond Form(CONR 391, a sample of which is included in §102-20) that already contains language representing 25%of the total bid. If you elect to submit a certified check or bank cashier's check, it must be in the amountspecified in the bid proposal. The retention and disposition of such bid bond or certified check or bankcashier’s check by the Department shall be pursuant to and in conformity with Subdivision No. 2 ofSection 38 of the Highway Law, as amended.
102-08 CONTRACT CLAUSES REQUIRED IN PUBLIC WORK. The execution of the contract bythe Contractor binds it to the following specific agreements required by law:
A. This contract may not be assigned by the Contractor or its right, title or interest therein assigned,transferred, conveyed, sublet or disposed of without the previous consent, in writing of the State.
B. This contract shall be deemed executory only to the extent of money available to the State for theperformance of the terms hereof and no liability on account thereof shall be incurred by the State ofNew York beyond moneys available for the purpose thereof.
C. The Contractor specifically agrees, as required by Labor Law, Sections 220 and 200-d, asamended, that:
(1) no laborer, workman or mechanic, in the employ of the Contractor, subcontractor or otherperson doing or contracting to do the whole or any part of the work contemplated by the contractshall be permitted or required to work more than eight hours in any one calendar day or morethan five days in any one week, except in the emergencies set forth in the Labor Law.
(2) the wages paid for a legal day’s work shall be not less than the prevailing rate of wages asdefined by law.
(3) the minimum hourly rate of wages to be paid shall not be less than that stated in the specifica-tions, and any redetermination of the prevailing rate of wages after the contract is approved shallbe deemed to be incorporated herein by reference as of the effective date of redetermination andshall form a part of these contract documents.
§102-08
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(4) The Labor Law provides that the contract may be forfeited and no sum paid for any workdone thereunder on a second conviction for willfully paying less than:
(a) the stipulated wage scale as provided in Labor Law, Section 220, subdivision 3, asamended, or(b) less than the stipulated minimum hourly wage scale as provided in Labor Law,Section220-d, as amended.
D. The Contractor specifically agrees, as required by the provisions of the Labor Law, Section 200-eas amended that:
(1) In hiring of employees for the performance of work under this contract or any subcontracthereunder, or for the manufacture, sale or distribution of materials, equipment or supplieshereunder no Contractor, subcontractor or any person acting on behalf of such Contractor orsubcontractor shall by reason of race, creed, color, sex or national origin discriminate againstany citizen of the State of New York who is qualified and available to perform the work to whichthe employment relates.
(2) No Contractor, subcontractor, nor any person on its behalf shall, in any manner, discriminateagainst or intimidate any employee hired for the performance of work under this contract onaccount of race, creed, color, sex or national origin.
(3) There may be deducted from the amount payable to the Contractor by the State under thiscontract a penalty of five dollars for each person for each calendar day during which such personwas discriminated against or intimidated in violation of the provisions of the contract, and
(4) this contract may be cancelled or terminated by the State or municipality and all moneys dueor to become due hereunder may be forfeited for a second or any subsequent violation of theterms or conditions of this section of the contract, and
(5) the aforesaid provisions of this section covering every contract for or on behalf of the Stateor municipality for the manufacture, sale or distribution of materials, equipment or supplies shallbe limited to operations performed within the territorial limits of the State of New York.
E. During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employmentbecause of race, creed, color, sex, national origin, age, disability or marital status.
(2) If directed to do so by the Commissioner of Human Rights, the Contractor will send to eachlabor union or representative of workers with which the Contractor has or is bound by a collectivebargaining or other agreement or understanding, a notice, to be provided by the StateCommissioner of Human Rights, advising such labor union or representative of the Contractor’sagreement under clauses (1) through (7) (hereinafter called “non-discrimination clauses”). If theContractor was directed to do so by the contracting agency as part of the bid or negotiation of thiscontract, the Contractor shall request such labor union or representative to furnish a writtenstatement that such labor union or representative will not discriminate because of race, creed,color, sex, national origin, age, disability or marital status, and that such labor union orrepresentative will cooperate, within the limits of its legal and contractual authority, in theimplementation of the policy and provisions of these non-discrimination clauses and that itconsents and agrees that recruitment, employment and the terms and conditions or employmentunder this contract shall be in accordance with the purposes and provisions of thesenon-discrimination clauses. If such labor union or representative fails or refuses to comply withsuch a request that it furnish such a statement, the Contractor shall promptly notify the StateCommissioner of Human Rights of such failure or refusal.
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(3) If directed to do so by the Commissioner of Human Rights, the Contractor will post and keepposted in conspicuous places, available to employees and applicants for employment, notices tobe provided by the State Commissioner of Human Rights setting forth the substance of theprovisions of clauses (I) and (2) and such provisions of the State’s laws against discrimination asthe State Commissioner of Human Rights shall determine.
(4) The Contractor will state, in all solicitations or advertisements for employees placed by oron behalf of the Contractor, that all qualified applicants will be afforded equal employmentopportunities without discrimination because of race, creed, color, sex, national origin, age,disability or marital status.
(5) The Contractor will comply with the provisions of Sections 290-299 of the Executive Law andwith the Civil Rights Law, will furnish all information and reports deemed necessary by the StateCommissioner of Human Rights under these non-discrimination clauses and such sections of theExecutive Law, and will permit access to the Contractor’s books, records and accounts by theState Commissioner for the purposes of investigation to ascertain compliance with these non-discrimination clauses and such sections of the Executive Law and Civil Rights Law.
(6) This contract may be forthwith cancelled, terminated or suspended, in whole or in part, bythe contracting agency upon the basis of a finding made by the State Commissioner of HumanRights that the Contractor has not complied with these non-discrimination clauses, and theContractor may be declared ineligible for future contracts made by or on behalf of the State ora public authority or agency of the State, until the Contractor satisfies the State Commissionerof Human Rights that the Contractor has established and is carrying out a program in conformitywith the provisions of these non-discrimination clauses. Such findings shall be made by the StateCommissioner of Human Rights after conciliation efforts by the Commissioner have failed toachieve compliance with these non- discrimination clauses and after a verified complaint hasbeen filed with the Commissioner, notice thereof has been given to the Contractor and anopportunity has been afforded the Contractor to be heard publicly in accordance with theExecutive Law. Such sanctions may be imposed and remedies invoked independently of or inaddition to sanctions and remedies otherwise provided by law.
(7) The Contractor will include the provisions of clauses (1) through (6) in every subcontract orpurchase order in such a manner that such provisions will be binding upon each subcontractor orvendor as to operations to be performed within the State of New York. The Contractor will takesuch action in enforcing such provisions of such subcontract or purchase order as the StateCommissioner of Human Rights or the contracting agency may direct, including sanctions orremedies for non- compliance. If the Contractor becomes involved in or is threatened withlitigation with the subcontractor or vendor as a result of such direction by the State Commissionerof Human Rights or the contracting agency, the Contractor shall promptly so notify the AttorneyGeneral, requesting the Attorney General to intervene and protect the interests of the State ofNew York.
F. By submission of this bid, each bidder and each person signing on behalf of any bidder certifiesand in the case of a joint bid each party thereto certifies as to its own organization, under penalty ofperjury, that to the best of its knowledge and belief:
(1) The prices in this bid have been arrived at independently without collusion, consultation, com-munication or agreement, for the purpose of restricting competition, as to any matter relating tosuch prices with any other bidder or with any competitor;
(2) Unless otherwise required by law, the prices which have been quoted in this bid have not beenknowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior toopening, directly or indirectly, to any other bidder or to any competitor;
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(3) No attempt has been made or will be made by the bidder to induce any other person,partnership or corporation to submit or not to submit a bid for the purpose of restrictingcompetition;
A bid shall not be considered for award nor shall any award be made where (1) (2) and (3) abovehave not been complied with provided, however, that if in any case the bidder cannot make theforegoing certification, the bidder shall so state and shall furnish with the bid a signed statementwhich sets forth in detail the reasons therefore. Where (1) (2) and (3) above have not been compliedwith, the bid shall not be considered for award nor shall any award be made unless the head of thepurchasing unit of the State, public department or agency to which the bid is made, or his/herdesignee, determined that such disclosure was not made for the purpose of restricting competition.
The fact that a bidder (a) has published price lists, rates, or tariffs covering items being procured,(b) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (c) has sold the same items to other customers at the same prices being bid,does not constitute, without more, a disclosure within the meaning of paragraph F.
G. The agreement shall be void and of no force and effect unless the Contractor shall providecoverage for the benefit of, and keep covered during the life of this agreement, such employees asare required to be covered by the provisions of the Worker’s Compensation Law.
H. In accordance with Section 220-f of the Labor Law and Section 139-h of the State Finance Lawand the regulations of the Comptroller of the State of New York promulgated thereunder, theContractor agrees, as a material condition of the contract:
(1) That neither the Contractor nor any substantially owned or affiliated person, firm, partnershipor corporation has participated, is participating, or shall participate in an international boycott inviolation of the provisions of the United States Export Administration Act of 1969, as amended,or the Export Administration Act of 1979, as amended, or the regulations of the United StatesDepartment of Commerce promulgated thereunder;
(2) That if the Contractor or any substantially owned or affiliated person, firm, partnership orcorporation has been convicted or subjected to a final determination by the United StatesDepartment of Commerce or any other appropriate agency of the United States of a violation ofthe United States Export Administration Act of 1969, as amended, or the Export AdministrationAct of 1979, as amended, or the regulations of the United States Department of Commercepromulgated thereunder, the contractor shall notify the Comptroller of such conviction ordetermination in the manner prescribed by the Comptroller’s regulations.
I. The relationship of the Contractor to the State is that of an independent Contractor, and said Con-tractor, in accordance with its status as such Contractor, covenants and agrees that it will conductitself consistent with such status, that it will neither hold itself out as nor claim to be an officer oremployee of the State by reason hereof, and that it will not, by reason hereof, make any claim,demand or application to or for any right or privilege applicable to an officer or employee of theState, including, but not limited to workers’ compensation coverage, unemployment insurancebenefits, social security coverage, or retirement membership or credit.
J. The Contractor hereby agrees to the provisions of 139-a and 139-b of the New York State FinanceLaw which require that upon the refusal of a person, when called before a grand jury, head of a Statedepartment, temporary State commission or other State agency, or the organized crime task forcein the Department of Law, which is empowered to compel the attendance of witnesses and examinethem under oath, to testify in an investigation, concerning any transaction or contract had with theState, any political subdivision thereof, a public authority or with any public department, agency orof official of the State or of any political subdivision thereof or of a public authority, to sign a waiver
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of immunity against subsequent criminal prosecution or to answer any relevant question concerningsuch transaction or contract,
(1) such person, and any firm, partnership or corporation of which he is a member, partner,director or officer shall be disqualified from thereafter selling to or submitting bids to orreceiving awards from or entering into any contracts with New York State of any publicdepartment, agency or official thereof, for goods, work or services, for a period of five yearsafter such refusal, and;
(2) any and all contracts made with the State of New York or any public department, agency orofficial thereof, since the effective date of this law, by such person, and by any firm, partnershipor corporation of which he is a member, partner, director or officer may be canceled orterminated by the State of New York without incurring any penalty or damages on account ofsuch cancellation or termination, but any moneys owning by the State of New York for goodsdelivered or work done prior to the cancellation or termination shall be paid.
102-09 OTHER CONTRACTS. The State reserves the right to let other contracts in connection withthis work. The Contractor’s attention is specifically directed to the fact that because of the work on othercontracts within and adjacent to the limits of this contract it may not have exclusive occupancy of theterritory within or adjacent to the limits of the contract.
The Contractor will be required to cooperate with other Contractors and the owners of the variousutilities and to coordinate and arrange the sequence of its work to conform with the progressive operationsof the work already under contract and to be put under contract. Cooperation and adjustments with theContractors already engaged and to be engaged upon the site is essential to properly coordinate theconstruction efforts of all Contractors, utility owners, and subcontractors engaged in the work within andadjacent to the construction area of this contract.
In the event that utility facility adjustments are to be made by utility owner’s forces in connection withand during the life of the contract, the Contractor will be required to cooperate with the owners of thevarious utilities and to coordinate and arrange the sequence of its work to conform with the progressiveoperations of the utility owner’s work underway or to be put underway.
In case of interference between the operations of the utility owners and different Contractors, theRegional Director will be the sole judge of the rights of each contractor and the sequence of worknecessary to expedite the completion of the entire project, and in all cases his/her decision shall beaccepted as final.
102-10 LABOR AND EMPLOYMENT. On those projects financed without Federal Aid, the provisionsof the New York State Labor Law, as amended, and heretofore referred to in 102-08, Contract ClausesRequired in Public Work, shall be applicable.
On all contracts, financed without Federal Aid each Contractor and/or subcontractor shall furnishthe Engineer, each week, its payroll records and statement of compliance with respect to the wages paideach of its employees, (including apprentices, trainees, watchpersons and guards) engaged on workduring the preceding weekly payroll period. Appropriate forms will be provided, by the Department, forthis purpose. At the Contractor’s option computer printed payroll records, which supply the required data,may be used.
On all contracts financed without federal aid, the Contractor shall post, in a location designated bythe Engineer, a copy of the New York State Department of Labor schedules of prevailing wages andsupplements for this project, a copy of all re-determinations of such schedules for the project, theWorkers’ Compensation Law Section 51 notice, all other notices required by law to be posted at the site,the Department of Labor notice that this project is a public work project on which each worker is entitledto receive the prevailing wages and supplements for the occupation at which he or she is working, andall other notices which the Engineer directs the Contractor to post. The Contractor shall provide asurface for such notices which is satisfactory to the Engineer. The Contractor shall maintain such noticesin a legible manner and shall replace any notice or schedule which is damaged, defaced, illegible or
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removed for any reason. The Contractor shall post such notices before commencing any work on the siteand shall maintain such notices until all work on the site is complete.
On all contracts financed without federal aid, the Contractor shall also distribute to each worker forthis contract a notice, in a form provided by the Engineer, that this project is a public work project onwhich each worker is entitled to receive the prevailing wage and supplements for the occupation at whichhe or she is working. Worker includes employees of the Contractor and all subcontractors. Such noticeshall be distributed to each worker before he or she starts performing any work on this contract. At thetime of distribution, the Contractor shall have each worker sign a statement, in a form provided by theEngineer, certifying that the worker has received the notice required by this section, which signedstatement shall be maintained with the payroll records required by this section.
In accordance with the authorization in §85 of the New York State Highway Law, on projectsfinanced with Federal Aid, any provisions of the above mentioned New York State Labor Law that arein conflict with the following enumerated mandatory Federal-aid construction contract compliancerequirements, as contained in Section 635.124 to the Code of Federal Regulations, Title23--HIGHWAYS, are superseded.
A. Convict Labor. No convict labor unless performed by convicts who are on parole, supervisedrelease, or probation, shall be employed in construction or used for maintenance or any other purposeat the site or within the limits of any Federal-aid highway construction project from the time of awardof the contract or the start of work on force account until final acceptance of the work by the StateHighway agency.
B. Selection of Labor. No procedures or requirement shall be imposed by any state which willoperate to discriminate against the employment of labor from any other state, possession or territoryof the United States, in the construction of a federal-aid project. The selection of labor to beemployed by the Contractor on any federal-aid project shall be of his/her own choosing.
C. Wage rates, Federal-aid Projects. The advertisement or call for bids on any contract for theconstruction of a project on the federal-aid system either shall include the minimum wage ratesdetermined therefore by the Secretary of Labor or shall provide that such rates are set out in theadvertisement, specifications, proposal, or other contract document, and shall further specify thatsuch rates are a part of the contract covering the project.
D. Construction by Federal Agencies. When construction work on federal-aid highways is beingperformed by any federal agency under its procedures and by federal contract, the labor standardsrelating to direct federal contracts shall be applicable.
E. Non-Discrimination. Employment shall be provided without regard to race, color, religion, sex,or national origin.
F. Convict Produced Materials.
a. Materials produced by convict labor may only be incorporated in a Federal-aid highwayconstruction project if such materials have been:
(1) Produced by convicts who are on parole, supervised release, or probation from a prisonor
(2) Produced in a qualified prison facility and the cumulative annual production amount ofsuch materials for use in Federal-aid highway construction does not exceed the amount ofsuch materials produced in such facility for use in Federal-aid highway construction duringthe 12-month period ending July 1, 1987.
b. “Qualified prison facility” means any prison facility in which convicts, during the 12-monthperiod ending July 1, 1987, produced materials for use in Federal-aid highway constructionprojects.
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c. Standard State and Federal-aid contract procedures may be used to assure compliance withthe requirements of this paragraph.
102-11 FORMS. The form of contract and bond, if given, shall be that provided by the StateDepartment of Transportation.
102-12 (VACANT)
102-13 SAMPLE FORM OF PROPOSAL TITLE SHEET
STATE OF NEW YORKDEPARTMENT OF TRANSPORTATION
OFFICE OF ENGINEERINGCONTRACT NO.F.A. PROJECT NO
COUNTYITEMIZED PROPOSAL FOR RECONSTRUCTING(Title of Project)A TOTAL CONTRACT LENGTH OF KILOMETERS ROUTE NO.TYPE OF CONSTRUCTION(Description of Work)CAPITAL PROJECT IDENTIFICATION NUMBER .............................................1234.56.789DEPOSIT REQUIRED.......................................................................................$6,000.00COMPLETION DATE ..........................................................................November 15, 1979
NOTE: The bidder is asked to use either black ink or typewriter (black ribbon) in completing the proposalform. Your cooperation is appreciated.
102-14 SAMPLE FORM OF PROPOSAL
ItemNo.
EstimateQuantities Items with unit bid
price written in words
Unit bidprice
Amountbid
Dollars Cts. Dollars Cts.
201.0601 M Necessary Clearing and GrubbingFor.........................lump
sum
Total or gross sum bid written in words......................................................................................................................
Dollars Cts.
$................. $.................
ITEMIZED PROPOSAL
To the State Department of Transportation:In submitting this bid the undersigned declares to be the only person or persons interested in the said
bid; that it is made without any connection with any person making another bid for the same contract; thatthe bid is in all respects fair and without collusion, fraud or mental reservation; and that no official of theState, or any person in the employ of the State is directly or indirectly interested in said bid or in thesupplies or work to which it relates, or in any portion of the profits thereof.
The undersigned also hereby declares to have carefully examined the plans, specifications and formof contract, and to have personally inspected the actual location of the work together with the local
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sources of supply, to be satisfied as to all the quantities and conditions, and understands that in signing thisproposal waives all right to plead any misunderstanding regarding the same.
The undersigned further understands and agrees to furnish and provide for the respective item pricebid all the necessary material, machinery, implements, tools, labor services and other items of whatevernature, and to do and perform all the work necessary under the aforesaid conditions, to complete theimprovement of the aforementioned project in accordance with the plans and specifications for saidimprovement, which plans and specifications it is agreed are a part of this proposal, and to accept in fullcompensation therefor the amount of the summation of the products of the approximate quantitiesmultiplied by the unit prices bid. This summation will hereinafter be referred to as the gross sum bid.
The undersigned further agrees to accept the aforesaid unit bid prices as compensations for anyadditions or deductions caused by variation in quantities due to more accurate measurement, and for usein the computation of the value of the work performed for monthly estimates.
The undersigned further agrees that at any time during the progress of work the State adds, alters oromits portions of the work it shall so perform such work and accept compensation in accordance with theStandard Specifications.
The undersigned further understands and agrees not to start any work until the contract agreementis signed by the Commissioner or the Commissioner's duly authorized representative. In case theundersigned voluntarily undertakes to start work, other than that expressly prohibited in this Subsection,after the contract agreement is signed by the Commissioner but prior to approval by the StateComptroller, the undersigned does so entirely at its own risk and without obligation or responsibility onthe part of the State unless and until the awarded contract becomes effective pursuant to Section 112 ofthe State Finance Law by approval of the State Comptroller and filing in the office of the StateComptroller; and hereby agrees and warrants that, as a prerequisite to the start of any such voluntarywork, accepts, assumes and undertakes all of the provisions of this proposal and of the plans andspecifications of the proposed contract, including all of the provisions and responsibilities thereof relativeto (1) damage, indemnification and holding the State harmless as set forth in said contract documents,and (2) actually furnishing in advance of any contract operations, the required insurance policies of eachand every kind and amount as called for in said contract documents, particularly with relation to workers’compensation and liability insurance policies as set forth in the related specifications; and also agrees andwarrants that all of such policies will be in force and effect on the date of the start of any such contractoperations, whether or not the contract documents have been executed and filed as aforesaid. In no eventshall the undersigned start any contract work which involves a disturbance of the contract site prior toexecution of the contract by the Comptroller.
Accompanying this proposal is a certified check, bank cashier’s check, or Bid Bond on prescribedform, for the specified amount of Deposit Required in case this proposal shall be accepted by the StateDepartment of Transportation, and the undersigned shall fail to execute the contract and in all respectscomply with the provisions of 38 of the Highway Law, as amended, the moneys represented by suchcertified check, bank cashier’s check, or Bid Bond shall be regarded as liquidated damages and shall beforfeited and become the property of the State of New York; otherwise to be returned to the depositorin accordance with the provisions of said 38 of the Highway Law, as amended.
On acceptance of this proposal for said work the undersigned is hereby bound to enter into writtencontract, within ten days of date of notice of award with the said State Department of Transportation, andto comply in all respects with subdivision 6 of 38 of the Highway Law, as amended, in relation to securityfor the faithful performance of the terms of said contract.
NON-COLLUSIVE BIDDING CERTIFICATION(Required by Section 139-d of the State Finance Law)
Section 139-d Statement of non-collusion of bids to the state.
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1. Every bid hereafter made to the State or any public department, agency or official thereof, wherecompetitive bidding is required by statute, rule or regulation, for work or services performed or to beperformed or goods sold or to be sold, shall contain the following statement subscribed by the bidder andaffirmed by such bidder as true under the penalties of perjury: Non-collusive bidding certification.
(a) By submission of this bid, each bidder and each person signing on behalf of any bidder certifies,and in the case of a joint bid each party thereto certifies as to its own organization, under penalty ofperjury, that to the best of his/her knowledge and belief:
(1) The prices in this bid have been arrived at independently without collusion, consultation,communication, or agreement, for the purpose of restricting competition, as to any matterrelating to such prices with any other bidder or with any competitor;
(2) Unless otherwise required by law, the prices which have been quoted in this bid have not beenknowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior toopening, directly or indirectly, to any other bidder or to any competitor; and
(3) No attempt has been made or will be made by the bidder to induce any other person, partner-ship or corporation to submit or not to submit a bid for the purposes of restricting competition;
(b) A bid shall not be considered for award nor shall any award be made where (a) (1) (2) and (3)above have not been complied with, provided however, that if in any case the bidder cannot make theforegoing certification, the bidder shall so state and shall furnish with the bid a signed statementwhich sets forth in detail the reasons therefor. Where (a) (1) (2) and (3) above have not beencomplied with, the bid shall not be considered for award nor shall any award be made unless the headof the purchasing unit of the State, public department or agency to which the bid is made, or his/herdesignee determines that such disclosure was not made for the purpose of restricting competition.
The fact that a bidder (a) has published price lists, rates or tariffs covering items being procured,(b) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (c) has sold the same items to other customers at the same prices being bid,does not constitute, without more, a disclosure within the meaning of subparagraph one (a).
2. Any bid hereafter made to the State or any public department, agency or official thereof by acorporate bidder for work or services performed or to be performed or goods sold or to be sold,where competitive bidding is required by statute, rule or regulation, and where such bid contains thecertification referred to in subdivision one of this section, shall be deemed to have been authorizedby the board of directors of the bidder and such authorization shall be deemed to include the signingand submission of the bid and the inclusion therein of the certificate as to non-collusion as the act anddeed of the corporation.
REQUIRED FOR ALL FEDERAL-AID PROJECTS PURSUANT TO SECTION 112(c) OF TITLE23 U.S. CODE. HIGHWAYS. That the Contractor to whom the above identified contract is to beawarded does hereby tender to the New York State Department of Transportation this sworn statementpursuant to Section 112(c) of Title 23 U.S. Code, Highways and does hereby certify, in conformance withsaid Section 112(c) of Title 23 U.S. Code, Highways that the said Contractor has not, either directly orindirectly, entered into any agreement, participated in any collusion, or otherwise taken any action inrestraint of free competitive bidding in connection with the above identified contract.
BY EXECUTING THIS PROPOSAL, THE CONTRACTOR AGREES TO:
1) perform all work listed in accordance with the Contract Documents at the unit prices bid; subject tothe provisions of §109-16, if applicable.
2) all the terms and conditions of the non-collusive bidding certifications required by Section 139D ofthe State Finance Law;
3) certification of Specialty Items category selected, if contained in this proposal
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4) certification of any other clauses required by this proposal and contained herein.5) certification, under penalty of perjury, as to the current history regarding suspensions, debarments,
voluntary exclusions, determinations of ineligibility, indictments, convictions or civil judgmentsrequired by 49 Code of Federal Regulations, Part 29.
Date ...................., 19......... .................................................................Legal name of individual, partnership or corporation
By ...................................... Signature (Title)
Please Complete Information Requested Below:
The P.O. address of the bidder is:......................... Street Federal Identification No................................................. City and State
If a Corporation
Name Address
........................, President......................................................................................,
........................, Secretary....................................................................................
........................, Treasurer......................................................................................
If a Partnership
Name Address
........................., ..................................................................................................
........................., ..................................................................................................
........................., ..................................................................................................
102-16 SAMPLE FORM OF LABOR RATES
STATE OF NEW YORKDEPARTMENT OF LABOR
BUREAU OF PUBLIC WORKSTATE OFFICE BUILDING CAMPUS
ALBANY, NY 12240
Schedule Type - Complete 6BDate: 04/04/89Refer to:PREVAILING RATE CASE NO.
NYSDOT
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PRC 8902505 NASSAU COUNTYto: Location and Type of Project
NYSDOT-Bldg. 5 D252911 05138.00State Campus Telemetry Traffic MonitorAlbany Rts. 25; 27, 112 & 110
Nassau/Suffolk Cos.
In response to your request, enclosed are schedules of the prevailing hourly wage rates and theprevailing hourly supplements for the above project, together with copies of the Notice of Contract LetIPW-16) for your use. The schedules must be annexed to and form a part of the specifications for thisproject when it is advertised for bids. These schedules have been prepared and forwarded in accordancewith Section 220 of the Labor Law, which provides that it shall be the duty of the fiscal officer to ascertainand determine the schedules of supplements to be provided and wages to be paid to workers, laborers andmechanics employed on public work projects, and to file such schedules with the department havingjurisdiction.
The attached rates are based on the latest information available to the Department of Labor, Bureauof Public Work. Care should be taken to review the rates for obvious errors. It is the responsibility of thePublic Work contractor to use the proper rate. Any corrections should be brought to the Department’sattention immediately.
This schedule is applicable only from July 1, 1988, through June 30, 1989, unless otherwise noted. Ifyour project goes beyond the period covered by this determination, a new determination should berequested when this schedule expires. Note: A 1983 AMENDMENT TO SECTION 220 OF THE LABOR LAWREQUIRES THE PRESERVATION OF ORIGINAL OR TRANSCRIPTS OF PAYROLL RECORDS FOR THREEYEARS FROM THE DATE OF COMPLETION OF THE WORK IN THE AWARDED CONTRACT.
Very truly yours,
DIRECTOR
NOTICE TO CONTRACTING AGENCIES:
Upon cancellation or completion of this project, enter the necessary information and return this page to the ALBANY OFFICE of the BUREAU at the address listed below:
PROJECT HAS BEEN:
Date Completed Date Cancelled Date Postponed Until Signature Title Contracting Agency
For Additional Information, contact the following District Offices:
State Office Bldg. #12 Campus, Albany N.Y. 12240 65 Court St., Buffalo, N.Y. 14202155 Main Street West Rochester, N.Y. ;4614 221 Washington St., Binghamton, N.Y. 13901175 Fulton Ave., Hempstead, N.Y. 11550 333 East Washington St., Syracuse, N.Y. 13202207 Genesee St., Utica. N.Y. 13501 30 Glenn St., White Plains, N.Y. 10603
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PW-200 (6/85) docm: letteria
SPECIAL NOTE: Labor classifications not appearing on this rate sheet con be used only with the consentof the Commissioner of Transportation and then the rate to be paid will be given by the Commissioner ofTransportation after advising with the State Department of Labor.
WAGE SCHEDULE INSTRUCTION SHEET
This Schedule is to be attached to the Contract. It is hereby agreed by the parties to the contractto which this Schedule is attached that all laborers, workmen and mechanics employed on the work donein performance of said contract shall be paid not less than the rate of wages listed hereon for the tradeor occupation of such laborer, workmen or mechanic, and also provided with each supplement list on thisSchedule for such trade or occupation at not less than the amount so listed.
Section 220-b of the New York State Labor Law disqualifies a Contractor from being awarded acontract on any State or municipal contract for 5 years after a determination of willful failure to payprevailing wages or supplements on two occasions within any six year period.
Applicability of Schedule: The attached Schedule is to be used on the public work project whose PRCnumber appears on the Schedule, and supersedes any Schedule of rates previously issued for this project.These wage rates and supplemental benefits are subject to change, and you will be periodically notifiedof all such changes. The wage rates and supplement benefits to be paid should always be those prevailingat the time the work is being performed.
Locations Where Applicable: Contractors should read down the list of locations for a relevantoccupation until they reach a geographical area (whether a village, town, county or group of counties)which includes the area where the work is being performed. The rates appearing on that line will be therates that apply to the project.
Supplemental Benefits Legend:
A. Health & Welfare (includes hospital, F. Educationsurgical or medical insurance or G. Vacationbenefits, life insurance or death H. Apprentice Trainingbenefits, accidental death or dismem- I. Annuity Fundberment insurance). J. Benefit Fund
B. Pension K. Security Savings FundC. Supplemental Unemployment Benefit L. Holiday PayD. Scholarship Fund M. Other (See below)E. Paid Holidays
102-17 SAMPLE FORM OF AGREEMENT
STATE OF NEW YORK
DEPARTMENT OF TRANSPORTATION
AGREEMENT
Contract No.
County
1-23
THIS AGREEMENT, entered into this day of 19___, by THE PEOPLEOF THE STATE OF NEW YORK, hereinafter referred to as “STATE”, acting by and through theDepartment of Transportation, pursuant to the Highway Law, and
G a corporation organized and existing under the laws of the State of
G a partnership, consisting of
G an individual conducting business as
the location of whose principal office is
hereinafter called the “CONTRACTOR”.
WITNESSETH: That the State and the Contractor. for the consideration hereinafter named agree asfollows:
ARTICLE 1. WORK TO BE DONE. The Contractor shall (a) furnish all the materials, appliances,tools and labor of every kind required, and construct and complete in the most substantial and skillfulmanner, the construction, improvement or reconstruction of the project on or before the completion dateof the day of , 19 as further described in Article 4, and as generally identifiedand shown on the plans entitled:
in accordance with the “Standard Specifications” of the New York State Department of Transportation,which contain the information for bidders; form of proposal, agreement, and bonds; generalspecifications and conditions or contract; materials of construction; and payment Items; and (b) doeverything required by the Contract (Contract Documents) as defined herein.
ARTICLE 2. DOCUMENTS FORMING THE CONTRACT. The Contract (and ContractDocuments) shall be deemed to include the advertisement for proposals; the contractor’s proposal; theSchedule for Participation By Disadvantaged Business Enterprise Participation goals; the agreement; the"Standard Specifications" including all addenda thereto referred to above; the plans; any addenda and/oramendments to specifications if the same are issued prior to the date of receipt of proposal, and allprovisions required by law to be inserted in the contract whether actually inserted or not. Appendix A,standard clauses for all N.Y. State contracts, is attached hereto and is hereby made a part of thisagreement as if set forth fully herein.
ARTICLE 3. EXAMINATION OF DOCUMENTS AND SITE. The Contractor agrees that beforemaking its proposal it carefully examined the contract documents, together with the site of the proposedwork, as well as its surrounding territory, and is fully informed regarding all of the conditions affectingthe work to be done and labor and materials to be furnished for the completion of this contract, includingthe existence of poles, wires, pipes and other facilities and structures of municipal and other publicservice corporations on, over or under the site, and that its information was secured by personalinvestigation and research and not from the estimates or records of the Department, and that it will make
§102-17
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no claim against the State by reason of estimates, tests or representations of any officer or agent of theState, except as provided for in this specification.
ARTICLE 4. DATE OF COMPLETION. The Contractor further agrees that it will begin the workherein embraced within ten days of the effective date hereof, unless the consent of the State, in writing,is given to begin at a later date, and that it will prosecute the same so that it shall be entirely completedand performed on or before the completion date shown in Article 1.
No extension beyond the date of completion fixed by the terms of this contract shall be effectiveunless in writing signed by the State. Such extension shall be for such time and upon such terms andconditions as shall be fixed by the State, which may include the assessment of liquidated damages and acharge for engineering and inspection expenses actually incurred upon the work, including engineeringand inspection expenses incurred upon the work by railroad companies on contracts for grade crossingelimination. Notice of application for such extension shall be filed with the Regional Director of theRegion within which the highway under construction is located at least fifteen days prior to the date ofcompletion fixed by the terms of this agreement.
ARTICLE 5. ALTERATIONS AND OMISSIONS. The said work shall be performed in accordancewith the true intent and meaning of the contract documents without any further expense of any naturewhatsoever to the State other than the consideration named in this agreement.
The State reserves the right, at any time during the progress of the work, to alter the plans or omitany portion of the work as it may deem reasonably necessary for the public interest- making allowancesfor additions and deductions with compensation made in accordance with the Standard Specifications, forthis work without constituting grounds for any claim by the contractor for allowance for damages or forloss of anticipated profits, or for any variations between the approximate quantities and the quantities ofthe work as done.
ARTICLE 6. NO COLLUSION OR FRAUD. The Contractor hereby agrees that the only person orpersons interested as principal or principals in the bid or proposal submitted by the Contractor for thiscontract are named therein, and that no person other than those mentioned therein has any interest in theabove mentioned proposal or in securing of the award, and that this contract has been secured withoutany connection with any person or persons other than those named, and that the proposal is in all respectsfair and was prepared and the contract was secured without collusion or fraud and that neither any officernor employee of the State Department of Transportation has or shall have a financial interest in theperformance of the contract or in the supplies, work or business to which it relates, or in any portion ofthe profits thereof. (See also Section 139-a and 139-b of the State Finance Law referred to in the StandardSpecifications which are made a part of this contract.)
ARTICLE 7. PAYMENTS OF ESTIMATES. As the work progresses in accordance with thecontract and in a manner that is satisfactory to the State, the State hereby agrees to make payments tothe Contractor therefor, based upon the proposal attached hereto and made a part hereof, as follows: TheState shall once in each month and on such days as it may fix, make an estimate of the quantity of workdone and of material which has actually been put in place in accordance with the terms and conditionsof the contract, during the preceding month, and compute the value thereof and pay to the Contractor themoneys due as provided in subdivision 7 of §38 of the Highway Law. No monthly estimate shall berendered unless the value of the work done equals 5% of the contract amount or $1,000, whichever is thelesser. Semi-monthly estimates may be rendered provided (a) the value of the work performed in twosuccessive weeks is more than $50,000 or (b) the Commissioner of Transportation deems it to be for thebest interests of the State to do so.
ARTICLE 8. NO ESTIMATE ON CONTRACTOR’S NON-COMPLIANCE. It is further agreedthat so long as any lawful or proper direction concerning the work or material given by the Commissionerof Transportation, or his/her representative, shall remain uncomplied with, the Contractor shall not beentitled to have any estimate made for the purpose of payment, nor shall any estimate be rendered on
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account of work done or material furnished until such lawful or proper direction aforesaid has been fullyand satisfactorily complied with.
ARTICLE 9. FINAL ACCEPTANCE OF WORK. When in the opinion of the Regional Director aContractor has fully performed the work under the contract, the Regional Director shall recommend tothe Commissioner of Transportation the acceptance of the work so completed. If the Commissioneraccepts the recommendation of the Regional Director, he/she shall thereupon by letter notify theContractor of such acceptance, and copies of such acceptance shall be sent to other interested parties.
Final acceptance shall be final and conclusive except for defects not readily ascertainable by theDepartment, actual or constructive, fraud, gross mistakes amounting to fraud or other errors which theContractor knew or should have known about as well as the Department's rights under any warranty orguarantee. Final acceptance may be revoked by the Department at any time prior to the issuance of thefinal check by the Comptroller upon the Department's discovery of such defects, mistakes, fraud orerrors in the work.
ARTICLE 10. FINAL PAYMENT. After the final acceptance of the work, the Engineer shallprepare a final agreement of the work performed and the materials placed and shall compute the valueof such work and materials under and according to the terms of the contract. This agreement shall becertified, as to its correctness, by the Engineer. Upon approval of such final agreement by the RegionalDirector, it shall be submitted to the Commissioner for final approval. The right, however, is herebyreserved to the Commissioner to reject the whole or any portion of the final agreement, should the saidcertificate of the Engineer be found or known to be inconsistent with the terms of the agreement orotherwise improperly given. All certificates upon which partial payments may have been made beingmerely estimates, shall be subject to correction in the final certificate or final agreement.
ARTICLE 11. RIGHT TO SUSPEND WORK AND CANCEL CONTRACT. It is further mutuallyagreed that if at any time during the prosecution of the work the Commissioner of Transportation shalldetermine that the work upon the contract is not being performed according to the contract or for the bestinterest of the State, the execution of the work by the Contractor may be temporarily suspended by theCommissioner of Transportation, who may then proceed with the work under his/her own direction insuch manner as will accord with the contract specifications and be for the best interests of the State; orhe/she may terminate the Contractor’s employment under the contract while it is in progress, andthereupon proceed with the work, in affirmance of the contract, by contract negotiated or publicly let,by the use of his/her own forces, by calling upon the surety to complete the work in accordance with theplans and specifications or by a combination of any such methods; or he/she may cancel the contract andeither readvertise or relet as provided in Section 38 of the Highway Law, or complete the work underits own direction in such a manner as will accord with the contract specifications and be for the interestsof the State; any excess in the cost of completing the contract beyond the price for which it was originallyawarded shall be charged to and paid by the Contractor failing to perform the work or its surety; all inpursuance of the provisions of §40 of the Highway Law.
Whenever the State determines to suspend or stop work under the contract, a written notice sent bymail to the Contractor at its address and to the sureties at their respective addresses, shall be sufficientnotice of its action in the premises.
ARTICLE 12. DETERMINATION AS TO VARIANCES. In any case of any ambiguity in the plans,specifications or maps, or between any of them, the matter must be immediately submitted to theCommissioner, who shall adjust the same, and his/her decision in relation thereto shall be final andconclusive upon the parties.
ARTICLE 13 DELAYS, INEFFICIENCIES, AND INTERFERENCE. The Contractor agrees tomake no claim for extra additional costs attributable to any delays, inefficiencies, or interferences in theperformance of this contract occasioned by any act or omission to act by the State or any of itsrepresentatives except as provided in Subsection (B) of this Article. The Contractor also agrees that any
§102-17
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such delay, inefficiency, or interference set forth in Subsection (A) shall be compensated for solely byan extension of time, with or without engineering charges as appropriate, to complete the performanceof the work in accordance with the provisions of §108-04 in the Standard Specifications unless thesituation comes under the provisions of §109-16 where compensation and/or extension of time areauthorized under §109-16. In the event the Contractor completes the work prior to the contractcompletion date set forth in the proposal, even if it informs the Department of its intention to completeearly or submits a schedule depicting early completion, the Contractor hereby agrees to make no claimfor extra costs due to delays, interferences or inefficiencies in the performance of the work except asprovided for in Subsection (B) of this Article.
A. The Contractor further agrees that it has included in its bid prices for the various items of thecontract any additional costs for delays, inefficiencies, or interferences affecting theperformance or scheduling of contract work caused by, or attributable to, the following instances:
1. The work or the presence on the contract site of any third party, including but not limited tothat of other contractors or personnel employed by the State, by other public bodies, byrailroad, transportation or utility companies or corporations, or by private enterprises, or anydelay in progressing such work by any third party.
2. The existence of any facility or appurtenance owned, operated, or maintained by any thirdparty.
3. The act, or failure to act, of any other public or governmental body, including, but not limitedto, approvals, permits, restrictions, regulations or ordinances.
4. Restraining orders, injunctions, or judgments issued by a court. 5. Any labor boycott, strike, picketing or similar situation. 6. Any shortages of supplies of materials required by the contract work. 7. Climatic conditions, storms, floods, droughts, tidal waves, fires, hurricanes, earthquakes,
landslides, or other catastrophes. However, payment may be made for repairing damageto the work caused by <Occurrences’ as provided in §107-09.
8. Determinations by the Department to open certain sections of the project to traffic beforecompletion of the entire contract work.
9. Increases in contract quantities, additional contract work, or extra work or for delays in thereview or issuance of orders-on-contract, or shop drawings, or field change sheets.However, payment for performance of extra work will be made pursuant to §109-05, orunder §109-16, as applicable.
10. Failure of the State to provide individual rights-of-way parcels for an extended period of timebeyond that indicated by the contract, if such unavailability, as determined by theCommissioner, does not significantly affect the scheduled completion of the contract.
11. Unforeseen or unanticipated surface and subsurface conditions except as permitted under§109-16.
12. Stop work orders issued by the Engineer, pursuant to §105-01, except as permitted under§109-16.
13. Any situation which was, or should have been, within the contemplation of the parties at thetime of entering into the contract.
14. Award of the contract by the State more than forty-five (45) days beyond the letting date.
B. The Contractor agrees that the only claims it may make for extra compensation caused by delay,inefficiencies, or interference affecting the performance or the scheduling of contract work willbe solely limited to those arising out of the following instances:
1. The issuance by the Commissioner of a stop work order under §109-16 relative to asubstantial portion of work, which the Commissioner determines to significantly affect thescheduled completion of the contract, other than those orders issued pursuant to §105-01.
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2. The unavailability of critical rights-of-way parcels for such an extended period of timebeyond that indicated in the contract which the Commissioner determines to significantlyaffect the scheduled completion of the contract.
With respect to paragraph 1 and 2, in all such instances, the Contractor must complywith, and compensation shall conform to, the requirements of §109-05 D.
3. For any other situations that come under the provisions of §109-16, that section shall becontrolling.Failure of the Contractor to adequately progress the completion of the work will be
considered in determining whether the foregoing instances are the primary causes of delay. In all of such instances, for any claim asserted under this section, the Contractor shall keep
detailed written records of the costs and agrees to make them available to the Department at anytime for purposes of audit and review.
Any dispute relating to such claims shall be promptly submitted to the Commissioner inwriting and the Commissioner's determination shall be final and binding on the Contractor subjectto the Contractor's right to assert a claim in the New York State Court of Claims. Failure by theContractor to notify the Commissioner in writing or to maintain and furnish cost records of suchclaims shall constitute a waiver of the claim.
C. The provisions of this Article apply only to claims for extra or additional costs attributable todelays, inefficiencies, or interferences and do not preclude determinations by the Commissionerallowing reimbursement for additional costs for extra work pursuant to §105-14 and §109-05.
ARTICLE 14. SUCCESSORS AND ASSIGNS. This agreement shall bind the successors, assignsand representatives of the parties hereto.
IN WITNESS WHEREOF, this agreement has been executed by the State, acting by and through theCommissioner of Transportation, and the Contractor or its appointed representative, who has executedthis agreement on the day and year first written above.
Recommended by
.................................................... ......................................................Department of Transportation
.................................................... ......................................................Attorney General (L.S.)
By..................................................President
Approved .......................................
THIS CONTRACT IS NOT TO BE.................................................... EXECUTED OR BECOME EFFECTIVE UNTIL
For State Comptroller IT SHALL FIRST BE APPROVED BY THESTATE COMPTROLLER AND FILED IN
HIS/HER OFFICE--
Section 112, State Finance Law.
(Acknowledgement by individual contractor)
§102-17
1-28
STATE OF NEW YORKss. :
COUNTY OF.............
On this.............................................day of..........................................19....., beforeme personally came.........................................to me known to me to be the person described inand who executed the foregoing instrument, and acknowledged that he/she executed the same.
.................................................Notary Public County
(Acknowledgement by co-partnership contractor)
STATE OF NEW YORK ss. :
COUNTY OF.............
ss. :
On this..............................................day of............................19....., before mepersonally came and appeared.....................to me known and known to me to be the person whoexecuted the above instrument, who, being duly sworn by me, did for himself/herself depose and say thathe/she is a member of the firm of.........................., consisting of himself/herself and........................................and that he/she executed the foregoing instrument in the firm nameof..................................and that he/she had authority to sign same, and he/she did dulyacknowledge to me that he/she executed the same as the act and deed of said firmof............................................, for the uses and purposes mentioned therein.
.................................Notary Public
(Acknowledgement by contractor, if a corporation)
STATE OF NEW YORKss. :
COUNTY OF.............
On this............................................................day of..............19....., before mepersonally came...............................................to me known, who being duly sworn, did deposeand say that he/she resides in............................that he/she is the.............................ofthe...........................the corporation described in and which executed the foregoing instrument; andthat he/she signed his/her name thereto by order of the Board of Directors of said Corporation.
.................................Notary Public
102-18 SAMPLE FORM OF FAITHFUL PERFORMANCE BOND
1-29
1. Know all by these presents, that we (hereinafter called the “Principal”)
......................................of...........................................................
......................................of...........................................................
......................................of...........................................................
and .....................................of...........................................................
(hereinafter called the “Surety”) are held and firmly bound unto the People of the State of New York inthe full and just sum of ............. Dollars ($.................) good and lawful money of the United Statesof America, to the payment of which said sum of money, well and truly to be made and done the saidPrincipal binds itself, its heirs, executors, administrators or assignees and the said SURETY binds itself,its successors or assigns, jointly and severally, firmly by these presents.
2. Signed and dated this .......... day of ....................., 19....
3. Whereas, said Principal has entered into a certain written contract bearing date on the ......... dayof ...................., 19...., with the People of the State of New York for the construction or improvement of Public Highwaymaintenance or repairCounty
State Highway No. ..........in the counties county of ................
Federal AidNew York
Now, therefore, THE CONDITION OF THIS OBLIGATION IS SUCH that if the said Principalshall well, truly and faithfully perform the work in accordance with the terms of the contract and saidcontract may be modified or amended, and with the plans and specifications, and will commence andcomplete the work within the time prescribed in the contract, and shall protect the said State ofNew York against, and pay any excess of cost as provided in said contract, and all amounts, damages,costs and judgments which may be recovered against said State or its officers or agents of which the saidState of New York may be called upon to pay to any person or corporation by reason of any damages,direct or indirect, arising or growing out of the doing of said work, or from the negligence, nonfeasance,misfeasance or malfeasance of any officer, agent or employee of the State or Department thereof, orsuffered or claimed on account of said public works project during the time thereof or the manner ofdoing the same, or the neglect of the said Principal, or its agents, or servants, or the improperperformance of the said work by the said Principal, or its agents, or servants, or from any other cause,then this obligation shall be null and void, otherwise to remain in full force and virtue.
In the event of a failure of performance of the contract by the Principal, which shall include, but notbe limited to, any breach or default of the contract by the Principal, or in case said contract is forfeitedby the Principal in the manner provided for in the contract and the said SURETY, for value received,hereby stipulates and agrees, if requested to do so by the State, has the option to either remedy thedefault, or breach or forfeiture of the Principal or take charge and fully perform and complete the work,mentioned and described in said contract and specifications, pursuant to the terms, conditions andcovenants thereof and as may be amended, at its own expense. The procedure by which the Suretyundertakes to discharge its obligations under the bond shall be subject to the advance written approval ofthe Department. If the Surety completes the contract, it shall be paid for the actual items of work
§102-18
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performed in accordance with the Principal's contract terms and prices. In this event the Surety assumesthe rights and obligations of the Principal.
It shall be the duty of the SURETY to give unequivocal notice in writing to the Department, withinforty-five (45) days after receipt of written notice from the Department to the SURETY, of theSURETY's election to remedy default(s) or breach(es) or forfeiture(s) promptly or to perform and fullycomplete the contract promptly as provided herein, time being of the essence of this bond. In said noticeof election, the Surety shall state the date on which the remedy or performance shall commence. Duringthe period between the Department's notice and Surety's performance of the contract or remedy of thedefault, breach or forfeiture, the SURETY shall be liable for and agrees to pay any and all reasonableand necessary costs as determined by the Department to maintain the project site safe and convenient tothe public.
It shall also be the duty of the Surety to give prompt notice in writing to the State Department ofTransportation upon the completion of the remedy and/or correction of each breach or default orcompletion of the contract. The Surety shall not assert solvency of its Principal or its Principals denialof default as justification for its failure to give notice of election or for its failure to promptly remedy thebreach or default or to complete the contract.
In the event the Surety shall fail to exercise either option or to act promptly then the State Departmentof Transportation shall give ten (10) days notice of such failure, both to Principal and Surety, and afterthe expiration of the 10 days the Department may cause the work to be completed pursuant to §40 of theHighway Law, and the Surety and the Principal shall be jointly and severally liable for the amount ofexcess cost of completing the contract work beyond the amounts remaining for this contract adjusted forthe work actually performed. When the cost of completion of performance by the Obligee is estimated,the Principal and Surety shall pay, free from all liens and incumbrances, the State determined estimatedcompletion costs above the funds remaining for this contract, to the State Department of Transportationwithin 30 days of receipt of the estimate. Adjustment of the Department's estimated completion cost willbe made upon the Department's final acceptance of the work and appropriate refunds, if any, will bepromptly made to the Surety. Any actual costs in excess of the estimated price shall be paid to StateDepartment of Transportation promptly on demand. Additionally, Principal and Surety shall be liablefor any applicable liquidated and/or engineering costs or damages.
In addition, the said Principal and Surety further agree, as part of this obligation, to pay all damagesof any kind to person or property that may result from a failure in any respect to perform and completesaid contract including, but not limited to costs necessary to protect the travelling public or to avoidinconvenience to the travelling public, (liquidated damages as provided above) all repair and replacementcosts necessary to rectify construction errors, architectural and engineering costs and fees, all consultantfees, all testing and laboratory fees, and all interest, legal fees and litigation costs incurred by theDepartment.
And the said Surety thereby stipulates and agrees that no change, extension, alteration, deduction oraddition in or to the terms of the said contract or the plans or specifications accompanying the same, shallin any way affect the obligations of said Surety of its bond.
__________________________________________________________________________ Principal_____________________________________
__________________________________________________________________________ Surety_____________________________________
By: ________________________________
STATE OF NEW YORKOFFICE OF THE ATTORNEY GENERAL
1-31
I hereby approve the foregoing contract and bond as to form and manner of execution.Dated ................................. .............................
Attorney General
(Acknowledgment by principal, unless it be a corporation)
STATE OF NEW YORKss. :
COUNTY OF................
On this..............................................day of............................19....., before mepersonally came...............................................to me known to be the person described in andwho executed the foregoing instrument and he/she acknowledged that he/she executed the same.
.......................................Notary Public County
(Acknowledgement by principal, if a corporation)
STATE OF NEW YORKss. :
COUNTY OF................
On this..............................................day of............................19....., before mepersonally came................................to me known, who being by me duly sworn, did depose andsay that he/she resides in.............that he/she is the.........................of the........................thecorporation described in and which executed the foregoing instrument; and that he/she signed his/hername thereto by order of the Board of Directors of said Corporation.
.......................................Notary Public County
(Acknowledgement by Surety Company)
STATE OF NEW YORK ss. :
COUNTY OF................
On this..............................................day of............................19....., before mepersonally came................................to me known, who being by me duly sworn, did depose andsay that he/she resides in.......................that he/she is the...................of the.....................thecorporation described in and which executed the foregoing instrument; and that he/she signed his/hername thereto by order of the Board of Directors of said Corporation.
.......................................Notary Public County
(The Surety Company must append statement of its financial condition and a copy of the resolutionauthorizing the execution of Bonds by officers of the Company.)
§102-19
1-32
102-19 SAMPLE FORM OF LABOR AND MATERIAL BOND
Know all by these presents, That..............................of.............................(hereinaftercalled the “Principal”) and the.............................................a corporation created and existingunder the laws of the State of........................having its principal office in the Cityof............................(hereinafter called the “SURETY”), are held and firmly bound unto the peopleof the State of New York (hereinafter called the “STATE”), in the full and just sum of..good and lawfulmoney of the United States of America, for payment of which said sum of money, well and truly to bemade and done, the said Principal binds itself, its heirs, executors and administrators, successors andassigns, and the said Surety binds itself, its successors and assigns jointly and severally, firmly by thesepresents:
Signed and dated this.................................. 19....A.D.
WHEREAS, said PRINCIPAL has entered into a certain written contract, bearing date with theDepartment of Transportation, 1220 Washington Avenue, Albany, New York 12232.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principalshall promptly pay all moneys due to all persons furnishing labor or materials to it or its subcontractorsin the prosecution of the work provided for in said contract, then this obligation shall be void, otherwiseto remain in full force and effect;
Provided, however, that the Comptroller of the State of New York having required the said Principalto furnish this bond in order to comply with the provisions of 137 of the State Finance Law, all rights andremedies on this bond shall inure solely to such persons and shall be determined in accordance with theprovisions, conditions and limitations of said Section to the same extent as if they were copied at lengthherein; and
Further, provided, that the place of trial of any action on this bond shall be in the county in which thesaid contract was to be performed, or if said contract was to be performed in more than one county thenin any such county, and not elsewhere.
IN TESTIMONY WHEREOF, the said PRINCIPAL has hereunto set his/her (their, its) hand and thesaid Surety has caused this instrument to be signed by its................................................Presidentand its.........................................................Secretary, the day and year first above written.
Signed and deliveredin the presence of
...............................................
...............................................Principal
.......................................................Company
Of........................................................By........................................................
(Title of Officer)
Attest..................................................(Title of Officer)
Surety
(Acknowledgement by principal, unless it be a corporation)
1-33
STATE OF NEW YORKss. :
COUNTY OF..................
On this..............................................day of............................19....., before mepersonally came..............................to me known and known to me to be the person described in andwho executed the foregoing instrument and acknowledged that he/she executed the same.
........................................Notary Public County
(Acknowledgement by principal, if a corporation)STATE OF NEW YORK
ss. : COUNTY .....................
On this..............................................day of............................19....., before mepersonally came................................to me known, who being by me duly sworn, did depose andsay that he/she resides in......................... that he/she is the.......................ofthe...............................the corporation described in and which executed the foregoing instrument;and that he/she signed his/her name thereto by order of the Board of Directors of said Corporation.
Notary Public County
(Acknowledgement by Surety Company)
STATE OF NEW YORK ss. : COUNTY OF..........
On this..............................................day of............................19....., before mepersonally came................................to me known, who being by me duly sworn, did depose andsay that he/she resides in............that he/she is the..................of the................the corporationdescribed in the foregoing instrument; and that he/she signed his/her name thereto by order of the Boardof Directors of said corporation.
.....................................Notary Public County
STATE OF NEW YORK
I hereby approve the foregoing contract and bond as to form and manner of execution.Dated ................................................... ....................................
Attorney General
STATE OF NEW YORK
I hereby approve the foregoing contract and bond.Dated ....................... ................................
Comptroller
§102-20
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102-20 SAMPLE FORM OF BID BOND
KNOW ALL BY THESE PRESENTS, That......................................................................................................................................................................................................
(Name of Contractor)..............................................................................................................................
(Address)
(hereinafter called the "Principal") and the..................................................................................................................................................................................................a corporation created and existing under the laws of the State of ........................., having its principaloffice in the City of ........................ (hereinafter called the "Surety"), are held and firmly bound untoThe People of the State of New York (hereinafter called the "State"), in the full just sum of Twenty-FivePercent (25%) of Attached Bid, good and lawful money of the United States of America, for the paymentof which said sum of money, well and truly to be made and done, the said Principal binds themselves(himself/herself, itself), their (his/her, its) heirs, executors and administrators, successors and assigns,and the said Surety binds itself, its successors and assigns jointly and severally, firmly by these presents:Signed, sealed and dated this ........................................................................ 19......A.D. WHEREAS, the said Principal has submitted to the Commissioner of Transportation of the State ofNew York, a proposal for ...............................................................................................
(Description of Project)............................................................................................................................................................................................................................................................AND
WHEREAS, under the terms of the Laws of the State of New York as above indicated, the saidPrincipal has filed or intends to file this bond to guarantee that the Principal will execute all requiredcontract proposal documents and furnish such faithful performance or other bonds as may be requiredby law in accordance with the terms of the Principal's said proposal.
NOW, THEREFORE, the condition of the foregoing obligation is such, that if the said Principal shallpromptly execute and submit, and the Commissioner of Transportation shall accept, all required contractproposal documents including such faithful performance bond or other bonds as may be required by lawin accordance with the terms of the Principal's said proposal, then this obligation shall be null and void,otherwise to remain in full force and virtue.
IN TESTIMONY WHEREOF, the said Principal has hereunto set his/her (their, its) hand and sealand the said Surety has caused this instrument to be signed by its ......................... President and its..............................Secretary, and its corporate seal to be hereunto affixed, the day and year firstabove written.Signed, sealed and delivered in the presence of:
(Corporate seal .....................................................(L.S.)of Principal if acorporation) .....................................................(L.S.)
.....................................................(L.S.)Principal
(Corporate seal ..................................................Companyof Surety Co.)
of ........................................................
By .........................................................
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(Title of Officer)Attest .....................................................
(Title of Officer)
(Acknowledgment by principal, unless it be a corporation)STATE OF NEW YORK
SS:COUNTY OF .........................................
On this ............ day of.............................................19......., before me personally came...................................., to me known and known to me to be the person described in and whoexecuted the foregoing instrument, and acknowledged that he/she executed the same.
.................................................................Notary Public County
(Acknowledgment by principal, if a corporation)STATE OF NEW YORK
SS:COUNTY OF .........................................
On this ....... day of ....................................................19...., before me personally came......................................, to me known who being by me duly sworn, did depose and say thathe/she resides in .........................................; that he/she is the ................................... ofthe ...........................; the corporation described in and which executed the foregoing instrument;that he/she knew the seal of said corporation; that the seal affixed to said instrument was such corporateseal; that it was so affixed by order of the Board of Directors of said corporation, and that he/she signedhis/her name thereto by like order.
.................................................................Notary Public County
(Acknowledgment by Surety Company)STATE OF NEW YORK
SS:COUNTY OF .........................................
On this ....... day of .................................................19........, before me personally came..........................................., to me known, who being by me duly sworn, did depose and say thathe/she resides in ............................................; that he/she is the ................................. ofthe ...........................; the corporation described in and which executed the within instrument; thathe/she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal;that it was so affixed by the order of the Board of Directors of said corporation, and that he/she signedhis/her name thereto by like order.
.................................................................Notary Public County
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102-21 MINORITY/WOMEN'S BUSINESS ENTERPRISE UTILIZATION. FOR NON-F.A.CONTRACTS It is the policy of the United States and of the State of New York that Minority andWomen's Business Enterprises (M/WBEs) shall have the maximum opportunity to participate in theperformance of State contracts for construction. The parties to this contract shall take all necessary andreasonable steps in accordance with the laws, rules and regulations cited in this section to ensure thatM/WBEs have the maximum opportunity to compete for and perform contracts. The Department andits Contractors shall not discriminate on the basis of race, color, national origin, or sex in the award andperformance of NYSDOT contracts. This policy shall be made a part of all subcontracts and agreementsentered into as a result of this contract.
New York State, to this end, has enacted Article 15-A of the Executive Law, Part 540, Subtitle Nof Title 9 of the NYCRR, and Chapter 2, Title 17 of the Official Compilation of Codes, Rules, andRegulations. The parties to this contract are required to comply with these laws, rules and regulationsand the following M/WBE Program requirements.
A. Eligibility of M/WBEs - Only those M/WBE firms that are certified by the New York StateDepartment of Economic Development (NYSDED) are eligible to be used for goal attainment on thiscontract. M/WBE certification is not an endorsement of the quality or performance of the businessbut simply an acknowledgement of the firm's status as a M/WBE.
In the event that the apparent low Bidder, in good faith, proposes to use a firm that is listed as acertified M/WBE in the project proposal, and that firm is later found by the Department to beineligible or unable to perform, then the apparent low Bidder will be required to substitute anothercertified firm of the kind needed to meet the goal, before award, at no additional cost to theDepartment.
B. Goal - The Department has established utilization goals for M/WBEs which are expressed as apercentage of the total contract price. These goals are stated in the proposal and remain in effectthroughout the life of the contract. In executing the contract or bid documents the Bidder declaresthat he/she subscribes to the utilization goals and must meet or exceed the goals or demonstrate thathe/she could not meet them despite his/her best efforts. The contract goals are then considered tobe a target or a minimum figure to which the Contractor commits as part of his/her bidding for a100% State funded project. When the contract is awarded with M/WBE participation that is less thanthe contract goals, the Prime Contractor is required to continue good faith efforts, as defined inSection F, throughout the life of the contract in order to increase the M/WBE participation to meetor exceed the contract goals.
C. Zero Percent Goals - For contracts which have 0% (zero percent) goals, the Bidder agrees tomake good faith efforts to utilize certified M/WBEs for any subcontracts awarded by the Bidder inconnection with the contract.
D. Counting M/WBE Participation Towards M/WBE Goals - M/WBE participation shall becounted toward meeting the M/WBE goals in accordance with the following:
1. Subcontracting. If a firm is determined to be an eligible M/WBE, as defined in Section A,the total M/WBE agreed amount of the items of work to be performed by the M/WBE is countedtoward the applicable M/WBE goal except as provided in paragraphs 2, 3 and 4 below.2. Joint Ventures. Joint ventures between certified M/WBE firms and non-M/WBE firms assubcontractors will be counted toward the M/WBE contract goal in proportion to the percentageof ownership and control of each firm within the joint venture, subject to approval by theDepartment of the joint venture agreement to be furnished by the Bidder before award of thecontract. The joint venture agreement must include a detailed breakdown of the following:
a. Contract responsibility of the M/WBE for specific contract items of work,b. Capital participation by the M/WBE,c. Specific equipment to be provided to the joint venture by the M/WBE,d. Specific responsibilities of the M/WBE in the control of the joint venture,
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e. Specific staffing and skills to be provided to the joint venture by the M/WBE, andf. Percentage distribution to the M/WBE of the projected profit or loss incurred by the joint
venture.In addition to these requirements, the M/WBE joint venturer must perform a commercially usefulfunction as a M/WBE subcontractor as defined in Section E.3. Suppliers (Regular Dealers), Manufacturers, and Fabricators. Count toward the M/WBEgoals the expenditures for materials and supplies obtained from M/WBE suppliers (regulardealers) and manufacturers in the amount noted below. The M/WBE supplier or manufacturermust assume the actual and contractual responsibility for the provision of the materials andsupplies.
a. Count the entire expenditure to a M/WBE manufacturer. A manufacturer is a firm thatoperates or maintains a factory or establishment that produces on the premises the materialsor supplies obtained by the Contractor.b. Count the entire expenditure to a M/WBE fabricator. A fabricator is a firm thatsubstantially alters materials or supplies before resale.c. Count 60% (sixty percent) of the expenditure to a M/WBE supplier. A supplier is a firmthat owns, operates, or maintains a store, warehouse, or other establishment in which thematerials or supplies required for the performance of the contract are bought, kept in stock,and regularly sold to the public in the usual course of business. It is a firm that engages in,as its principal business, and in its own name, the purchase and sale of the products inquestion. One who deals in bulk items such as steel, cement, gravel, stone and petroleumproducts need not keep such products in stock, if it owns or operates distribution equipment.d. The Bidder must indicate in the form of an explanation on the AAPHC-89, M/WBEUtilization Worksheet, the item number(s) for the material to be supplied.
EXAMPLE:______________________________________________________________________________ITEM NUMBER NAME LESS THAN 100% AMOUNT
619.17 M Supply Temporary XX% $ VALUEConcrete Barrier
4. Trucking Services. Count toward the M/WBE goals the expenditure for trucking servicesprovided by certified M/WBEs in accordance with the following:
a. Count the pro-rated value of trucking services provided by trucks owned or leased on along-term basis by the M/WBE trucking firm that appears on the AAPHC-89. For purposesof this Section, a long-term lease is a lease of six (6) months or more. Also, trucks that areleased on a long-term basis are leased without an operator.b. Count the pro-rated value of trucking services provided by trucks hired or rented fromother certified M/WBE trucking firms by the M/WBE trucking firm that appears on theAAPHC-89. Hired or rented trucks may include operators.c. No credit will be received for the value of trucking services that are provided by trucksthat are not owned, leased on a long-term basis, hired or rented from certified M/WBEtrucking firms.
EXAMPLE:
Ten (10) trucks are needed to perform $50,000 of trucking services. The M/WBE whoappears on the AAPHC-89 will provide two (2) self-owned trucks and three (3) trucks hiredfrom M/WBE trucking firms for a total of five (5) certified M/WBE trucks providingtrucking services. The remaining five (5) trucks are not obtained from certified M/WBEtrucking firms. In this situation, 50% (fifty percent), or $25,000, can be counted toward theM/WBE goals.
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d. The Bidder must indicate in the form of an explanation on the AAPHC-89 the itemnumber(s) for which the trucking services are to be performed, the type of trucking serviceto be performed (on-site vs. off-site), and the corresponding dollar value for those services(per item).
EXAMPLE:______________________________________________________________________________ITEM NO. NAME LESS THAN 100% AMOUNT403.11 M Off-site XX% $VALUE
Trucking Svc.For Item 403.11 M
e. The Bidder must provide before award, the calculations and any pertinent documentationthat support the dollar value of the proposed M/WBE trucking services. The Bidder mustalso provide before award a list of all proposed M/WBE trucking firms to be used on theproject and the number of trucks to be provided by each proposed M/WBE trucking firm. f. On-Site Trucking. For purposes of this Section, on-site trucking is defined as: 1. Withinthe boundaries of the physical place where the construction will remain. 2. Off-site facilitiesthat are dedicated exclusively to the performance of the contract and are so located inproximity to the actual construction location that it would seem reasonable to include them.
Trucking services provided for on-site trucking are considered to be a subcontractingactivity. The M/WBE trucking firm that appears on the AAPHC-89 may not subcontract anyportion of their on-site trucking operations.g. Off-Site Trucking. For purposes of this Section, off-site trucking is defined as: 1.Outside of the boundaries of the physical place where the construction will remain. 2. Off-site facilities that were established by a commercial supplier or material supplier prior toaward of the project and used for multiple customers.
Trucking services provided for off-site trucking are not considered to be a subcontractingactivity; it is considered to be a service.h. The M/WBE trucking firm that appears on the AAPHC-89 must control the day-to-daytrucking operations on the project. The M/WBE is responsible for:
1. Negotiating and executing rental/leasing agreements;2. Hiring and firing the work force;3. Coordinating the daily trucking needs with the Prime Contractor;4. Scheduling and dispatching trucks.
5. The Bidder must explain in writing the scope of work to be performed by the M/WBE for allitems indicated as partial items on the AAPHC-89 at the time the low Bidder submits theUtilization Package.6. A M/WBE that holds a Department contract may not count its own utilization in the contracttoward the M/WBE contract goals.
E. Conditions of Participation - M/WBE participation will be counted toward meeting theM/WBE contract goals, subject to all of the following conditions:
1. Commercially Useful Function. The Prime Contractor is responsible for ensuring thatM/WBEs performing work on the contract perform a commercially useful function. A M/WBEis considered to perform a commercially useful function when it is responsible for the executionof a distinct element of work on a contract and carries out his/her responsibilities by actuallyperforming, managing, and supervising the work involved in accordance with normal industrypractice (except where such practices are inconsistent with the M/WBE regulations). Regardlessof whether an arrangement between the Contractor and the M/WBE represent standard industrypractice, if the arrangement erodes the ownership, control or independence of the M/WBE or
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in any other way does not meet the commercially useful function requirement, the Contractorshall receive no credit toward the goal.2. Work Force. The M/WBE firm must employ a work force, (including administrative andclerical) separate and apart from that employed by the Prime Contractor, other subcontractorson the project, or their affiliates. This does not preclude the employment by the M/WBE of anindividual that has been previously employed by another firm involved in the contract, providedthat the individual was independently recruited by the M/WBE in accordance with customaryindustry practice. The routine transfer of work crews from another employer to the M/WBEshall not be allowed.3. Supervision. All work performed by the M/WBE must be controlled and supervised by theM/WBE without duplication of supervisory personnel from the Prime Contractor or othersubcontractors. This does not preclude routine communication between the supervisory personnelof the M/WBE and other supervisors necessary to coordinate the work of the contract.4. Equipment. M/WBE subcontractors may supplement their equipment by renting or leasingadditional equipment in accordance with customary industry practice. However, no more than50% of the equipment required to perform the work of the subcontractor may be obtained fromthe Prime Contractor, other subcontractors on the project, or their affiliates. If the M/WBEobtains equipment from any of those sources, the Department shall obtain from the M/WBEdocumentation demonstrating that similar equipment and terms could not be obtained at a lowercost from other customary sources of equipment. The required documentation shall include, butnot be limited to, copies of the rental or leasing agreements, and the names, addresses, and termsquoted by other sources of equipment.
F. Good Faith Efforts - To ensure that M/WBE firms are given the maximum practicalopportunity to participate in the work of the contract, the Bidder must make good-faith efforts toobtain M/WBE participation in order to fulfill the M/WBE contract goals. The Bidder'sdemonstration of good-faith efforts must be at least as extensive as, but not limited to, the following:
1. Efforts to utilize the services of minority and women community organizations; minority andwomen contractors groups; local, State and Federal minority and women business assistanceoffices; and other organizations that provide assistance in the recruitment and placement ofM/WBEs.2. Attendance by a representative of the Bidder who is knowledgeable of the contract work atpre-bid, pre-award, and/or other meetings, if any, scheduled by the Department to informM/WBEs of subcontracting and other opportunities for participation in a specific contract. Atthese meetings, the Bidder's representative will explain the required contract work and solicitthe interest of the M/WBE attendees in any specific portions of the work.3. Efforts to secure participation by certified M/WBE firms. Only M/WBEs certified by theNYSDED shall be used to fulfill goals on 100% State funded projects.4. Written solicitation of M/WBEs. A written solicitation inquiry, using the form prescribedin the contract proposal, and including a copy of the list of items and estimated quantities for thecontract and a copy of Form AAP-11, Solicitation Response, pre-addressed for return to theBidder, will be sent to all M/WBE firms and, when necessary, minority and women's businessassociations located within the NYSDOT regions when necessary in order to meet M/WBEgoals. Notification must be made in a timely fashion such that the M/WBEs contacted have areasonable period of time in which to respond. The Bidder's solicitation will cover certifiedM/WBEs listed in the New York State Directory of Certified Minority and Women-OwnedBusiness Enterprises maintained by NYSDED. Such geographic limits are not acceptable as goodfaith efforts for work typically subcontracted to non-M/WBE firms on a statewide basis, e.g.,pavement markings, guide rail, etc. It will be mandatory for the Bidder to contact all M/WBEswho have expressed interest in the specific contract to the Bidder and to document efforts takento secure their participation in the contract and in any future work.
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5. Efforts to select portions of the work proposed to be performed by M/WBEs in order toincrease the likelihood of achieving the stated contract goal. Where certified M/WBEs haveexpressed interest to the Bidder in performing certain work that the Bidder normally performswith his/her own forces, and the contract goal has not otherwise been attained, the Bidder willbe required to subcontract such work or portions of it in order to meet the goal.6. Efforts to negotiate with M/WBEs for specific subcontracts. Price alone will not be anacceptable basis for rejecting M/WBE bids, unless it can be shown that no reasonable price canbe obtained from a M/WBE.7. Efforts to assist the M/WBEs contacted which needed assistance in obtaining bonding orinsurance required by the Bidder or the Department. Difficulties encountered by the M/WBEin obtaining bonding or insurance required by the Bidder will not be acceptable reasons for theBidder's failure to meet the contract goal.8. Providing interested M/WBEs with adequate information about the plans, specifications andrequirements of the contract.9. Record of solicitation effort. All Bidders must keep records of efforts to solicit and negotiatewith M/WBEs, using Form AAP-10, Solicitation Log, as a continuing record of pre- and post-letting activity. When submitting a D/M/WBE Schedule of Utilization (Form AAP-19) to theDepartment, the apparent low Bidder will attach the log, together with the supplementalinformation specified in the instructions for the AAP-10, as evidence of good-faith efforts. Suchsupplemental efforts must include at least the following:
a. All Solicitation Responses, Form AAP-11, returned to the Bidder by M/WBEs;b. All envelopes of solicitation inquires that were returned as undeliverable; andc. Any quotations submitted by M/WBEs that are not included in the M/WBE Schedule ofUtilization with an explanation for the Bidder's action in each case.
G. M/WBE Utilization Package - The Bidder shall submit a complete utilization package withinseven (7) calendar days after the bid opening. The M/WBE utilization package consists of:
1. Form AAP-19, D/M/WBE Schedule of Utilization;2. Form AAPHC-89, D/M/WBE Utilization Worksheet (NOTE: Form AAPHC-89 must beco-signed by both the Prime Contractor and the Subcontractor); and3. All of the information listed in Section F.
H. Bidder's Failure to Comply - The Department's acceptance of the Bidder's proposal isconditioned upon the Bidder's fulfillment of the requirements of this Section. If the Bidder fails tosubmit a complete utilization package as defined in Section G by the seventh calendar day after thebid opening and/or fails to attain the M/WBE utilization goals, and to satisfactorily document his/hergood faith efforts as defined in Section F above, the bid may be declared incomplete and the depositmay be subject to forfeiture pursuant to §103-02 of the Standard Specifications.
I. Minority/Women's Business Enterprise Officer - The Bidder shall designate aMinority/Women's Business Enterprise Officer who will have the responsibility to, and be capableof, effectively administering and promoting an active M/WBE Program, and who is assignedadequate authority to do so.
J. Conformance to M/WBE Schedule of Utilization - Following the award of the contract,the Contractor is required to enter into subcontracts or agreements with the M/WBEs identified onthe approved D/M/WBE Schedule of Utilization, for work of the kind and amount identified therein.The Engineer will monitor the work of the contract to ensure that the M/WBEs identified performthe work in accordance with the D/M/WBE Schedule of Utilization. Any direction by the Engineerto comply with the Schedule is a lawful direction under Article 8 of the contract. While suchdirection is not complied with, the Contractor shall not be entitled to have any estimate made for thepurpose of payment, nor shall any estimate be rendered on account of work done or materialfurnished.
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K. Revisions in M/WBE Utilization - If, after the award of the contract, a subcontract orpurchase order held by a M/WBE or joint venture involving a M/WBE is modified or terminated, theContractor shall immediately notify the Department of such modification or termination and thereasons therefor or an alternative subcontract or purchase order for a commensurate dollar amountfurnished by another M/WBE. Any change in M/WBE utilization must be approved by theDepartment through submission of a revised AAP-19 and an AAPHC-89/AAPHC-89-1 (Amended)signed by both parties. The Contractor must receive this approval prior to implementing any proposedchange. Failure by the Contractor to obtain approval could result in appropriate sanctions.
For purposes of this Section, a revision in M/WBE utilization is considered to be any of thefollowing modifications:
1. Reducing the dollar value of or eliminating the M/WBE's item(s) of work. In the event thatthis results in a shortfall in goal attainment, the Contractor will be required to make good faithefforts to backfill in accordance with Section F.2. Removing one M/WBE and substituting another M/WBE for the same item(s) of work.3. Increasing the dollar value of (an) item(s) of work or adding (a) new item(s) of work to aM/WBE already participating on the contract.4. Adding a M/WBE to the contract.
L. Monitoring Contractor Compliance. The Contractor will allow the Director of EODC andother authorized representatives of the Department to conduct periodic inspections of the Contractor'sM/WBE participation efforts during the performance of this contract. In order to determine whetherthe Contractor has complied with the requirements of this Section, the Commissioner may proceedby order to show cause, or attend a hearing before the Contract Review Unit, or may file a complaintwith the Division of Minority and Women's Business Development of the NYS Department ofEconomic Development pursuant to Section 316 of Article 15-A of the Executive Law, or may followany other lawful procedure upon due notice in writing to the Contractor. When the Contractor hasbeen found to have failed to meet the contract goals, to exert a good-faith effort, or otherwise failedto comply with this Section, the contract may be canceled, terminated, or suspended in whole or inpart in accordance with Article 11 of the contract and §40 of the Highway Law. Such other sanctionsmay be imposed and remedies invoked as provided under the authority of Article 15-A of theExecutive Law, Part 540 et seq. of Title 9 of NYCRR, or by rule, regulation, or order of theCommissioner or as otherwise provided by law.
M. Prompt Payment - Failure by the Contractor to pay any subcontractor within fifteen calendardays of receipt of payment from the Department for work performed that is accepted by theDepartment, in violation of Section 139-f of the State Finance Law, could result in the withholdingof future estimated payments by the Department. The Contractor shall submit reports on paymentsmade to subcontractors as required by the Department. If it is determined by the Department thata subcontractor has not received payment due and owing in accordance with Section 139-f of the StateFinance Law, the Department may direct the Prime Contractor to make such payment. Any suchdirection by the Department is a lawful direction under Article 8 of the contract. While suchdirection is not complied with, the Contractor shall not be entitled to have any estimate made for thepurpose of payment nor shall any estimate be rendered on account of work done.
N. Required Records - The Contractor shall keep records and documents for three years followingperformance of this contract to indicate compliance with this Section. These records and documents,or copies thereof, will be made available at reasonable times and places for inspection by anyauthorized representatives of the Department and will be submitted to the Department upon request,together with other compliance information which may be required.
O. Non-Discrimination - The Contractor shall not use the requirements of this Section todiscriminate against any qualified company or group of companies.
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P. Reporting Violations of Program Rules - The Contractor is responsible for ensuring that theM/WBE performs a commercially useful function on the contract as defined in Section E. If theContractor becomes aware of any violations of this section, the Contractor is required to promptlyreport the violations to the Engineer.
Q. Requests for Waiver - The Contractor may request a waiver of all or part of a contract'sM/WBE goals by submission of all the information required by Section 543.7 of Title 9 of NYCRRto EODC. The submission of such a request and any appeal of the Department's decision aregoverned by Part 540 of Subtitle N of Title 9 of NYCRR.
R. Contractor Agreement - The Contractor agrees as a condition of this contract to be bound bythe provisions of Section 316 of Article 15-A of the Executive Law.
102-22 DISADVANTAGED BUSINESS ENTERPRISE UTILIZATION FOR F.A. CONTRACTS.It is the policy of the United States and of the State of New York that Disadvantaged Business Enterprises(DBEs) shall have the maximum opportunity to participate in the performance of State contracts forconstruction. The parties to this contract shall take all necessary and reasonable steps in accordance withthe laws, rules and regulations cited in this section to ensure that DBEs have the maximum opportunityto compete for and perform contracts. The Department and its Contractors shall not discriminate on thebasis of race, color, national origin, or sex in the award and performance of NYSDOT contracts. Thispolicy shall be made a part of all subcontracts and agreements entered into as a result of this contract.
The Congress of the United States, to this end, has enacted the Surface Transportation AssistanceAct (“STAA”) of 1982, Pub. L. 97-424, §105(f), the Surface Transportation and Uniform RelocationAssistance Act of 1987, Pub. L 100-17, §106(c), the Intermodal Surface Transportation Efficiency Actof 1991 and Regulations have been promulgated under 49 CFR 23. New York State, to this end, hasenacted §85 of the Highway Law, §428 of the Transportation Law, and Chapter 1, Title 17 of the OfficialCompilation of Codes, Rules, and Regulations. The parties to this contract are required to comply withthese laws, rules and regulations and the following DBE Program requirements.
A. Eligibility of DBEs - Only those DBE firms that are certified by NYSDOT are eligible to beused for goal attainment on this contract. DBE certification is not an endorsement of the quality orperformance of the business but simply an acknowledgement of the firm's status as a DBE.
In the event that the apparent low Bidder, in good faith, proposes to use a firm that is listed as acertified DBE in the project proposal, and that firm is later found by the Department to be ineligibleor unable to perform, then the apparent low Bidder will be required to substitute another certifiedfirm of the kind needed to meet the goal, before award, at no additional cost to the Department.
B. Goal - The Department has established a utilization goal for DBEs which is expressed as apercentage of the total contract price. This goal is stated in the proposal and remains in effectthroughout the life of the contract. In executing the contract or bid documents the Bidder declaresthat he/she subscribes to the utilization goal and must meet or exceed the goal or demonstrate thathe/she could not meet it despite his/her best efforts. The contract goal is then considered to be atarget or a minimum figure to which the Contractor commits as part of his/her bidding for a Federal-aid project. When the contract is awarded with DBE participation that is less than the contract goal,the Prime Contractor is required to continue good faith efforts, as defined in Section F, throughoutthe life of the contract in order to increase the DBE participation to meet or exceed the contract goal.
C. Zero Percent Goal - For contracts which have a 0% (zero percent) goal, the Bidder agrees tomake good faith efforts to utilize certified DBEs for any subcontracts awarded by the Bidder inconnection with the contract.
D. Counting DBE Participation towards DBE Goals - DBE participation shall be countedtoward meeting the DBE goal in accordance with the following:
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1. Subcontracting. If a firm is determined to be an eligible DBE, as defined in Section A, thetotal DBE agreed amount of the items of work to be performed by the DBE is counted toward theapplicable DBE goal except as provided in paragraphs 2, 3 and 4 below.2. Joint Ventures. Joint ventures between certified DBE firms and non-DBE firms assubcontractors will be counted toward the DBE contract goal in proportion to the percentage ofownership and control of each firm within the joint venture, subject to approval by theDepartment of the joint venture agreement to be furnished by the Bidder before award of thecontract. The joint venture agreement must include a detailed breakdown of the following:
a. Contract responsibility of the DBE for specific contract items of work,b. Capital participation by the DBE,c. Specific equipment to be provided to the joint venture by the DBE,d. Specific responsibilities of the DBE in the control of the joint venture,e. Specific staffing and skills to be provided to the joint venture by the DBE, andf. Percentage distribution to the DBE of the projected profit or loss incurred by the joint
venture.
In addition to these requirements, the DBE joint venturer must perform a commercially usefulfunction as a DBE subcontractor as defined in Section E.
3. Suppliers (Regular Dealers), Manufacturers, and Fabricators. Count toward the DBE goalthe expenditures for materials and supplies obtained from DBE suppliers (regular dealers) andmanufacturers in the amount noted below. The DBE supplier or manufacturer must assume theactual and contractual responsibility for the provision of the materials and supplies.
a. Count the entire expenditure to a DBE manufacturer. A manufacturer is a firm thatoperates or maintains a factory or establishment that produces on the premises the materialsor supplies obtained by the Contractor.b. Count the entire expenditure to a DBE fabricator. A fabricator is a firm that substantiallyalters materials or supplies before resale.c. Count 60% (sixty percent) of the expenditure to a DBE supplier. A supplier is a firm thatowns, operates, or maintains a store, warehouse, or other establishment in which thematerials or supplies required for the performance of the contract are bought, kept in stock,and regularly sold to the public in the usual course of business. It is a firm that engages in,as its principal business, and in its own name, the purchase and sale of the products inquestion. One who deals in bulk items such as steel, cement, gravel, stone and petroleumproducts need not keep such products in stock, if it owns or operates distribution equipment.d. The Bidder must indicate in the form of an explanation on the AAPHC-89, DBEUtilization Worksheet, the item number(s) for the material to be supplied.
EXAMPLE:______________________________________________________________________________ITEM NUMBER NAME LESS THAN 100% AMOUNT
619.17 M Supply Temporary XX% $ VALUEConcrete Barrier
4. Trucking Services. Count toward the DBE goal the expenditure for trucking servicesprovided by certified DBEs in accordance with the following:
a. Count the pro-rated value of trucking services provided by trucks owned or leased on along-term basis by the DBE trucking firm that appears on the AAPHC-89. For purposes ofthis Section, a long-term lease is a lease of six (6) months or more. Also, trucks that areleased on a long-term basis are leased without an operator.
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b. Count the pro-rated value of trucking services provided by trucks hired or rented fromother certified DBE trucking firms by the DBE trucking firm that appears on the AAPHC-89.Hired or rented trucks may include operators.c. No credit will be received for the value of trucking services that are provided by trucksthat are not owned, leased on a long-term basis, hired or rented from certified DBE truckingfirms.
EXAMPLE:
Ten (10) trucks are needed to perform $50,000 of trucking services. The DBE who appearson the AAPHC-89 will provide two (2) self-owned trucks and three (3) trucks hired fromDBE trucking firms for a total of five (5) certified DBE trucks providing trucking services.The remaining five (5) trucks are not obtained from certified DBE trucking firms. In thissituation, 50% (fifty percent), or $25,000, can be counted toward the DBE goal.d. The Bidder must indicate in the form of an explanation on the AAPHC-89 the itemnumber(s) for which the trucking services are to be performed, the type of trucking serviceto be performed (on-site vs. off-site), and the corresponding dollar value for those services(per item).
EXAMPLE:___________________________________________________________________________ITEM NO. NAME LESS THAN 100% AMOUNT
403.11 M Off-site XX% $VALUETrucking Svc.For Item 403.11 M
e. The Bidder must provide before award, the calculations and any pertinent documentationthat support the dollar value of the proposed DBE trucking services. The Bidder must alsoprovide before award a list of all proposed DBE trucking firms to be used on the project andthe number of trucks to be provided by each proposed DBE trucking firm. f. On-Site Trucking. For purposes of this Section, on-site trucking is defined as: 1. Withinthe boundaries of the physical place where the construction will remain. 2. Off-site facilitiesthat are dedicated exclusively to the performance of the contract and are so located inproximity to the actual construction location that it would seem reasonable to include them.
Trucking services provided for on-site trucking are considered to be a subcontractingactivity. The DBE trucking firm that appears on the AAPHC-89 may not subcontract anyportion of their on-site trucking operations.g. Off-Site Trucking. For purposes of this Section, off-site trucking is defined as: 1.Outside of the boundaries of the physical place where the construction will remain. 2. Off-site facilities that were established by a commercial supplier or material supplier prior toaward of the project and used for multiple customers.
Trucking services provided for off-site trucking are not considered to be a subcontractingactivity; it is considered to be a service.h. The DBE trucking firm that appears on the AAPHC-89 must control the day-to-daytrucking operations on the project. The DBE is responsible for:
1. Negotiating and executing rental/leasing agreements;2. Hiring and firing the work force;3. Coordinating the daily trucking needs with the Prime Contractor;4. Scheduling and dispatching trucks.
5. The Bidder must explain in writing the scope of work to be performed by the DBE for allitems indicated as partial items on the AAPHC-89 at the time the low Bidder submits theUtilization Package.
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6. A DBE that holds a Department contract may not count its own utilization in the contracttoward the DBE contract goal.
E.Conditions of Participation - DBE participation will be counted toward meeting the DBEcontract goal, subject to all of the following conditions:
1. Commercially Useful Function. The Prime Contractor is responsible for ensuring that DBEsperforming work on the contract perform a commercially useful function. A DBE is consideredto perform a commercially useful function when it is responsible for the execution of a distinctelement of work on a contract and carries out his/her responsibilities by actually performing,managing, and supervising the work involved in accordance with normal industry practice (exceptwhere such practices are inconsistent with the DBE regulations). Regardless of whether anarrangement between the Contractor and the DBE represent standard industry practice, if thearrangement erodes the ownership, control or independence of the DBE or in any other way doesnot meet the commercially useful function requirement, the Contractor shall receive no credittoward the goal.2. Work Force. The DBE firm must employ a work force, (including administrative andclerical) separate and apart from that employed by the Prime Contractor, other subcontractorson the project, or their affiliates. This does not preclude the employment by the DBE of anindividual that has been previously employed by another firm involved in the contract, providedthat the individual was independently recruited by the DBE in accordance with customary industrypractice. The routine transfer of work crews from another employer to the DBE shall not beallowed.3. Supervision. All work performed by the DBE must be controlled and supervised by the DBEwithout duplication of supervisory personnel from the Prime Contractor or other subcontractors.This does not preclude routine communication between the supervisory personnel of the DBE andother supervisors necessary to coordinate the work of the contract.4. Equipment. DBE subcontractors may supplement their equipment by renting or leasingadditional equipment in accordance with customary industry practice. However, no more than50% of the equipment required to perform the work of the subcontractor may be obtained fromthe Prime Contractor, other subcontractors on the project, or their affiliates. If the DBE obtainsequipment from any of those sources, the Department shall obtain from the DBE documentationdemonstrating that similar equipment and terms could not be obtained at a lower cost from othercustomary sources of equipment. The required documentation shall include, but not be limitedto, copies of the rental or leasing agreements, and the names, addresses, and terms quoted byother sources of equipment.
F. Good Faith Efforts - To ensure that DBE firms are given the maximum practical opportunityto participate in the work of the contract, the Bidder must make good-faith efforts to obtain DBEparticipation in order to fulfill the DBE contract goal. The Bidder's demonstration of good-faithefforts must be at least as extensive as, but not limited to, the following:
1. Efforts to utilize the services of minority and women community organizations; minority andwomen contractors groups; local, State and Federal minority and women business assistanceoffices; and other organizations that provide assistance in the recruitment and placement ofDBEs.2. Attendance by a representative of the Bidder who is knowledgeable of the contract work atpre-bid, pre-award, and/or other meetings, if any, scheduled by the Department to inform DBEsof subcontracting and other opportunities for participation in a specific contract. At thesemeetings, the Bidder's representative will explain the required contract work and solicit theinterest of the DBE attendees in any specific portions of the work.3. Efforts to secure participation by certified DBE firms. Only DBEs certified by the NYSDOTshall be used to fulfill goals on federally funded projects.
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4. Written solicitation of DBEs. A written solicitation inquiry, using the form prescribed in thecontract proposal, and including a copy of the list of items and estimated quantities for thecontract and a copy of Form AAP-11, Solicitation Response, pre-addressed for return to theBidder, will be sent to all DBE firms and, when necessary, minority and women's businessassociations located within the NYSDOT regions when necessary in order to meet DBE goals.Notification must be made in a timely fashion such that the DBEs contacted have a reasonableperiod of time in which to respond. The Bidder's solicitation will cover certified DBEs listed inthe Department's contract proposal and in the Registry of Disadvantaged Business Enterprisesmaintained by the Office of Equal Opportunity Development and Compliance (EODC). Suchgeographic limits are not acceptable as good faith efforts for work typically subcontracted to non-DBE firms on a statewide basis, e.g., pavement markings, guide rail, etc. It will be mandatoryfor the Bidder to contact all DBEs who have expressed interest in the specific contract to theBidder and to document efforts taken to secure their participation in the contract and in any futurework.5. Efforts to select portions of the work proposed to be performed by DBEs in order to increasethe likelihood of achieving the stated contract goal. Where certified DBEs have expressedinterest to the Bidder in performing certain work that the Bidder normally performs with his/herown forces, and the contract goal has not otherwise been attained, the Bidder will be requiredto subcontract such work or portions of it in order to meet the goal.6. Efforts to negotiate with DBEs for specific subcontracts. Price alone will not be anacceptable basis for rejecting DBE bids, unless it can be shown that no reasonable price can beobtained from a DBE.7. Efforts to assist the DBEs contacted which needed assistance in obtaining bonding orinsurance required by the Bidder or the Department. Difficulties encountered by the DBE inobtaining bonding or insurance required by the Bidder will not be acceptable reasons for theBidder's failure to meet the contract goal.8. Providing interested DBEs with adequate information about the plans, specifications andrequirements of the contract.9. Record of solicitation effort. All Bidders must keep records of efforts to solicit and negotiatewith DBEs, using Form AAP-10, Solicitation Log, as a continuing record of pre- and post-lettingactivity. When submitting a D/M/WBE Schedule of Utilization (Form AAP-19) to theDepartment, the apparent low Bidder will attach the log, together with the supplementalinformation specified in the instructions for the AAP-10, as evidence of good-faith efforts. Suchsupplemental efforts must include at least the following:
a. All Solicitation Responses, Form AAP-11, returned to the Bidder by DBEs;b. All envelopes of solicitation inquires that were returned as undeliverable; andc. Any quotations submitted by DBEs that are not included in the D/M/WBE Schedule ofUtilization with an explanation for the Bidder's action in each case.
G. DBE Utilization Package - The Bidder shall submit a complete utilization package within seven(7) calendar days after the bid opening. The DBE utilization package consists of:
1. Form AAP-19, D/M/WBE Schedule of Utilization;2. Form AAPHC-89, D/M/WBE Utilization Worksheet (NOTE: Form AAPHC-89 must beco-signed by both the Prime Contractor and the Subcontractor); and3. All of the information listed in Section F.
H. Bidder's Failure to Comply - The Department's acceptance of the Bidder's proposal isconditioned upon the Bidder's fulfillment of the requirements of this Section. If the Bidder fails tosubmit a complete utilization package as defined in Section G by the seventh calendar day after thebid opening and/or fails to attain the DBE utilization goal, and to satisfactorily document his/her goodfaith efforts as defined in Section F above, the bid may be declared incomplete and the deposit maybe subject to forfeiture pursuant to §103-02 of the Standard Specifications.
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I. Disadvantaged Business Enterprise Officer - The Bidder shall designate a DisadvantagedBusiness Enterprise Officer who will have the responsibility to, and be capable of, effectivelyadministering and promoting an active DBE Program, and who is assigned adequate authority to doso.
J. Conformance to DBE Schedule of Utilization - Following the award of the contract, theContractor is required to enter into subcontracts or agreements with the DBEs identified on theapproved D/M/WBE Schedule of Utilization, for work of the kind and amount identified therein. TheEngineer will monitor the work of the contract to ensure that the DBEs identified perform the workin accordance with the D/M/WBE Schedule of Utilization. Any direction by the Engineer to complywith the Schedule is a lawful direction under Article 8 of the contract. While such direction is notcomplied with, the Contractor shall not be entitled to have any estimate made for the purpose ofpayment, nor shall any estimate be rendered on account of work done or material furnished.
K. Revisions in DBE Utilization - If, after the award of the contract, a subcontract or purchaseorder held by a DBE or joint venture involving a DBE is modified or terminated, the Contractor shallimmediately notify the Department of such modification or termination and the reasons therefor oran alternative subcontract or purchase order for a commensurate dollar amount furnished by anotherDBE. Any change in DBE utilization must be approved by the Department through submission of arevised AAP-19 and an AAPHC-89/AAPHC-89-1 (Amended) signed by both parties. The Contractormust receive this approval prior to implementing any proposed change. Failure by the Contractorto obtain approval could result in appropriate sanctions.
For purposes of this Section, a revision in DBE utilization is considered to be any of the followingmodifications:
1. Reducing the dollar value of or eliminating the DBE's item(s) of work. In the event that thisresults in a shortfall in goal attainment, the Contractor will be required to make good faith effortsto backfill in accordance with Section F.2. Removing one DBE and substituting another DBE for the same item(s) of work.3. Increasing the dollar value of (an) item(s) of work or adding (a) new item(s) of work to aDBE already participating on the contract.4. Adding a DBE to the contract.
L. Monitoring Contractor Compliance - The Contractor will allow the Director of EODC andother authorized representatives of the Department to conduct periodic inspections of the Contractor'sDBE participation efforts during the performance of this contract. In order to determine whether theContractor has complied with the requirements of this Section, the Commissioner may proceed byorder to show cause, or attend a hearing before the Contract Review Unit, or may follow any otherlawful procedure upon due notice in writing to the Contractor. When the Contractor has been foundto have failed to meet the contract goals, to exert a good-faith effort, or otherwise failed to complywith this Section, the contract may be canceled, terminated, or suspended in whole or in part inaccordance with Article 11 of the contract and §40 of the Highway Law; and the Contractor may bereferred to the USDOT for possible suspension or debarment as provided in 49 CFR 29 and suchother sanctions as may be imposed and remedies invoked as provided under the authority of 49 CFR23, or by rule, regulation, or order of the Commissioner or as otherwise provided by law.
M. Prompt Payment - Failure by the Contractor to pay any subcontractor within fifteen calendardays of receipt of payment from the Department for work performed that is accepted by theDepartment, in violation of Section 139-f of the State Finance Law, could result in the withholdingof future estimated payments by the Department. The Contractor shall submit reports on paymentsmade to subcontractors as required by the Department. If it is determined by the Department thata subcontractor has not received payment due and owing in accordance with Section 139-f of the StateFinance Law, the Department may direct the Prime Contractor to make such payment. Any suchdirection by the Department is a lawful direction under Article 8 of the contract. While such
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direction is not complied with, the Contractor shall not be entitled to have any estimate made for thepurpose of payment nor shall any estimate be rendered on account of work done.
N. Required Records - The Contractor shall keep records and documents for three years followingperformance of this contract to indicate compliance with this Section. These records and documents,or copies thereof, will be made available at reasonable times and places for inspection by anyauthorized representatives of the Department and will be submitted to the Department upon request,together with other compliance information which may be required.
O. Non-Discrimination - The Contractor shall not use the requirements of this Section todiscriminate against any qualified company or group of companies.
P. Reporting Violations of Program Rules - The Contractor is responsible for ensuring thatthe DBE performs a commercially useful function on the contract as defined in Section E. If theContractor becomes aware of any violations of this section, the Contractor is required to promptlyreport the violations to the Engineer.
102-23 STATE AND LOCAL SALES TAX EXEMPTION. The Contractor’s attention is directed tothe changes made in Section 1115 of the Tax Law by Chapters 513 and 514 of the Laws of 1974. Inconnection with capital improvement contracts entered into on or after September 1, 1974, all tangiblepersonal property which will become an integral component of a structure, building or real property ofthe State, or any of its political subdivisions, is exempt from State and local retail sales tax andcompensating use tax.
SECTION 103 - AWARD AND EXECUTION OF CONTRACT
103-01 AWARD OF CONTRACT. Award of contract will be made only to the lowest responsiblebidder as will best promote the public interest as provided by §38 of the Highway Law. The New YorkState Department of Transportation reserves the right to reject any or all proposals, or, pursuant to §38of the Highway Law, to award to other than the low bidder, to waive minor informalities, to advertisefor new proposals, or to proceed to do the work otherwise, if, in its opinion, the best interest of the Statewill thereby be promoted.
If requested by the State Department of Transportation, the bidder must present evidence ofownership, corporate structure, ability and financial standing, as well as a statement as to equipment.
103-02 EXECUTION OF CONTRACT. The person or persons whose proposal is accepted will berequired to execute the contract and to comply in all respects with the statutory provisions relating to thecontract within ten days of the date of the delivery of the contract form by the Commissioner ofTransportation. In case of failure or refusal on the part of the bidder to deliver the duly executed contractto the Commissioner of Transportation within the ten day period herein mentioned, the amount of thedeposit made may be forfeited and paid to the State of New York, Department of Transportation.
The Contractor agrees that it will conduct its operations in compliance with all the laws andregulations of the United States, State of New York and Public Authorities and the ordinances of any city,village, town or county and the lawful direction of the officers, agents or representatives of the UnitedStates, the State of New York, the Public Authorities or of said city, village, town or county. All costsdue to compliance with the above described laws, regulations, and ordinances shall be included in theprices bid for contract items unless otherwise provided for in the contract.
103-03 RIGHT TO SUSPEND WORK AND CANCEL CONTRACT. The specifications of 102-17,Sample Form of Agreement, Article 11 shall apply.
103-04 BONDS . The Contractor shall procure and deliver bonds to the State and maintain them at itsown expense and without expense to the State until final acceptance by the State of the work covered bythis contract.
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A. Faithful Performance Bond. A bond in the form prescribed by the Commissioner withsufficient sureties, approved by the said Commissioner, that the Contractor will perform the workin accordance with the terms of the contract and with the plans and specifications, and that it willcommence and complete the work within the time prescribed in the contract, and that it will provideagainst direct or indirect damages that shall be suffered or claimed on account of such constructionor improvement during the time thereof, and until the contract is accepted.
B. Labor And Material Bond. A bond guaranteeing prompt payment of monies due all personssupplying the Contractor or subcontractor with labor and materials employed and used in carryingout the contract, which bond shall inure to the benefit of the persons supplying such labor andmaterials.
C. Amount of Bonds. The amount of the Faithful Performance Bond and Labor and MaterialBond shall be 100% of the amount of the contract price.
SECTION 104 - SCOPE OF WORK
104-01 WORK REQUIRED. Under the contract the Contractor shall be required to do all workenumerated under the different items of the contract and in addition to this shall be required to protectall adjoining properties, all Utilities and existing highway facilities within the Right-of-Way and to repairor replace any such properties, Utilities and facilities damaged or destroyed by it or its employeesthrough the construction operations, both within and adjacent to the Right-of-Way.
The Contractor’s attention is directed to the fact that during the life of this contract the owners andoperators of Utilities may make changes in their facilities. These changes may be made by the Utilityemployees or by contract within the limits of or adjacent to this contract and may be both temporary andpermanent.
The Contractor shall be responsible for the coordination of the work of its various subcontractors.Their respective operation shall be arranged and conducted so that delays will be avoided. Where thework of the Contractor, or subcontractors, overlaps or dovetails with that of other Contractors, materialsshall be delivered and operations conducted so as to carry on the work continuously in an efficient andworkmanlike manner.
Delays or oversights on the part of the Contractor or subcontractors or Utility owners in getting anyor all of their work done in the proper way thereby requiring the cutting, removing and replacing of workalready in place, shall not be the basis for a claim of extra compensation. Such work will be performedat the cost and expense of the offending Contractor, subcontractor or Utility owners.
Reference is made to Section 11-102 of the General Obligations Law which concerns the interferenceand/or delay of the Contractor’s progress of work by utilities.
104-02 ALTERATIONS AND OMISSIONS. The specifications of 102-17 Sample Form ofAgreement, Article 5, shall apply.
104-03 CONTINGENCIES, EXTRA WORK, DEDUCTIONS. Whenever the Commissioner ofTransportation determines that from any unforeseen cause the terms of any contract should be alteredto provide for changes, contingencies or extra work, he/she may issue an order on contract therefor tothe Contractor who shall forthwith proceed with the performance of the work and the furnishing of thematerials and equipment necessary for its accomplishment in accordance with the pertinentspecifications. No instructions, either written or verbal from any Department employee or agent,shall be construed as an order for changes until receipt by the Contractor of a written notification that anorder on contract has been approved by the Commissioner, or his/her designee.
Payment for any unforeseen work shall be made only if the contractor complies or has complied withall of the provisions of §105-14, Dispute Resolution and Disputed Work Provisions, and §109-05, Extraand Force Account Work, Dispute Compensation and Recordkeeping and §109-16 Differing SiteConditions, Suspensions of Work, Significant Changes in the Character of the Work, as applicable.
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104-04 CLOSING OF HIGHWAY. The legal closing of a highway to public travel in the mannerprovided by 104 of the Highway Law will be done by the Commissioner of Transportation or by theCounty Superintendent of Highways when requested by the Department. All highways are not so closedduring highway construction operations.
When a highway is legally closed and public travel diverted therefrom adequate warning, danger anddirection signs and lights shall be erected and maintained by the Contractor to properly protect and directpublic travel by day and by night. Suitable barricades shall also be erected at the ends of such closedsections of highways and large signs displayed indicating such closure. All signs, barricades and othertraffic control devices used shall conform to the New York State Manual of Uniform Traffic ControlDevices.
104-05 RESTRICTED USE OF HIGHWAY. With the award of a contract the Commissioner ofTransportation will, unless otherwise specified, designate the section of highway under contract a“Restricted Highway” pursuant to Section 104A of the Highway Law and Section 1625 of the Vehicle andTraffic Law. Pursuant to these legal sections, the Commissioner has the authority to (1) establishmaximum and minimum speed limits at which vehicles may proceed along any such Restricted Highway;(2) establish weight and dimension limits of vehicles; (3) regulate the use of such Restricted Highway bypedestrians, equestrians, and animals; (4) regulate parking, standing, stopping, and backing of vehicles;(5) control persons and equipment engaged in work on such highway. When used on such RestrictedHighways, all traffic control devices shall be considered as official traffic control devices and shallconform to the manual and specifications for a uniform system of traffic control devices adopted by theDepartment of Transportation.
The Commissioner will therefore cause signs indicating such restrictions to be placed at such pointsas he/she deems necessary for the safe use of the Restricted Highway. The traveling public andContractor must observe and comply with these restrictions, as posted, except that the Contractor maybe allowed greater latitude with respect to size and weight of construction equipment. The size and weightof construction equipment used within the contract limits will be limited to that which is suitable andpractical for the operation at hand so as not to injure or cause damage to the work that is being done orto that portion of the old highway that is to be retained as part of the completed contract. The RegionalDirector’s determination shall control. The Contractor may therefore utilize such equipment which doesnot exceed the legal weights outlined in 385 of the Vehicle and Traffic Law without specific approval.Loads in excess of the legal weights will not be permitted on any structure, on any new pavement, or onany resurfacing contract, except as provided under subsection 105-12, Construction Equipment.
104-06 CLEANING UP. All work shall be neatly cleaned up upon completion according to theEngineer’s directions, and be left in a neat and orderly condition.
Any salvaged material not specified to be disposed of otherwise, shall become the property of theContractor and removed from the site.
104-07 METHODS AND EQUIPMENT. Where particular methods or equipment are specificallyrequired in these specifications, the Contractor may apply in writing to the Regional Director to usealternate methods and equipment to provide the same results. Such alternates may be used only afterfavorable recommendation by the Regional Director and the written approval of the D.C.E.C. When, inthe opinion of the Regional Director satisfactory results are not being obtained using the Contractor’salternate methods and equipment the methods and/or equipment shall be immediately modified to producesatisfactory results.
104-08 WARRANTIES AND GUARANTEES. The Contractor shall provide to the State of NewYork, Department of Transportation or the authority having jurisdiction of the facility:
1. Any manufacturer’s warranties and guarantees normally given as customary trade practice; and,
2. For contracts involving the furnishing and/or installing of electrical and mechanical equipment, theContractor, in addition to the requirements in (1) above, agrees to guarantee the satisfactory in service
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operation of mechanical and electrical equipment and related components for a period of 6 monthsfollowing contract acceptance, at no cost to the State for either parts or labor.
The requirements of this section do not apply where the mechanical and electrical equipment isfurnished by the State.
104-09 RETENTION OF RECORDS. The Contractor shall retain all records for the balance of thecalendar year in which they were made and for six (6) additional years thereafter. Required records shallinclude all accounts, papers, maps, photographs, or other documentary materials, regardless of physicalform or characteristics, made or received by the Contractor in connection with the contract. Legiblecopies including microfilm copies, are acceptable, provided they are so arranged, identified, and indexedthat any individual document, or component of the records, can be located with reasonable facility.
SECTION 105 - CONTROL OF WORK
105-01 STOPPING WORK. The Engineer may stop by written order any work or any part of the workunder the contract if the methods or conditions are such that unsatisfactory work might result, or ifimproper material or procedure is being used or if the Contractor fails to comply with any contractrequirement or with any provision of the contract specifications, proposal or contract plans or with anyState or Federal law or regulation or the conditions of the project are considered to be sufficiently deficientas to seriously affect the safety of the public or the persons employed for the construction of the project,or major non-conformance with the maintenance and protection of traffic provisions in the contract iscausing serious disruptions to traffic operations. The Contractor shall not be entitled to any additionalmonetary compensation for such a work stoppage.
105-02 ORDERS TO FOREMAN . Whenever the Contractor or its superintendent is not present on anypart of the work where it may be desired to give directions, orders will be given by the Engineer or his/herrepresentative and shall be received and obeyed by the Foreman who may have charge of the particularwork in reference to which the orders are given. All Foremen shall speak English.
105-03 ACCURACY OF PLANS AND SPECIFICATIONS. The detail plans and specifications forthe contract have been prepared with care and are intended to show as clearly as is practicable the workrequired to be done. The Contractor must realize, however, that construction details can not always beaccurately anticipated and that in executing the work, field conditions may require reasonablemodifications in the details of plans and quantities of work involved. Work under all items in the contractmust be carried out to meet these field conditions to the satisfaction of the Engineer and in accordance withhis/her instructions and the contract specifications.
The Contractor shall take no advantage of any apparent error or omission in the plans or specifications.In the event the Contractor discovers an error or omission in the plans or specifications, it shallimmediately notify the Engineer. The Engineer will then make such corrections and interpretations as maybe deemed necessary for fulfilling the intent of the plans and specifications.
105-04 CONFORMITY WITH PLANS AND SPECIFICATIONS. All work performed and allmaterials furnished shall be in reasonably close conformity with the lines, grades, cross sections,dimensions and materials requirements, including tolerances, shown on the plans or indicated in thespecifications.
Plan dimensions and contract specification values are to be considered as the target value to be strivedfor and complied with as the design value from which any deviations are allowed. It is the intent of thespecifications that the materials and work quality shall be uniform in character and shall conform as nearlyas realistically possible to the prescribed target value or to the middle portion of the tolerance range. Thepurpose of the tolerance range is to accommodate occasional minor variations from the median zone thatare unavoidable for practical reasons. When a maximum or minimum value is specified, the productionand processing of the material and the performance of the work shall be so controlled that material orwork will not be preponderately of borderline quality or dimension.
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In the event the Engineer finds the materials or the finished product in which the materials are usednot within reasonably close conformity with the plans and specifications but that reasonably acceptablework has been produced, he/she shall then make a determination if the work shall be accepted and remainin place. In this event, the Engineer will document the basis of acceptance by contract modification whichwill provide for an appropriate adjustment in the contract price for such work or materials as he/shedeems necessary to conform to his/her determination based on engineering judgment.
In the event the Engineer finds the materials or the finished product in which the materials are usedor the work performed are not in reasonably close conformity with the plans and specifications and haveresulted in an inferior or unsatisfactory product, the work or materials shall be removed and replaced orotherwise corrected by and at the expense of the Contractor.
All traffic control devices (signs, signals, markings and devices placed by the authority of a publicbody or official having jurisdiction for the purpose of regulating, warning or guiding traffic) shall be inconformity with the edition of the New York State Manual of Uniform Traffic Control Devices which iscurrent on the date of advertisement for bids.
105-05 PROJECT RECORDS. The Engineer-in-Charge is required to keep his/her project records inaccordance with the Manual of Uniform Record Keeping (MURK) in force at the time the project isstarted. Such changes as are made in subsequent revisions of the Manual shall be incorporated in theproject procedures and records unless authorized to the contrary in writing by the D.C.E.C. TheContractor is invited to review MURK with the Engineer-in-Charge if he/she so desires. In severalinstances (such as Force Account work, application for approval of subcontractors, etc.) the Contractorshall furnish such data and information on the forms as set up in MURK. The Engineer in Charge willfurnish the appropriate forms.
105-06 INTERPRETATION OF PLANS. In case of any difference in the interpretation of the plans,specifications or maps, or between them, the matter must be immediately submitted to the Commissionerof Transportation, who shall adjust the same, and his/her decision in relation thereto shall be final andconclusive.
105-07 TERMINATION CLAUSE. The Commissioner may, by written notice, terminate the contractor any portion thereof after determining that for reasons beyond either Department or Contractor controlit is not feasible to proceed with or complete the work originally contracted for, and that termination wouldtherefore be in the public interest. Such reasons for termination may include, but need not be necessarilylimited to, executive orders of the President relating the prosecution of war or national defense, nationalemergency which creates a serious shortage of materials, orders from duly constituted authorities relatingto energy conservation, and restraining orders or injunctions obtained by third-party citizen action resultingfrom national or local laws or regulations, or where the issuance of such order or injunction is primarilycaused by acts or omissions of persons or agencies other than the Contractor, or where the orderlyprogression of a project is interfered with or delayed by acts or omissions of persons or agencies otherthan the Contractor. The Contractor specifically understands that the issuance of such notice by theCommissioner shall be conclusive as to its necessity.
When the contract, or any portion thereof is terminated, for any of the above mentioned reasons,before completion of all items of work in the contract, payment will be made for the actual numbers ofunits or items of work completed at the contract unit price, or as mutually agreed for items of workpartially completed, but no claim for loss of anticipated profits on uncompleted work shall be made by theContractor nor shall the State of New York be liable for the loss of anticipated profits for suchuncompleted work.
In such cases of termination, reimbursement for organization of the work (when not otherwiseincluded in the contract) and moving equipment to and from the job will be considered where the volumeof work completed is too small to compensate the Contractor for these expenses under the contract unitprices, the intent being that an equitable settlement will be made with the Contractor.
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Acceptable materials, obtained by the Contractor for the work, that have been inspected, tested andaccepted by the Engineer, and that are not incorporated in the work, shall be returned to the supplier ormanufacturer whenever it is possible to do so at nominal or no cost. Where the Contractor returns suchmaterials to its supplier or manufacturer, the State will pay the Contractor the actual documented costsconnected with returning such materials to the extent such costs are reasonable as determined by theDepartment. In the event the Contractor is unable to return such material at reasonable or no cost, andprovides documentation satisfactory to the Department that such material can not be economicallyreturned, the State shall be responsible for all such material and shall either direct the manner ofdisposition or purchase such material from the Contractor at actual cost as shown by receipted bills andactual cost records to the extent such costs are reasonable as determined by the Department, at such pointsof delivery as may be designated by the Engineer.
Termination of a contract or a portion thereof shall not relieve the Contractor of its responsibilities forthe completed work, nor shall it relieve its surety of its obligation for and concerning any just claimsarising out of the work performed.
105-08 COOPERATION BY THE CONTRACTOR. The Contractor shall give its constant personalattention to the work while it is in progress or it shall place it in charge of a competent and reliable Englishspeaking superintendent, who shall have authority to act for the Contractor and who shall be acceptableto the Engineer. The Contractor shall, at all times, employ labor and equipment which shall be sufficientto prosecute the several classes of work to full completion in the manner and time specified. All workersmust have sufficient skill and experience to properly perform the work assigned them. All workersengaged on special or skilled work shall have had sufficient experience in such work to properly andsatisfactorily perform it and operate the equipment involved. Any person employed by the Contractorwhom the Engineer may deem incompetent or unfit to perform the work shall be at once discharged, andshall not be again employed. In case of a disagreement with the Contractor regarding the discharge of suchemployees, the matter may be reviewed by the Commissioner.
105-09 WORK AFFECTING RAILROADS
A. Supervision. All work on any project affecting a railroad company’s property, right-of-way facil-ities, including temporary track detour, shall be carried out under the joint supervision of theDepartment of Transportation and the railroad company or companies in a manner satisfactory to boththese agencies.
B. Railroad Approval. The Contractor shall obtain the written approval of the Chief Engineer of therailroad company or companies affected in respect to the details and methods to be employed inconstructing any structures, track detours, falsework, removal of structures, allowable trackclearances, and any or all other details that may in any manner affect the operation or maintenanceof any or all railroad facilities. Equipment used for the erection, or removal of structures over railroadfacilities, shall have a minimum lifting capacity of one hundred-fifty percent (150%) of the lift weight(Operational capacity limited to sixty-six and two-thirds (662/3%) of the tipping load). The requirementthat written approval shall be obtained from the Chief Engineer, of the railroad company, shall becomplied with before the Contractor begins actual construction work. The Contractor shall include inits unit prices bid for this work all the costs of these requirements including any expense occasionedby delay or interruption of its work by reason of the operation or maintenance of the railroad facilities.Approval by the Chief Engineer of the railroad company or companies affected does not absolve theContractor from any liability resulting from its contractual operations.
C. Railroad Clearances. No temporary bridge, falsework, staging or obstructions shall be erectedover the track or tracks where the vertical underclearance is less than 22 feet (6706 mm) over top ofrail until the existing bridge warnings have been relocated or new or temporary bridge warnings areinstalled by the railroad company or companies affected and are in service.
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The Contractor shall so conduct its work and handle its equipment that no part of any material orequipment shall foul an operated track or wire lines without written permission of the Chief Engineerof the railroad company or companies affected. When the Contractor desires to foul an operated trackit must give the Chief Engineer of the railroad company or companies affected at least eight daysnotice, in writing, of its intentions so that the proper protection can be arranged. An operated trackis fouled when any object is brought closer than the clearances set forth by the railroad company.Absolute minimum temporary underclearance above top of high rail shall be as indicated on the planor in the proposal. Cranes, shovels and any other equipment shall be considered to be fouling the trackwhen located in such a position that failure of same with or without load brings the equipment withinthe fouling limit. A power line wire is fouled when any object is brought to a point less than six feet(1829 mm) therefrom.
D. Railroad Employees. When, in the opinion of the Chief Engineer of the railroad company orcompanies the Contractor’s normal operations in progressing its contract are such that an operatedtrack is or might be fouled or railroad traffic endangered, the railroad company or companies willemploy protective labor, when found necessary for railroad operations. Unless an item for railroadprotection is included in the contract, payment for the services described above shall be made to therailroad company directly by the State pursuant to the terms of a State-Railroad agreement negotiatedfor the contract. When an item for railroad protection is included in the contract, the Contractor shallpay for such services.
All services for protective labor and similar protective service occasioned by the operation of theContractor, except as noted in the preceding paragraph shall be at the sole expense of the Contractorand the Contractor shall include all such costs in its unit bid prices for such protection.
The Contractor shall, at its own expense, carry compensation and other insurance for protectivelabor furnished by the railroad company or companies.
It is agreed that the furnishing of any protective labor shall not relieve the Contractor from anyliability of payment for any damage caused by its operations.
E. Foundations. Foundations may be extended or lowered if deemed necessary by the D.C.E.S. ofthe Department of Transportation and the Chief Engineer of the railroad company or companiesaffected only if such change is ordered by the D.C.E.S. of the Department of Transportation. Any andall increases in quantities caused by changes of this character will be paid for at the unit prices bid forthe respective items involved.
F. Contractor’s Private Grade Crossing. If the Contractor elects, and the railroad company orcompanies approve, to have installed for its own use, a private grade crossing at the site of the work,it shall make a formal request to the railroad company or companies for such a crossing. After it hasentered into an agreement with the railroad company or companies pertaining to the size and type ofcrossing, the payment of the cost for installing, and removing the crossing, the obtaining of thenecessary insurance for the protection of the railroad company or companies, and the agreement asto the required protection to railroad traffic when the crossing is in use, the railroad company orcompanies will install and remove the temporary crossing at the sole expense of the Contractor.
G. Sidetrack Facilities. When sidetrack facilities are required by the Contractor, it shall at its solecost and expense, make the necessary arrangements for the use of existing sidings, tracks not inservice or the construction of new sidings. It shall, at its sole cost and expense, restore any and allexisting sidings and tracks used for sidetrack facilities to the condition existing prior to its or their useby the Contractor. The construction location and use of all sidetrack facilities are to be subject to theapproval of the Chief Engineer of the railroad company affected.
It shall be understood that the railroad company may move the Contractor’s cars, placed onexisting sidings, at any time, to permit the placing of cars for said railroad company’s business.
When any turnouts from the main tracks are approved by the railroad company such turnouts willbe furnished, installed and removed by the railroad company at the expense of the Contractor. Any
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signal work and derails necessary for sidetrack facilities will be furnished, installed and removed bythe railroad company at the Contractor’s expense.
When available from railroad stock, the railroad company will furnish on the request of the Con-tractor, at its current prices plus its usual overhead for labor and materials, such materials as maybe required for the restoring of existing sidings used for sidetrack facilities and for the constructionof additional sidetracks.
H. Use of Explosives. Blasting shall be conducted in such a manner as not to endanger the publicor obstruct highways or endanger facilities or operation of the railroad. The Contractor shall furnish,while blasting, at its own cost and expense, watchpersons and other protection necessary to protectthe public and railroad.
The Contractor’s attention is directed to §107-05, Safety and Health Requirements, with regardto blasting.
I. Railroad Use of Completed Work. The Contractor agrees that the railroad company affectedmay, prior to the completion of the work to be performed under contract and the acceptance thereof,enter upon and use any portion of said work without any compensation whatever to the Contractor forsuch use, and without any compensation or payment whatever to the Contractor for any delay in thework caused by such use. The taking possession and use shall not be deemed an acceptance of thework so taken and used or any part thereof.
J. Protection of Railroad Service and Facilities. The Contractor shall take special care andvigilance to avoid injury to the trains, tracks or other facilities of the railroad company and shallconduct its work so as not to interfere with the movement of trains or other operations of the railroadcompany. Whenever work may affect the safety or movement of trains, the method of doing the workshall first be submitted to the Chief Engineer of the railroad company affected for his/her approval,and no work affecting such safety or movement of trains shall be commenced or prosecuted untilwritten approval of the Chief Engineer of the railroad company is received. It is understood that theapproval of the Chief Engineer of the railroad will not release the Contractor from any responsibilityfor any damages to the railroad company caused by the acts of the Contractor or its employees andsubcontractors. If, during the carrying out of the contract work, the trains, tracks or other facilitiesof the railroad company are endangered, the Contractor shall immediately do such work as directedby the Engineer to restore safety and, upon failure of the Contractor to carry out such ordersimmediately, the railroad company may, with the approval of the Engineer, take whatever steps arenecessary to restore safe conditions. The cost and expense to the railroad company of restoring safeconditions or of any damage to the railroad company’s trains, tracks or other facilities caused by theContractor’s operations shall, when approved by the Engineer, be considered a charge against theContractor and shall be paid for by it, or upon its failure or refusal to pay such charge within areasonable time after the railroad company submits the bill to it, the amount thereof may be deductedfrom any monies due or that may become due to it under its contract, and any such sum so deductedmay be paid to the railroad company after an audit by the State of the items of such cost and expense.
In performing construction operations both on and off railroad right-of-way areas, the Contractorshall prevent the fouling of railroad track ballast with earth, mud, silt, or other foreign matter. Toprevent fouling of the ballast, it may be necessary for the Contractor to construct temporary earthdikes, sheeting or tie cribbing or provide other precautionary measures that are required.
Where, in the opinion of the railroad company, demolition work, concreting or hauling along oracross tracks will result in ballast becoming fouled, the Contractor shall take preventive measures toprotect the entire ballast section by nailing canvas, plywood or similar material to the ties in the entirearea to be affected. The protective material shall remain in place until there is no further possibilityof fouling the ballast and then removed by the Contractor.
The work required to protect the railroad track ballast shall be performed by and at the expenseof the Contractor and under the supervision of and to the satisfaction of the Chief Engineer of the
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railroad company or its authorized representative. The railroad company will assume no responsibilityfor the adequacy of the work.
In the event that the railroad track ballast does become fouled after the aforementioned protectivemeasures are taken, the railroad company, with its own forces, shall remove and replace the fouledballast with clean ballast. The charges for this work will be billed by the railroad company against theContractor.
K. Coordination of Work. The Contractor shall be responsible for the coordination of the workof its various subcontractors. The Contractor shall coordinate with the railroad company or railroadcompanies in carrying out railroad force account work. When the work of the Contractor orsubcontractor dovetails with the railroad force account work, the materials shall be delivered and theoperations conducted so as to carry on the work continuously in an efficient and skillful order. Delaysor oversight on the part of the Contractor or subcontractors in getting any or all of their work done inthe proper way, thereby causing cutting, removing and replacing of work already in place shall notbe the basis for a claim for extra compensation. Such work shall be done at the cost and expense ofthe offending Contractor or subcontractor.
L. Railroad Equipment. It is agreed that if the Contractor elects to use work trains or any railroadequipment which operates on the tracks of the railroad company, the operation of such trains andequipment is subject to any requirements determined upon by the Chief Engineer of the railroadcompany or companies affected. It is understood that-the cost of the services of any railroademployees required by the railroad company to operate such trains or equipment is to be paid by theContractor. This shall include the cost of necessary flagmen.
M. Operation of Railroad. The Contractor shall make every possible effort to reduce to aminimum the length of time that railroad company will have to operate over any track detour, and tothis end it shall continue full operation throughout the winter months, if directed by the D.C.E.S. onany and all works necessary to permit the railroad company to restore its tracks in their permanentlocation as quickly as possible.
The Contractor shall conduct its work so that schedule speed can be maintained by the railroad atall times.
N. Telephone, Telegraph and Signals. The cost of all changes in telegraph, telephone and signallines made necessary to clear the site for the structures, shall be charged to the project. The cost ofall changes in telegraph, telephone and signal lines made for the convenience of the Contractor shallbe paid for by the Contractor as part of its construction costs.
105-10 STAKEOUT. The Contractor shall furnish, free of charge, all stakes, templates, standardsubgrade testers, straight edges, approved paint and marking devices, and such temporary structures asmay be necessary for marking and maintaining points and lines for the work, and is to give the Engineersuch facilities, labor and materials for giving the lines and points as he/she may require.
Unless otherwise provided in the proposal, the Contractor will be initially given line and gradethroughout the entire length of the contract by properly marked offset or reference stakes placed by theEngineer. It shall carefully preserve all such stakes and marks. The Contractor shall keep the Engineerinformed a reasonable time in advance of the time and place it intends to do work, so that line and grademay be furnished and necessary measurements made for records and payment. The Contractor shallbrush-out survey lines as directed by the Engineer, in advance of all survey work in order to permitaccurate and unimpeded work by the survey parties.
When the work is ready for fine grading, the Engineer will set accurate grade on stakes or pins locatedin the roadway, furnished and driven by the Contractor. These pins shall be carefully preserved by theContractor.
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All property lines and survey monuments which may be disturbed during construction shall be properlytied to fixed points before being disturbed, and properly re-set by the Contractor upon the completion ofthe work as directed by the Engineer.
105-11 INSPECTION
A. Inspection. Department Inspectors shall be authorized to inspect all work done and materialsfurnished, including all or any part of the work and the preparation, fabrication or manufacture of thematerials to be used. Inspection shall include, but not be limited to the Contractor's compliance withapplicable safety requirements set forth in §107-05 and all aspects of Section 619. The Inspector orinspecting agent is not authorized to either alter or waive the provisions of these specifications or thecontract, or to issue instructions contrary to the plans and specifications, without written approval ofthe Engineer, or act as foreman for the Contractor. However, he/she shall have the authority to rejectunacceptable work or materials.
The Department inspections and tests are for the sole benefit of the Department and do not (1)relieve the Contractor of the responsibility for providing adequate quality control measures; (2) relievethe Contractor of responsibility for damage to or loss of the material before acceptance; (3) constituteor imply acceptance; or (4) affect the continuing rights of the Department after acceptance of thecompleted work under Article 9 of the contract.
B. Inspection of Work. All materials and each part or detail of the work shall be subject toinspection by the Inspector and the Engineer. The Engineer and the Inspector shall be allowed fullwork access and shall be furnished with necessary information and assistance by the Contractor tomake a complete and detailed inspection.
C. Removal of Unacceptable and Unauthorized Work. All work which does not conform tothe requirements of the contract shall be considered unacceptable unless otherwise determinedacceptable under the provisions in §105-04, Conformity with Plans and Specifications.
Whenever the Regional Director shall consider it necessary to remove any portion of the workexecuted under this contract for inspection or for any other purpose, no payment shall be made forsuch removal or for replacement of the work to satisfactory condition in case such inspection showsthat the work was not constructed in accordance with the terms of the contract; nor shall payment bemade for the removal or replacement of any work which may itself be satisfactory, but the removalof which is necessary for the replacement of unsatisfactory work. However, if such inspection showsthat the work was constructed in accordance with the terms of the contract, payment shall be madeto the Contractor for such removal and subsequent replacement at a fair and reasonable price, arrivedat through an order on contract for the work performed. No payment shall be made in such removaland replacement situations if work was done or materials furnished without inspection by an authorizedDepartment representative.
The above paragraph shall not apply to concrete foundation for pavement or cement concretepavement rejected as a result of core tests. Work so rejected shall be removed and replaced at theexpense of the Contractor.
All work shall be in first-class and satisfactory condition at the time of acceptance of the contract.Any work done or materials used without inspection by an authorized Department representative
may be ordered removed and replaced at the Contractor's expense. Unacceptable work, whether caused by poor work, defective materials, damage through
carelessness or any other cause found to exist prior to the final acceptance of the work, shall beremoved immediately and replaced in an acceptable manner irrespective of the presence of, or lackof, a Department Inspector or representative. This clause shall have full effect regardless of the factthat the defective work may have been done or the defective materials used with the full knowledgeof the Inspector. The fact that the Inspector or Engineer may have previously overlooked suchdefective work shall not constitute an acceptance of any part of it.
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105-12 CONSTRUCTION EQUIPMENT. It is the intent of these specifications to permit the use of themost efficient equipment that is consistent with conditions at the time of use. It is however anticipated thatseasonal or weather conditions combined with the nature of the terrain will often require the use of lighterand smaller equipment than might be used under optimum conditions.
Construction equipment having gross weights or axle loadings in excess of those allowed by Section385 of the Vehicle and Traffic Law (or Title 23 of the United States Code, Section 127 for Federal AidProjects on the Interstate System) shall not be operated on or across any segment of pavement or structurewhich is to be retained as part of the permanent highway section without specific authorization in writingby the Engineer. This includes any trucks delivering materials to the contract. This authorization shallindicate specifically the limits within which such equipment with over-legal weights or axle loads shalloperate, the frequency of such passages and all other limiting factors consistent with conditions.
If the Engineer determines that the use of heavy equipment on portions of the road section other thanpavement, on any part or all of a contract, is having or will result in detrimental effects on the finishedhighway he/she will so notify the Contractor in writing and shall indicate the maximum weight and/or axleload for any equipment that may be used for any specific operation or location.
105-13 WINTER EARTHWORK OPERATIONS. Earthwork construction operations requiringcompaction shall not be performed from November 1 to April 1 except with the written permission of, andunder such special conditions and restriction as may be imposed by the Regional Director.
105-14 DISPUTE RESOLUTION AND DISPUTED WORK PROVISIONS. It is the goal of theDepartment to resolve disputes that may arise under the contract in a timely, just and fair mannerconsistent with the terms of the contract. Towards this goal, the Department is specifying the disputeresolution and disputed work provisions of this Section. This dispute resolution process may be undertakenat any time from the contract award to the submission of the final estimate for payment by the Office ofthe State Comptroller. The process recognizes and will take into consideration the risks and controlsinherent in construction which the Contractor or the Department have agreed to assume pursuant to theterms of the contract.
If the Contractor considers its disputes unresolved after following the requirements of this Section thenat any time prior to the submission of the final agreement for payment to the Office of State Comptroller,the Contractor may request in writing a meeting with the Commissioner, or his/her designatedrepresentative, to review any outstanding dispute or items of a dispute that have not been previouslyresolved to the satisfaction of the Contractor through the dispute resolution process. If the contractor failsto comply with the requirements of this section, any claim of the Contractor with respect thereto shall bedeemed waived.
A. TIME RELATED DISPUTES. Whenever the Contractor believes that it is or will be entitled toadditional compensation for time related disputes, whether due to delay, extra work, disputed work,breach of contract, or other causes, the Contractor shall follow the procedures set forth in this Section.All subcontracts, supply or equipment contracts shall incorporate the provisions of §105-14, DisputeResolution and Disputed Work Provisions. If such subcontracts or supply or equipment contracts donot have similar provisions, then the State payments to the Contractor for such subcontract or supplyor equipment work shall be limited to only that which are provided by the provisions of this Section asif it were in effect for such subcontract or supply or equipment contract.
1. a. The term “dispute” shall mean a matter of contract performance or contract compensation,including granting of extensions of time, in which there is or may be disagreement betweenthe Contractor and the Department and which may involve adjustment of contract items or theaddition of new items to the contract, extension of time for performance and/or adjustmentsin compensation necessitated by the resolution of such disagreement.
b. The term “time related dispute” shall mean any dispute arising from any event not within theContractor's control, performance, action, force, or factor which affects the scheduled timeof performance depicted in the Contractor's most recent Department approved progress
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schedule submitted to the Department. This Subsection is intended to cover all such eventswhich include termination under §105-07, Termination Clause, major deductions or increasesto quantities of work whether or not covered by §104-02, Alterations and Omissions and §104-03, Contingencies, Extra Work, Deductions, and suspension of work and cancellation ofcontract under §103-03, Right to Suspend Work and Cancel Contract, as well as actions,forces or factors, whether they be termed “delay,” “disruption,” “interference,”“inefficiencies,” “impedance,” “hindrance,” “acceleration,” or otherwise. This subsectionshall cover all such applicable events under §109-16. Notwithstanding the foregoing, for timerelated compensation requests, the Department will compensate the Contractor for only thoseinstances set forth in Article 13(B) of the contract.
2. Strict compliance with the notice provisions of this Section and compliance with the recordkeepingprovisions of this section and §109-05, Extra, Force Account Work, Dispute Compensation andRecordkeeping, shall be an essential precedent condition under the contract provisions to anyrecovery of time related damages by the Contractor whether it be under the contract provisions,court actions and proceedings or otherwise.
3. Except for situations that come within the terms of Section 109-16, subsection 2, Suspensions ofWork, within ten work days after the Contractor has knowledge or should have had knowledge ofan event, matter or occasion, that will result in time related damages, the Contractor must providethe Engineer with written notice of a dispute for time related damages.
The Department shall have no liability and no adjustment will be made for any time relateddamages which accrued more than ten work days prior to the filing of such a notice with theEngineer. Failure of the Contractor to give such written notice in a timely fashion will be groundsfor denial of the dispute and the Department does not have to show prejudice to its interest beforesuch denial is made. In the event the Contractor fails to provide the required written notice withinthe ten work day period and the Contractor demonstrates justifiable excuse or cause as determinedby the Department for not providing the required written notice, then said 10 day notice periodmay be lengthened but only if the Contractor has maintained and submits the specified records setforth in these provisions and the Department has knowledge of the matter or occasion that mayresult in time related damages. In the event the Contractor fails to maintain and submit suchspecified records, or fails to demonstrate justifiable excuse or cause if such notice is not given,or demonstrates such justifiable excuse or cause but fails to maintain and continue to maintain andsubmit such specified records, the Contractor hereby agrees to waive the dispute forcompensation, notwithstanding the fact that the Department may have actual notice of the factsand circumstances which comprise such dispute and is not prejudiced by said failure.
As directed by the Engineer, the work shall continue during the pendency of the dispute. TheEngineer shall make the initial determination in writing on the dispute and the Contractor, if itconsiders the issue unresolved, shall promptly notify, within ten (10) work days after receipt ofthe Engineer's decision, the Regional Director in writing of its position relative to the dispute. Ifthe Regional Director does not resolve the dispute to the satisfaction of the Contractor, the lattershall promptly, within ten work days after receipt of the Regional decision, notify theCommissioner, in writing with copies to the Engineer and the Regional Director, of its contentionsrelative to the dispute, indicating the substance of previous communication on the issue with theEngineer and the Regional Director and its rebuttal of their previous findings or determinations.The Commissioner, or his/her designee, shall make a finding thereon and notify the Contractorof same in writing.
Adjustments of contract items, or adjustments to the time of performance, or the addition ofnew items to the contract necessitated by such dispute determination may be made until the timethe final agreement is submitted for payment to the Office of the State Comptroller, provided thatthe requirements of this Section are complied with.
4. If time related damages are presumed to have been incurred and after giving the Departmentnotice of a dispute for time related damages, the Contractor must keep daily records of all labor,
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material, and equipment costs and hours incurred for the affected operations. These daily recordsmust identify each operation affected and the specific locations where work is affected. On a“weekly basis,” beginning the week following the date of giving notice of a dispute for time relateddamages, the Contractor shall meet with the Engineer and present the daily records for thepreceding week. If the Engineer disagrees with the accuracy, applicability, or reasonableness ofany portion of the Contractor's submission, he/she shall promptly notify the Contractor who shallcorrect its records. If there is a dispute as to records, the Contractor must follow therequirements of §105-14C. The dispute shall first be submitted to the Regional Director and ifunresolved will be submitted in writing to the Commissioner or his/her designee whose decisionshall be final and conclusive subject to the Contractor's right to assert a claim in New York StateCourt of Claims. Lack of substantial compliance with the requirements to attend weekly meetingsor present its records will constitute a waiver by the Contractor of said dispute for time relateddamages.
5. After giving notice of a dispute for time related damages, the Contractor shall prepare and submitto the Engineer, if requested, weekly written reports until complete resolution of the dispute,which shall be available at the next scheduled job meeting, providing the following information:
a. Potential effect to the Contractor's schedule caused by the time related dispute;b. Identification of all operations that have been affected or delayed, or are or may be
affected or delayed;c. Explanation of how the Department's act or omission affected or delayed each operation,
and estimation of how much more time is required to complete the project;d. Itemization of all extra costs being incurred, including:
(1) An explanation as to how those extra costs relate to the effect or delay and how theyare being calculated and measured.
(2) Identification of all project employees for whom costs are being compiled.(3) Identification of all manufacturer's numbers of all items of equipment for which
costs are being compiled. 6. In addition, after submitting the required notice specified in this section, the contractor shall
complete its dispute submission by complying with §109-05 E, Required Content of DisputeSubmission, when such information is ascertainable by the contractor and §109-05 F, RequiredCertification of Disputes.
B. ACCELERATION DISPUTES. The Contractor may not maintain a dispute for costs associatedwith acceleration of the work unless the Department has given prior express written direction by theEngineer to the Contractor to accelerate its effort. The Contractor shall always have the basicobligation to complete the work in the time frames set forth in the contract. For purposes of thisSubsection, lack of express written direction on the part of the Department shall never be construedas assent.
If the Contractor does accelerate its work efforts pursuant to a written order or express writtenapproval by the Regional Director, the Contractor shall be compensated for its effort, in the samemanner and as limited by §109-05(D). The Department, in determining whether or not anycompensation under this Section is warranted, will evaluate the facts and circumstances which led tothe acceleration to determine whether they were in the Contractor's control.
If the contractor is claiming a “constructive acceleration,” it must follow the requirements of§105-14(A).
C. DISPUTED WORK. If the Contractor is of the opinion that any work ordered by the Engineerto be done as contract work is extra work and not contract work, or that any order of the Engineerexceeds the work requirements of the provisions of the contract, the Contractor shall promptly, withinten work days of receipt of the order or direction, notify the Engineer in writing of its contentionsthereto. The Contractor must progress the work as required and ordered. In the meantime, theContractor, if it considers the issue unresolved, shall promptly, within ten work days of receipt of the
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Engineer's written decision, notify the Regional Director in writing of its position relative to thedispute. If the Regional Director does not resolve the dispute to the satisfaction of the Contractor, thelatter shall promptly, within ten work days of receipt of the Regional Director's written decision,notify the Commissioner, in writing with copies to the Engineer and the Regional Director, of itscontentions relative to the dispute, indicating the substance of previous communication on the issuewith the Engineer and the Regional Director and its rebuttal of their previous findings. TheCommissioner, or his/her designated representative, shall make a finding thereon and notify theContractor of same in writing. If such work is determined by the Commissioner or his/her designeeto be extra work pursuant to the provisions of this Section, compensation will be made pursuant to§109-05B. In addition, after submitting the required notice specified in this section, the contractorshall complete its dispute submission by complying with §109-05E, Required Content of DisputeSubmission, when such information is ascertainable by the contractor and §109-05F, RequiredCertification of Disputes. This subsection shall cover all such applicable extra work under §109–16.During the progress of such disputed work, the Contractor and Engineer shall keep daily records andmake reports of all labor, material and equipment used in connection with such work and the costthereof as specified in §109-05C, Force Account Reports.
If the Commissioner or his/her designated representative determines that the work in question iscontract work and not extra work, or that the order complained of is proper, he/she shall again directthe Contractor to continue the disputed work and the Contractor must promptly comply. TheContractor's right to pursue a dispute under this Section for extra compensation or damages will notbe affected in any way by the Contractor's complying with the directions of the Commissioner orEngineer to proceed with the work, provided the Contractor continues to keep and furnish the Engineerwith Force Account Reports as specified in §109-05C.
If the Commissioner, or his/her designated representative, determines that such work is extrawork and not contract work, or that the order complained of is not proper, then the Commissioner orhis/her designated representative shall have prepared, if necessary, an order on contract coveringsuch work as soon as is practical after the determination is made. Payment will be made for suchwork via agreed price or force account pursuant to §109-05 B, New Item Charges. TheCommissioner, or his/her designee, will notify the Contractor in writing of the date upon which theDepartment has approved the order on contract. Performance of work until receipt of the order oncontract by the Contractor shall be considered disputed work. The Contractor must progress the workof the contract, including the work covered by any such order on contract, as directed by the Engineer.Adjustments to contract items, or adjustments to the time of performance, or the addition of new itemsto the contract necessitated by such determination may be made up until the time the final agreementis submitted for payment to the Office of the State Comptroller, provided that all the requirements of§109-05, Extra and Force Account Work, Dispute Compensation and Recordkeeping and §104-03,Contingencies, Extra Work, Deductions, are complied with. In addition, documented, additional,actual and reasonable costs incurred by the Contractor pursuant to following a written order toperform work (that was subsequently contained in an order on contract which was disapproved) willbe considered as reimbursable. This work will be considered disputed work for which the Contractorwill be compensated. Eligibility for compensation shall cease upon notification of the order oncontract's disapproval. Failure by the Contractor to promptly notify, in writing, the Engineer, theRegional Director, and the Commissioner of its contentions relative to any dispute or to maintain andfurnish force account reports for disputed work shall constitute a waiver of the disputed work claim.
D. AUDITING OF RECORDS. The Contractor who has filed a dispute must have the followingrecords available for audit at any time following the filing of such dispute, whether or not such disputeis part of a suit pending in the courts of this State. If a dispute is filed on behalf of a subcontractor orsupplier, such subcontractor or supplier must also have substantially the following records availablefor audit any time following the filing of such dispute, whether or not such dispute is part of a suit
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pending in the courts of this State. The audit may be performed by employees of the Department orby an independent auditor appointed by the Department. The audit may begin on ten days' notice tothe Contractor, subcontractor, or supplier as is appropriate. The Contractor, subcontractor, orsupplier shall cooperate with the auditors. The Department will maintain the audit, its backup,reports, schedules and conclusions as confidential material. Failure of the Contractor, subcontractor,or supplier to maintain and retain sufficient records shall constitute a waiver of that portion of suchdispute that cannot be verified and shall bar recovery thereunder.
Without limiting the generality of the foregoing, the auditors shall have available to them and theContractor agrees to provide access to substantially the following documents:
1. Daily time sheets, job superintendent diaries or log sheets and foreman's daily reports.2. Union agreements and reports, if any.3. Insurance policies, welfare and benefits records or plans for union and non-union personnel.4. Payroll register.5. Individual employee earnings records.6. Payroll tax returns. 7. Material invoices, purchase orders, and all material and supply acquisition contracts. 8. Material cost distribution work sheet. 9. Equipment records (list of company equipment, rates, depreciation schedules, daily equipment
reports or logs, fueling logs or records, equipment lease purchase agreements, and equipmentpurchase invoices).
10. Vendor rental agreements, subcontractor invoices, agreements and back charge records.11. Subcontractor payment certificates. 12. Cancelled checks (payroll and vendors).13. Job cost ledger or report. 14. Job payroll ledger, petty cash journal and supporting vouchers. 15. General ledger, general journal (if used), and all subsidiary ledgers and journals together with
all supporting documentation pertinent to entries made in these ledgers and journals.16. Cash receipts, cash disbursements journal, and purchase journal. 17. Audited and unaudited financial statements for all years reflecting the operation on this
project.18. Depreciation records on all company equipment whether such records are maintained by the
company involved, its accountant, or others. 19. If a source other than depreciation records is used to develop costs for the Contractor's
internal purposes in establishing the actual cost of owning and operating equipment, all suchother source documents.
20. All documents which reflect the Contractor's actual overhead during the years this Projectwas being performed.
21. All documents related to the preparation of the Contractor's bid including the final calculationson which the bid was based.
22. All documents which relate to each and every dispute together with all documents whichsupport the amount of damages as to each dispute.
23. Work sheets used to prepare the dispute establishing the cost components for items of thedispute including, but not limited to, labor, benefits and insurance, materials, equipment,subcontractors, and all documents which establish the time periods, individuals involved, thehours and the rates for the individuals.
In the event the Contractor fails to substantially furnish the above required reports and accountingrecords, such failure shall constitute a waiver of the dispute for payment other than for payment atcontract unit prices for the work performed.
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105-15 CONTRACTOR’S RESPONSIBILITY FOR WORK. The Contractor is responsible forcarrying out the provisions of the contract at all times, regardless of whether an authorized inspector ispresent or not. Any work or item that is, at any time, found to be out of specification or not in compliancewith the plans shall remain the responsibility of the Contractor and shall be subject to such correctivemeasures that are approved in writing by the Engineer.
105-16 APPROVAL OF SHOP DRAWINGS, INSTALLATION METHODS ANDCONSTRUCTION DETAILS. Approval by the Department of shop drawings, methods of installationor Contractor's construction detail does not relieve the Contractor of the responsibility for compliance withthe contract specifications, or relieve the Contractor of the responsibility for providing adequate qualitycontrol measures and does not relieve the Contractor of providing proper and sufficient materials,equipment and labor to complete the approved work in accordance with the contract proposal, plans andspecifications.
SECTION 106 - CONTROL OF MATERIAL
106-01 SOURCE OF SUPPLY AND QUALITY REQUIREMENTS. All materials used in the workshall meet the quality requirements described in Section 700, Materials Details, unless the same arealtered by specific requirements under any itemized specification or by notes shown upon the plans, or inthe proposal.
Immediately upon award of the contract, the Contractor shall furnish in writing to the RegionalDirector the sources of supply, types of all items and kinds of materials which it proposes to use in thework. No change shall be made in the sources of supply or kinds of materials or in the type of any itemexcept upon written approval by the Regional Director.
As soon as the contract is awarded, the Contractor shall notify the D.C.E.S. of the name and addressof the fabricator of all structural steel. This notification shall list the specific shop or shops in which thesteel will be fabricated.
It shall be the responsibility of the Contractor to advise the Engineer of the sources of proposedmaterials sufficiently in advance of their use so that proper tests may be made.
The Contractor shall provide to the Engineer a Material Safety Data Sheet (MSDS) meeting currentrequirements of OSHA Part 1926 for materials to be used in the work, before each material is first usedin the project. The requirement to provide a MSDS shall apply to all materials to which workers areexposed, to the extent that OSHA Part 1926.59 requires a MSDS for that material. This applies to thosematerials brought to the job site to be incorporated into the work, as well as to all materials that areencountered at the job site as a result of the use or incorporation of the other materials. This requirementshall be waived for commonly used generic construction materials such as portland cement and asphaltcement by providing to the contractor a list of those materials. Such waiver, however, does not relievethe contractor from the responsibility to maintain a copy of the MSDS for each material to which thecontractor's workers will be exposed, as required by OSHA Part 1926.
106-02 SAMPLES, TESTS AND CITED SPECIFICATIONS. All materials and products proposedto be used in construction shall be inspected, sampled, and tested by the Department, or its designatedrepresentative, as described in section 700, Materials Details, of the specifications, as indicated by notesin the contract documents, or by procedural directives issued by the Department. Whenever anyspecification provides for “Certification” or “Approved List” as a Basis of Acceptance, the Departmentreserves the right to sample and/or test material in any shipment prior to incorporation in the work.
Test specimens shall be removed from sampled items in the presence of the Departmentrepresentative, prepared for testing, and shipped to the Department as directed by the Department. Thecost of all samples, and any other expenses incurred in making materials or products ready for inspection,sampling and/or testing shall be included in the unit prices bid for the various items in the contract.
Where testing methods are not described in the specifications, details of test methods may be obtainedby application to the Department.
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The expense of all required inspection, sampling and testing performed in the forty-eight contiguousstates of the United States and the provinces of Canada, including the shipment of samples by the mosteconomical means, shall be paid for by the Department unless specifically excluded elsewhere in thecontract documents or procedural directives.
The expense of all required inspection, sampling, testing and qualification of plants and manufacturersor fabricators outside of the contiguous forty-eight states of the United States and the provinces of Canada,shall be borne by the Contractor. These expenses shall include the costs of wages and benefits, travel,meals, lodging, communication and all other direct costs of inspection, sampling and testing paid by theDepartment to perform these services using Department employees or designated representatives undercontract to the Department. These expenses, which exclude the costs of tests performed in the DepartmentLaboratory, shall be taken into account by the Contractor in the preparation of its bid. Reimbursement tothe Department shall be made in the form of a deduction from payments due the Contractor. The shipmentof samples to the Department Laboratory from outside of the forty-eight contiguous states of the UnitedStates and the provinces of Canada shall be a direct cost borne by the Contractor or its agent and all suchshipments shall be made under provisions established by the Department to insure identity and security ofthe sample.
The location of inspection, sampling and/or testing materials and products manufactured, producedand/or fabricated outside of the contiguous forty-eight states of the United States and the provinces ofCanada shall, at the option of the Department, be performed at the site of manufacture, production and/orfabrication or at a site within the contiguous forty-eight states of the United States and the provinces ofCanada, designated by the Contractor and approved by the Department.
Materials and products manufactured, produced and/or fabricated outside of the contiguous forty-eightstates of the United States and the provinces of Canada and deemed by the Department to requireinspection, sampling and/or testing at the site of manufacture, production and/or fabrication shall besubject to qualification of the plant and manufacturer or fabricator by the Department prior to the requiredinspection, sampling and/or testing during manufacture, production and/or fabrication. These materialsand products include fabricated structural steel for bridges, precast concrete slabs, beams and piles andany other item specified in the contract documents or by procedural directives, to require such servicesoutside of the contiguous forty-eight states and the provinces of Canada. The Contractor shall notify theDepartment 50 calendar days in advance of beginning of the work in any mill, plant, shop or othermanufacturing location to allow time for a qualification inspection and arrangements for inspection,sampling and/or testing during the work.
Materials and products manufactured, produced and/or fabricated outside of the contiguous forty-eightstates of the United States and the provinces of Canada whose conformance with the requirements of thecontract documents may be determined, in the judgment of the Department, by visual inspection and testsof specimens may be presented within the contiguous forty-eight states in specifically defined lot quantitiesas directed by the Department for inspection, sampling and testing subsequent to manufacture, productionand/or fabrication. Such materials or products shall be offered for inspection not less than 30 days priorto their intended shipment to the project. All expenses attendant to making such materials or productsavailable for inspection, sampling and/or testing shall be paid by the Contractor.
All communications with the Department, written or verbal, shall be in English. The instructions forthe use of all materials and products, as well as all identifying information required by the specifications(i.e., labels, tags, certifications, etc.) shall be in the English language. Mechanical propertymeasurements, dimensions and all other numerical data shall be in the International System (SI) of unitsconsisting of meters, kilograms and seconds. All references to costs, charges, prices, etc., shall be inUnited States dollars.
Unless otherwise directed by the Department, no materials shall be used until the Engineer-in-Chargeof the contract has received written notification of acceptance of that material and such material shall beused only so long as the quality remains equal to that of the accepted sample. This initial acceptance of amaterial shall in no way preclude further examination and testing of a material at any time the Engineersuspects that the material is no longer properly represented by the accepted sample. The acceptance at
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any time of any materials shall not bar its future rejection if it is subsequently found to be defective inquality or uniformity.
Contractors shall furnish the names of companies from whom they purchase materials which areinspected at manufacturing plants, with the Item Number, the Contract Number, and the destination foreach shipment of material so ordered. If any part of the contract is sublet, the subcontractor shall alsoconform to the foregoing requirements.
Unless otherwise designated, when a reference is made in these specifications to a specification ortest designation either of the AASHTO, ASTM, Federal Specifications, or any other recognizednon-proprietary national organization, it shall mean the specification or test method (including ProvisionalAASHTO and Tentative ASTM) which is current on the date of advertisement for bids.
Unless otherwise designated, when a reference is made in the specifications to the “New York StateSteel Construction Manual” or the “New York State Manual of Uniform Traffic Control Devices” it shallmean the edition, as amended, which is current on the date of advertisement for bids.
Where plant inspection is not maintained, the method and procedure for sampling, inspecting andreporting shall conform to that established by the Department.
The U.S. Standard Screen Sieves meeting ASTM E11, shall be used on all materials requiringgradation tests.
Whenever Class B concrete is mentioned in the Contract Documents, it shall be taken to mean ClassA concrete or any optional concrete Class allowed to be used in lieu of Class A concrete.
106-03 PLANT ACCEPTED MATERIAL. Any material which has been plant inspected and acceptedby this Department for any Department contract, shall not be shipped to other work unless authorized bythe Department.
106-04 REJECTION. Any material which is rejected because of failure to meet the required tests orthat has been damaged so as to cause rejection, shall be immediately removed from the site of the work.
106-05 STORAGE OF MATERIALS. Materials shall be so stored as to insure the preservation of theirquality and fitness for the work. Stored materials, even though accepted before storage, shall be inspectedprior to their use in the work and shall meet the requirements of the contract at the time of their use.
106-06 TRANSPORTATION OF MATERIALS. Railroad cars, barges and other containers used forthe transportation of materials shall be clean when any materials are deposited therein.
106-07 BASIS FOR MEASUREMENT. Weight shall be used in all cases for percentage determinationunless otherwise specified.
106-08 REMOVAL OF REJECTED MATERIAL. Material which has been rejected on the results ofDepartment tests will not be resampled or retested unless otherwise directed by the Department. Rejectedmaterials shall be removed immediately from the site of the work by the Contractor at its expense unlessotherwise directed by the Engineer. No rejected materials, the defects of which have been subsequentlycorrected, shall be used until written notification of the acceptance of the material has been received bythe Engineer.
106-09 EQUIVALENTS. The requirements for apparatus, articles, or materials shall be specified, iffeasible, in generic terms which afford competition for equivalent products or items. When no genericspecification can be found or devised, a minimum of at least three, if available, known acceptable tradenames or proprietary products shall be provided for the Contractor’s benefit and to afford the desiredcompetition. The Commissioner shall be the sole judge of the qualifications of the products and willdetermine all questions regarding the conformance of any item with the specifications.
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SECTION 107 - LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
107-01 LAWS, PERMITS AND LICENSES. The Contractor shall observe all Federal, State andapplicable local laws and regulations. Attention is directed to the regulations of Federal and State Agenciesin regard to agricultural insects and diseases. In particular, the Contractor’s attention is directed toFederal and State Department of Agriculture regulations for plant pest control which require thatequipment operating in infested areas be thoroughly cleaned before moving to non-infested areas. Inaddition, the Contractor agrees to procure all necessary licenses and permits.
107-02 PATENTED DEVICES, MATERIALS AND PROCESSES. It is mutually understood andagreed that the contract prices are to include all royalties and costs arising from patents, trademarks, andcopyrights in any way involved in the work. Whenever the Contractor is required or desires to use anydesign, device, material or process covered by letters, patent or copyright, the Contractor shall indemnifyand save harmless the State from any and all claims for infringement by reason of the use of any suchpatented design, device, material or process, to be performed under the contract, and shall indemnify thesaid State for any costs, expenses and damages which it may be obliged to pay, by reason of any suchinfringement, at any time during the prosecution or after the completion of the work.
107-03 FEDERAL AID. In all contracts in which the Federal Government participates financially, whichcontracts are designated as Federal-Aid contracts the Contractor shall conform in all respects inaccordance with the true intent and meaning of each and all of the requirements contained in the “RequiredContract Provisions Federal Aid Construction Contracts,” a copy of which will be found incorporated ineach proposal for contracts so classified. When any of such Federal Provisions may be in conflict withany other provisions of the contract the Federal Provisions shall prevail and take precedence and be offorce over and against any said conflicting provisions of said contract.
107-04 SANITARY CODE. The Contractor shall comply with the provisions of the State Sanitary Coderelating to camps and obtain from the local health officers permits for the construction, maintenance andoperation of labor camps, if used.
107-05 SAFETY AND HEALTH REQUIREMENTS
A. General. The Contractor shall perform all work in the contract in a skillful manner with dueregard to the safety and health of the employees and of the public.
The Contractor shall comply with Title 29 Code of Federal Regulations Part 1926, Safety andHealth Regulations for Construction (OSHA) regarding the safety and protection of persons employedin construction and demolition work.
In accordance with OSHA regulations, Contractors’ employees shall be required to wearprotective helmets (hard hats) when there is a possible danger of head injury from impact, from fallingor flying objects, from electrical shock and burns, or as directed by the Engineer. Additionally, allemployees working within an active highway right-of-way must wear protective helmets at all times.Helmets are not required for employees within a completely enclosed cab constructed of steel frameand glass, or inside an automobile. Helmets must meet current OSHA standards for impact, electricalshock and burn protection. Contractors’ employees will be considered to include everyone on thecontractors’ payroll, subcontractors, material suppliers, and other personnel on the project site underthe direction of the Contractor.
It shall be the responsibility of the Contractor to perform all necessary planning, supervision, andtraining activities to ensure that all of the requirements of Title 29 CFR Part 1926 are fully met forall workers employed in the construction of the contract. The Contractor shall provide to theDepartment prior to the start of work satisfactory evidence that all current requirements of Part 1926will be adequately addressed. As a minimum, the Contractor shall provide a written Project Safetyand Health Plan which documents the Contractor's company policy relative to safety, and whichidentifies and addresses specific health and safety concerns to be encountered on the project. Before
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the work begins and periodically throughout the project, the Contractor's project supervision staff shallmeet with the Engineer to review and discuss the status of safety issues on the project. An appropriatenotice shall be posted on the job site that the Project Safety Plan is available for examination by anyworker employed on the project. As a minimum this safety plan shall include the following items:
(a) Identification of project and company safety officers(b) Hazardous Materials Communications Plan(c) Employee Safety Training Program(d) Company safety policy(e) Procedures to address project health and safety concerns(f) Procedures for compelling worker compliance with health and safety requirements.
Certain of these items may be submitted in the format of a Company Health and Safety Program,with the Project Safety and Health Plan limited to project-specific issues.
The Contractor shall be responsible to ensure that each subcontractor employed on the projectcomplies with this requirement. The Contractor shall provide to the Department a Project Safety andHealth Plan covering all work to be done by the subcontractor prior to starting work. As an alternate,the Contractor may provide a certification that all activities performed by and workers employed bythe subcontractor will be subject to the Contractor's Project Safety and Health Plan.
Submission of the required Project Safety Plan by the Contractor and its acceptance by theDepartment shall not be construed to imply approval of any particular method or sequence foraddressing health and safety concerns, or to relieve the Contractor from the responsibility toadequately protect the health and safety of all workers involved in the project as well as any membersof the public who are affected by the project.
The contractor shall notify the Engineer of any inspections to be conducted on the project byUSDOL OSHA, NYSDOL, or other health and safety agencies, and of any resulting closingconference, and provide the Engineer with the opportunity to be present at such inspections and closingconference. The Contractor shall notify the Department in writing of the results of any health andsafety inspections conducted on the project by representatives of USDOL OSHA, NYSDOL, or otherhealth and safety agencies, within one business day of the completion of the closing conferenceresulting from such inspections. If any citations are issued for alleged violations of Part 1926 OSHARegulations, a copy shall be provided to the Engineer within one business day of their receipt by theContractor, and a copy of the final disposition of such citations shall also be provided to the Engineerwithin one business day of their receipt by the Contractor. In addition, the Contractor shall notify theDepartment in writing within 24 hours, with the details relative to any accident or incident occurringat the contract work site involving any worker employed on the contract or delivering materials,equipment or supplies to the contract, provided (a) the accident or incident occurs within the confinesof the project and (b) the accident or incident results in the death of the worker, or requires that theworker is hospitalized overnight for treatment of the injury, or (c) the accident otherwise meets thenotification requirements of OSHA.
B. Drilling and Blasting. A project meeting relative to the method, manner and procedure ofblasting operations shall be held at the site with the Engineer, the Contractor, the project blaster andrepresentatives of all interested agencies including a Departmental Engineering Geologist, prior to thecommencement of drilling and blasting operations.
Whenever explosives are used, they shall be of such character and strength and in such amountsas is permitted by the State and local laws and ordinances and all respective agencies havingjurisdiction over them. In special cases the right is reserved for the Engineer and those agencies tospecify the maximum size of the charges.
Blasting shall be done only at such time as the Engineer and those agencies shall approve and undersuch restrictions as they may impose.
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The Contractor shall employ only experienced supervisors and workers in the handling, loadingand firing of the explosives. The Contractor’s attention is directed to the requirements of IndustrialCode Rule 39 of the State of New York, Department of Labor, Board of Standards and Appeals, andthe applicable Sections of the Labor Law which, together with the conditions indicated herein shallprovide for the possession, handling, storage and transportation of all explosives used at the site.
C. Explosives in Demolition. Demolition work shall not be performed by the use of explosivesunless approved by the Regional Director.
D. Excavation or Blasting Near Combustible Gas Pipes.
1. No person shall discharge explosives in the ground, nor shall any person other than a state,county, city, town or village employee regularly engaged in the maintenance and repair thereofexcavate in any then existing street, highway or public place, unless notice thereof in writing shallhave been given at least seventy-two hours in advance to the person, corporation or municipalityengaged in the distribution of gas, electricity, steam or water, or the provision of telephone ortelegraph service in such territory. The person having direction or control of such works shall givesuch notice and further he/she shall ascertain whether there is within one hundred feet (30 480mm) in such street, highway or public place, or in the case of a proposed discharge of explosives,within a radius of two hundred feet (60 960 mm) of such discharge, any pipe of any other person,corporation or municipality conveying combustible gas, and if there be any such pipe he/she shallalso give such notice to any such other person, corporation or municipality. Provided, however,that in any emergency involving danger to life, health or property it shall be lawful to excavatewithout using explosives if the notices prescribed herein are given as soon as reasonably possible,and to discharge explosives to protect a person or persons from an immediate and substantialdanger of death or serious personal injury if such notices are given before any such discharge isundertaken. Any such work shall be performed in such manner as to avoid damage to any utilityfacilities.
2. If in the course of any such excavation, blasting or other work, damage or the potential thereofis occasioned to any utility facility used in the transmission or distribution of gas, electricity,water, steam, telephone or telegraph, whether by direct contact, undermining of soil or othersupport thereof, or otherwise, the person having direction or control of such work shall promptlytake all reasonable measures necessary to protect individuals and the public from loss or thepotential thereof and shall immediately notify the person, corporation or municipality owning oroperating such utility of such damage or potential damage to its facilities. Neglect on the part ofthe person having direction or control of such works, responsible for any damage or potentialdamage to such facilities (a) to take such safety precautionary measures as are necessary orreasonably required promptly or (b) to immediately notify the owner or operator of the utilityfacility involved of damage or potential damage to its facilities, occasioned by such person orunder its direction or control, shall be a violation of this section and constitute a misdemeanor.Nothing herein contained shall preclude or prevent recovery of monetary damages by the owneror operator of the utility facility involved or by any other person suffering damage from thedisruption of utility services occasioned by excavation, blasting or other work in the vicinitythereof.
3. The Laws of New York, Chapter 957 were amended effective August 6, 1984 by the additionof the language below to empower the New York State Public Service Commission to inspectcertain construction works as described
“The Commission shall have power, through the inspectors or duly authorized employees ofthe department, to examine and inspect excavation and demolition methods used by any personwithin fifteen feet (4572 mm) in any direction of an underground pipeline used for conveyingnatural gas and to order compliance with the standards for excavation and demolition near
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underground gas pipelines contained in regulations issued or applied pursuant to sectiontwenty-eight-a of the labor law.”
The Contractor shall provide the Commission’s inspector access to the works.
E. Guarding and Protection. The Contractor shall be responsible for guarding and protecting openand unattended excavations and other potentially hazardous locations in and adjacent to areas lawfullyfrequented by any person. Such guarding and protection shall consist of any one, or a combination of,the following:
1. A substantial fence or barricade, not less than four feet (1219 mm) in height and mounted onsatisfactory supports spaced at intervals of not more than ten feet (3048 mm). Warning signsreading “DANGER-KEEP OUT” shall be mounted on the fence or barricade, as required by theEngineer, at no more than one hundred foot (30 480 mm) intervals. The signs shall be twenty-fourinches (610 mm) wide by sixteen inches (406 mm) high. The lower portion of the sign shall bewhite and shall bear the words “Keep Out” in five inch (127 mm) black letters. The upper portionshall be predominantly red with five inch (127 mm) white lettering spelling out the word“Danger.” The lettering shall be enclosed by an approximately elliptical, white ring and the entiresign bordered in black. All barricades and warning signs shall be furnished, erected, relocated,maintained, and removed as required.
2. A forty-eight inch (1219 mm) extension of the trench sheeting above the ground surface adjacentto the excavation.
3. A substantial covering over the excavation. Where it is possible that vehicles will move oversuch covering, the covering shall be of sufficient strength to withstand the loading.
F. Emergency Contact Person. The Contractor shall designate someone to be available to respondto emergency calls. The name of the person and the telephone number at which he/she can be reached atany time shall be given to the Engineer and all police agencies in the area. Such person shall have fullauthority and capability to mobilize forces promptly as required to respond to an emergency and protectthe public.
107-06 INSURANCE. The Contractor shall procure and maintain at its own expense and withoutexpense to the State, until final acceptance by the State, of the work covered by the contract, insurancefor liability for damages imposed by law, of the kinds and in the amounts hereinafter provided, withinsurance companies authorized to do such business in the State covering all operations under the contractwhether performed by it or its subcontractors. Before commencing the work the Contractor shall furnishto the Commissioner a certificate or certificates of insurance in form satisfactory to the Commissionershowing that it has complied with this paragraph, which certificate or certificates shall provide that thepolicies shall not be changed or cancelled until thirty (30) days written notice has been given to theCommissioner. The types of insurance are as follows:
A. Workers’ Compensation Insurance. A policy covering the obligations of the Contractor inaccordance with the provisions of the Workers’ Compensation Law, covering all operations under thecontract, whether performed by it or its subcontractor and also under the Disability Benefits Law.The contract shall be void and of no effect unless the person or corporation making or executing sameshall secure compensation and disability benefits coverage for the benefit of, and keep insured duringthe life of said contract, such employees in compliance with the provisions of the Workers’Compensation Law (State Finance Law §142).
B. Liability and Property Damage Insurance. Policies following the 1986 ISO formats shallbe provided. Unless otherwise specifically required by special provision, each policy shall not beamended or contain deductible clauses or coverage exclusions of any nature and shall have limits notless than:
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1986 Insurance Services Office format:
Bodily Injury and Property Damage Liability Combined Single Limit
Each Occurrence Aggregate $1,000,000 $2,000,000
For all damages arising during the policy period, insurance shall be furnished in the types (a1.) through(e.) as described below. An umbrella type policy, dedicated to this contract, may be used to meetthese limits.
a1. Contractor’s Liability Insurance issued to and covering the liability for damages imposed by lawupon the CONTRACTOR with respect to all work performed by it under the agreement;
a2. Contractor’s Liability Insurance issued to and covering the liability for damages imposed by lawupon EACH SUBCONTRACTOR with respect to all work performed by said subcontractor underthe agreement;
b. Contractor’s Protective Liability Insurance issued to and covering the liability for damagesimposed by law upon the Contractor with respect to all work under the agreement performed forthe Contractor by subcontractors;
c. Completed Operations’ Liability Insurance issued to and covering the liability for damagesimposed by law upon the Contractor and each subcontractor arising between the date of finalcessation of the work and the date of final acceptance thereof, out of that part of the workperformed by each;
d. Protective Liability Insurance issued to and covering the liability for damages imposed by law uponThe People of the State of New York, the State of New York, and the Commissioner ofTransportation and all employees of the Commissioner of Transportation both officially andpersonally, any municipality in which the work is being performed, and/or any public benefitcorporation, railroad, or public utility whose property or facilities are affected by the work or anyconsultant inspecting engineer or inspector working for or on the project, and their agents oremployees, with respect to all operations under the agreement by the Contractor or itssubcontractors, including omissions and supervisory acts of the State, municipality, public benefitcorporation or consultant. Specifically, this includes, but is not necessarily limited to the PARTIES LISTED IN THE PROPOSAL .Failure to list a firm, organization or municipality, etc. does not eliminate the requirement toprovide such coverage.
If the Contractor elects to use the same policy for more than one project, it must provide with theinsurance certificate the Aggregate Limits of Insurance (per project) Endorsement indicating thespecific project site and contract number;
e. Commercial General Liability (Premises, Existence, Hazard) Insurance (formerly calledOwner’s, Landlord’s and Tenant’s Liability Insurance) issued to and covering the liability fordamages imposed by law upon The People of the State of New York, the State of New York andthe Commissioner of Transportation and all employees of the Commissioner of Transportationboth officially and personally, any municipality in which the work is being performed, and/or anypublic benefit corporation, railroad, or public utility whose property or facilities are affected bythe work or any consultant inspecting engineer or inspector working for or on the project, and theiragents or employees, with respect to temporarily opening any portion of the State constructionproject under this agreement, until the construction or reconstruction pursuant to the agreementhas been accepted by the State. Specifically, this includes, but is not necessarily limited to the
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PARTIES LISTED IN THE PROPOSAL .
Failure to list a firm, organization or municipality, etc. does not eliminate the requirement toprovide such coverage. This coverage will not be required for contracts involving only turfestablishment, landscaping, or traffic signals, which do not involve work on the roadway.
f. Automobile Liability and Property Damage Insurance. A policy covering the use in connectionwith the work covered by the Contract Documents of all owned, non-owned and hired vehiclesbearing, or, under the circumstances under which they are being used, required by the MotorVehicle Laws of the State of New York to bear license plates.
107-07 CLOSING OF HIGHWAY. The specifications of §104-04, Closing of Highway,shall apply.
107-08 PRESERVATION OF PROPERTY. It is the intent of this specification that the Contractorprotect and preserve all public and private property including all existing vegetation, existing landscapefeatures and monuments within, along and adjacent to the highway right-of-way. The Contractor shall useevery precaution necessary and perform the work as specified, in a manner approved by the Engineer,to prevent damage, injury, pollution or destruction; shall protect all trees and other woody plants whichare to remain; shall take special care to protect the natural vegetation and surroundings including allnatural drainageways, ponds, lakes, swamps, woods and fields, shall store materials in such a manneras to prevent leaching which would be injurious to soils and to plants; shall repair all injuries to woodyplants, which are to remain, by approved horticultural methods; and shall scarify the compacted soil andregrade as directed to restore the property to a natural condition.
The Contractor shall also use suitable precaution necessary to prevent damage to pipes, conduits andother underground structures, and protect carefully from disturbance or damage all land monuments andproperty marks until an authorized agent has witnessed or otherwise referenced their location and shallnot remove them until directed.
Where the soil over the root area of trees to be preserved has been compacted, it shall be restored byproper cultivation as directed by the Engineer to a condition to permit the entrance of water and the properaeration of roots.
107-09 DAMAGE. All damage, direct or indirect, of whatever nature resulting from the performanceof the work or resulting to the work during its progress from whatever cause, including omissions andsupervisory acts of the State, shall be borne and sustained by the Contractor, and all work shall be solelyat its risk until it has been finally inspected and accepted by the State except that:
A. Damage by Public Traffic. Payment shall be made to the Contractor for repair or replacementof any permanent element of the highway which is completed to the stage of serving its intendedfunction and is subsequently damaged by accident by public traffic. The Contractor must supplysatisfactory evidence that such damage was caused by a public traffic accident and not by vandalismor by the Contractor’s equipment. Satisfactory evidence shall generally be limited to: accident reportsfiled with the Motor Vehicle Department, police agencies or insurance companies; statements byreliable, unbiased eye witnesses; identification of the vehicle involved in the accident. Physicalevidence that the damage was caused by a motor vehicle (such as tire marks or broken headlight glass)will not be sufficient unless it can be shown that the damage was not caused by the Contractor’svehicles or by vandalism.
Work for which there is a bid item will be paid for at the unit price for that item. Work for whichthere is no bid item will be paid for at an agreed price or by means of force account. Payment willnot be made for repair or replacement in any way connected with untimely failure of any portion ofthe highway under public traffic, and the determination regarding this matter shall be made by theRegional Director, taking into consideration the normal life and the amount of normal wear of theelement involved. This provision does not relieve the Contractor of the responsibility of maintenance
§107-09
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and protection of traffic for the contract or the responsibility of having a wholly complete andacceptable job at the time of final inspection and acceptance of the entire contract. Payment for suchdamage shall be made only after the Contractor has demonstrated to the satisfaction of the RegionalDirector that he had made every reasonable effort to collect the costs from the person or personsresponsible for damage.
B. Damage by Occurrence. In the event that damage to the work in progress is caused by a flood,drought, tidal wave, fire, hurricane, earthquake, windstorm or other storm, landslide or othercatastrophe which constitutes an “Occurrence”, as hereinafter defined, and to the extent that suchdamage has been determined by the Department to be beyond that which may be anticipated fromheavy storms, and also to the extent that such damage is not reimbursable by insurance carried by theContractor, the Contractor may apply in writing to the Commissioner for the State to pay or participatein the cost of repairing the damage to the work from such cause or, in lieu thereof, and at the solediscretion of the Department, terminate the contract and relieve the Contractor of further obligationto perform the work, subject to the following:
1. Occurrence. “Occurrence” shall include only those floods, droughts, tidal waves, fires,hurricanes, earthquakes, windstorms or other storms, landslides or other catastrophes when suchoccurrences or conditions and effects have been proclaimed a disaster or state of emergency by thePresident of the United States and the Governor of New York State.
2. Application by Contractor. The Contractor’s written request for the State to pay orparticipate in the cost of rebuilding, repairing, restoring or otherwise remedying such damage thathas been determined by the Department to be beyond that which may be anticipated from heavystorms to the work caused by the occurrence shall be submitted to and approved by theCommissioner before performing any work other than emergency work, including emergency worknecessary to provide for passage of public traffic.
C. Obligation to Indemnify by the Contractor. The Contractor shall indemnify and save harmlessthe State, except as prohibited by law, any municipality in which the work is being performed, and/orany public benefit corporation, railroad, or public utility whose property or facilities are affected bythe work, from suits, claims, actions, damages and costs, of every name and description resultingfrom the work under its contract during its prosecution and until the acceptance thereof. TheContractor and any assigns, heirs, or successors in interest shall also indemnify and save harmless,except as prohibited by law, the consultant inspecting engineer or inspector working for the Staterelative to the project from suits, claims, actions, damages and costs involving personal injury andproperty damage resulting from the Contractor’s work under the contract during its prosecution anduntil the acceptance thereof. The State may retain such monies from the amount due the Contractoras may be necessary to satisfy any claim for damages recovered against the State, any municipalityin which the work is being performed, and/or any public benefit corporation, railroad or public utilitywhose property or facilities are affected by the work or consultant inspecting engineers or inspectorsworking for the State relative to the project. The Contractor’s obligation under this paragraph shallnot be deemed waived by the failure of the State to retain the whole or any part of such monies duethe contractor, nor where such suit, action, damages and/or costs have not been resolved ordetermined prior to release of any monies to the Contractor under the contract, nor shall suchobligation be deemed limited or discharged by the enumeration or procurement of any insurance forliability for damages imposed by law upon the Contractor, subcontractor or the State, any municipalityin which the work is being performed, and/or any public benefit corporation, railroad or public utilitywhose property or facilities are affected by the work, or any consultants or contract engineers workingfor the State relative to the project.
The Contractor has the obligation, at its own expense, for the defense of any action or proceedingwhich may be brought against the parties specified in this Section. This obligation shall include the
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cost of attorney fees, disbursements, costs and other expenses incurred in connection with such actionor proceeding.
Such obligation does not extend to those suits, actions, damages and costs of every name whicharise out of the sole negligence of the State, any municipality in which the work is being performed,and/or any public benefit corporation, railroad or public utility whose property or facilities are affectedby the work of the project, or any consultants or contract engineers working for the State relative tothe project, their agents or employees, relative to the construction, alteration, or repair ormaintenance of a building, highway or structure and appurtenances and appliances thereof includingmoving, demolition and excavating connected therewith.
D. Maximum loads. For information on construction equipment and maximum allowable loads,reference is made to §105-12, Construction Equipment.
107-10 RESTORATION OF DISTURBED AREAS OUTSIDE THE RIGHT-OF-WAY. It is the intentof this specification that all areas outside of the right-of-way, except as noted in the following text,disturbed, used by, or serving as a source of material for the Contractor be restored to a pleasing andacceptable condition as specified and as satisfactory to the Engineer.
The Contractor shall obtain the written approval of the Engineer for the use of any specific area beforeany work in such area is begun, except as noted in the following text. Where deemed necessary by theEngineer the Contractor shall submit, as part of the request for approval, a grading plan showing theproposed final grading of the area. Approval shall not be given if, in the opinion of the Engineer, the areais not suited to acceptable restoration or if serious or permanent ecological damage is foreseeable. Thisspecification applies to areas such as, but not limited to, borrow pits or areas, spoil or waste areas, haulroads, storage areas batching areas, equipment storage areas, shop areas and all similar areas. This doesnot apply to areas which have been or are being used by the Contractor as its established and permanentheadquarters and equipment pool sites or to commercial borrow sources, commercial gravel pits,commercial quarries, public disposal areas and all similar areas.
In accordance with Article 23, Title 27 of the Environmental Conservation Law all borrow pits andaggregate sources outside of the State right-of-way, where more than one thousand metric tons of mineralsare removed from the earth within any twelve successive calendar months, require mining permitsobtained from the New York State Department of Environmental Conservation. When such permit isrequired, the Contractor, in addition to complying with all restoration requirements for all areas as statedbelow, may be required by the Engineer to meet any standard contained in the Mined Land ReclamationLaw, Rules and Regulations (6 NYCRR Parts 420 et. seq.)
In general, the restoration shall include:
A. The removal of all equipment and parts, junk, rubbish, excess materials and debris of all kind;B. Clean up as required, grading as shown if a grading plan has been prepared; or graded so as toblend into the surrounding ground forms to the satisfaction of the Engineer;C. Scarification of storage yards, batching sites, haul roads, etc., to the depth determined by theEngineer as necessary to support vegetation;D. The removal and regrading of temporary roads or areas as required by the Engineer;E. The repair or removal of damaged trees and the fertilizing, seeding and mulching of the areas asprovided for in the contract or as directed by the Engineer;F. Grading the slopes of excavated areas to a stable condition, but in no case shall earth cut faces beleft steeper than one (1) vertical on one and one-half (1.5) horizontal. All rock cut slopes shall bescaled to remove any loose or unstable rock.
Areas within sight of the finished highway or any other highway will require particular attentioninsofar as the above features are concerned. It is the intent to have all such areas present a pleasingappearance to travelers on any highway.
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Where borrow pits result in the formation of ponds or low areas intermittently filled with water theContractor shall furnish the Engineer with a copy of its agreement with the landowner permitting the useof such areas. If such an area is within sight of any highway, the Regional Director’s written approvalmust be obtained prior to the removal of any borrow from such a location. If such approval is not granted,material for use on the contract or for any other State contract may not be removed from the area. In theevent the Contractor removes material from such an area without the written approval of the RegionalDirector, payment will not be made for any item of work in which the material has been used. Gradingplans may be required for such areas and due consideration given to the appearance of the areas if theyare visible from any highway.
All of this restoration shall be accomplished prior to acceptance of the contract except that work ofrestoring Contractor’s work areas (storage, batching, equipment, shop areas, etc.) may be done after theofficial acceptance of the contract but must be completed prior to the final release of retained funds.
Since the extent of such areas and the use and treatment during construction is within the discretionof the Contractor, within the limitations and requirements outlined, no payment will be made for any labor,material or equipment necessary for the restoration of these areas. The cost of the work shall be includedin the amount bid for other items of work. Any work done shall, in general, be in accordance with theDepartment’s specifications for similar items of work and/or as specified by the Engineer.
In the event the Contractor carries on any operation on the referenced areas without written approvalof the Regional Director and/or Engineer no payment will be made for any item in the contract involvedin any way with any operation on the unapproved area.
107-11 RESTORATION OF DISTURBED AREAS WITHIN THE RIGHT-OF-WAY. It is the intentof this specification that all disturbed areas within the right-of-way but outside of the work limits berestored to a pleasing and acceptable condition as specified and as satisfactory to the Engineer. For thepurposes of this section the work limits shall include the road section plus a reasonable work area at topof cut and toe of fill as determined by the Engineer.
Where a pay item for turf establishment is not included in the contract, disturbed earth areas withinthe work limits shall be graded in a manner approved by the Engineer and seeded as specified for thestandard turf establishment item. The cost of this work shall be included in the prices bid for the variousitems in the contract and no separate payment shall be made therefor.
The Contractor shall obtain the written permission of the Engineer before beginning the use of any areawithin the right-of-way, but outside the work limits as noted in the preceding paragraph. Where deemednecessary by the Engineer, the Contractor shall submit, as part of the request for approval, a grading planshowing the proposed final grading of the area. If in the opinion of the Engineer, the area is not adaptableto acceptable restoration or if serious or permanent ecological damage is foreseeable, approval shall notbe given. This specification applies to areas such as, but not limited to, borrow pits or areas, spoil or wasteareas, haul roads, storage areas, batching areas, water points, equipment storage areas, shop areas andsimilar areas.
In general, the restoration shall include:A. The removal of all equipment and parts, junk, rubbish, excess materials and debris of all kind;B. Clean up as required, grading as shown if a grading plan has been prepared or graded so as to
blend into the surrounding ground forms to the satisfaction of the Engineer;C. Scarification of storage yards, batching sites, haul roads, etc., to the depth of the compaction as
determined by the Engineer;D. The removal of pavement or granular surfacing from temporary roads or areas as required by the
Engineer;E. The repair or removal of damaged trees and the fertilizing, turf establishment and mulching of the
areas as provided for in the contract or as directed by the Engineer.
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Areas within sight of the finished highway or any other highway will require particular attentioninsofar as the above features are concerned. It is the intent to have all such areas present a pleasingappearance to travelers on any highway.
All of this restoration shall be accomplished prior to acceptance of the contract except that work ofrestoring Contractor’s work areas (storage, batching, equipment, shop areas, etc.) may be done afterthe official acceptance of the contract but must be completed prior to the final release of the retainedfunds.
No payment will be made for any labor, material or equipment necessary for the restoration ofdisturbed areas which extend beyond the work limits. The cost of such work shall be included in theprice bid for the various items of the contract. All work shall be in accordance with the Department’sspecifications for similar items of work and/or as specified by the Engineer.
107-12 SOIL EROSION, WATER AND AIR POLLUTION ABATEMENT. The Contractor shallschedule and conduct its operations to minimize erosion of soils and to minimize silting and muddyingof streams, rivers, irrigation systems, impoundments (lakes, reservoirs, etc.) and lands adjacent to oraffected by the work. Construction of drainage facilities and performance of other contract work whichwill contribute to the control of erosion and sedimentation shall be carried out in conjunction withearthwork operations or as soon thereafter as practicable. The area of bare soil exposed at any one timeby construction operations shall be kept to a minimum.
At the preconstruction conference or prior to the start of the applicable construction, the Contractorshall submit to the Regional Director for acceptance schedules for accomplishment of temporary andpermanent erosion control work as are applicable for clearing and grubbing; grading; and bridges andother structures at watercourses; construction; and paving. In addition, it shall also submit foracceptance at the same time its proposed method of erosion control on haul roads and borrow pits andits plan for disposal of surplus excavated materials. No work shall be started until the erosion controlschedules and methods of operation have been accepted by the Regional Director. If conditions changeduring construction, the Contractor may be required to submit a revised schedule for acceptance asdirected by the Engineer.
Whenever the Contractor’s operations, carried out in accordance with the approved erosion controlschedule, result in a situation where temporary erosion control measures not shown on the plans, mustbe taken and these measures are approved or ordered by the Engineer, the Contractor shall conduct thiswork in accordance with the provisions in Section 209, “Temporary Soil Erosion and Water PollutionControl.” In carrying out the control measures under this subsection, the Contractor will be guided by,but not limited to, the following controls:
A. When borrow material is obtained from other than commercially operated sources, erosion ofthe borrow site shall be so controlled both during and after completion of the work that erosion willbe minimized and minimal sediment will enter waterways, impoundments or adjacent properties.Waste or spoil areas and construction roads shall be located, constructed and maintained in a mannerthat will minimize sediment entering waterways and impoundments.
The Contractor shall submit grading plans for all borrow pits or areas, spoil or waste areas tothe Engineer for acceptance prior to the start of work on, or the use of, such areas.
The grading plans shall indicate the sequence of operations, temporary slopes, and other factorswhich may have an influence on erosion control.
B. Frequent fording of live waterways will not be permitted; therefore, temporary bridges or otherstructures shall be used wherever an appreciable number of waterway crossings are necessary.Unless otherwise approved in writing by the Engineer, mechanized equipment shall not be operatedin live waterways.
C. When work areas or gravel pits are located in or adjacent to live waterways and impoundments,such areas shall be separated from the rest of the waterway or impoundment by a dike or otherbarrier to minimize sediment entering a flowing waterway or impoundment. Care shall be taken
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during the construction and removal of such barriers to minimize the muddying of a waterway orimpoundment.
D. All waterways shall be cleared as soon as practicable of falsework, piling, debris or otherobstructions placed during construction operations and which are not a part of the finished work.
Ditches which are filled, or partly inoperative shall be cleaned and made operative before theContractor stops work for any day, and shall be maintained in a condition satisfactory to the Engineerfor the duration of the contract.
E. Water from aggregate washing or other operations containing sediment shall be treated byfiltration, settling basin or other means sufficient to reduce the turbidity so as not to cause asubstantial visible contrast to natural conditions. Wash water or waste from concrete mixingoperations shall not be allowed to enter waterways or impoundments.
F. Pollutants such as fuels, lubricants, bitumens, raw sewage and other harmful materials shall notbe discharged into or near waterways and impoundments or into natural or manmade channels leadingthereto.
G. All applicable regulations of fish and wildlife agencies and statutes relating to the prevention andabatement of pollution shall be complied with in the performance of the contract.
H. Any material generated by any activity for the development, modification and construction of anytransportation facility shall not be burned on or off the contract site. This shall include but not belimited to land clearing material and demolition material. Such material shall hereinafter be referredto as disposable material in the clearing and grubbing specifications.
I. The Contractor shall not discharge dust into the atmosphere of such quantity, character or durationthat it unreasonably interferes with the comfortable enjoyment of life and property or is harmful toplants or animals.
No payment will be made for any labor, material or equipment needed for soil erosion, water andair pollution abatement as described above.
When it becomes necessary, the Engineer will inform the Contractor of unsatisfactory constructionprocedures and operations insofar as erosion control, water and air pollution are concerned. If theunsatisfactory construction procedures and operations are not corrected promptly, the Engineer maysuspend the performance of any or all of other construction until the unsatisfactory condition has beencorrected.
107-13 OPENING HIGHWAY TO TRAFFIC PRIOR TO ACCEPTANCE. When directed, inwriting by the Regional Director, the Contractor shall open to traffic any portion of new pavementand/or structures before final acceptance of the contract. Traffic on these portions of highway so openedto travel by the Regional Director, shall be maintained and protected in accordance with all theprovisions of the Maintenance and Protection of Traffic items in the contract.
Should the Contractor be dilatory in completing certain features of the work on the portion of thehighway directed to be opened, the Regional Director may order all or a portion of the said highwayopen to traffic; and in this event the Contractor shall not be relieved of its liability and responsibilityduring the period the work is so opened prior to final acceptance.
These provisions apply not only to the reconstruction of existing highways, but also to work on newlocations where traffic is not maintained during construction.
107-14 FURNISHING RIGHT-OF-WAY. The Department will secure all rights-of-way in advanceof construction. Any exception will be indicated prior to the award of the contract.
The Contractor shall not enter upon any parcel until the proper rights of entry have been obtained.The Contractor’s attention is directed to the fact that Permanent Easements (P.E.), Temporary
Easements (T.E.) and Temporary Occupancies (T.O.) are obtained by the Department for specific
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construction purposes. Contractors should not anticipate unlimited usage of such areas and must confineconstruction activities to such purposes as are specifically described in the ROW appropriation mapsand/or as shown on the plans unless separate agreements are made between the Contractor and thelandowner permitting other usage of such areas. Such limitations and related costs shall be reflected inthe bid prices.
SECTION 108 - PROSECUTION AND PROGRESS
108-01 START AND PROGRESS OF WORK.
A. The contractor shall within five days after date of commencement of work, or within such timeas determined by the Regional Director, prepare and submit to the Engineer for approval, a progressschedule showing the order in which the contractor proposes to carry on the work, the date on which itwill start the major items of work (including but not limited to excavation, drainage, paving, structures,mobilization, etc.) and the critical features (including procurement of materials, plant and equipment)and the contemplated dates for completing the same. The chart shall show the order in which thecontractor proposes to carry on the work. The chart shall be in a suitable scale to indicate graphicallythe total percentage of work scheduled to be completed at any time. The Department may require thatthe progress schedule, at a minimum, include the following items: (a) major work items and activitiesto be performed; (b) seasonal weather limitations; (c) time and money curve, and (d) phase duration ormilestone events, if applicable.
The purpose of this scheduling requirement is to ensure adequate planning and execution of the workand to evaluate the progress of the work.
Approval of the progress schedule shall not be construed to imply approval of any particular methodor sequence of construction or to relieve the Contractor of providing sufficient materials, equipment andlabor to guarantee completion of the project in accordance with the contract proposal, plans andspecifications. Such schedule may be utilized to facilitate the State's inspection and coordination ofconstruction activities. Approval shall not be construed to modify or amend the agreement or the dateof completion therein.
At the end of each payment estimate period, or at such intervals as directed by the Engineer, theDepartment may request that the Contractor shall (1) adjust the chart to reflect any changes in thecontract work, completion time, or both, (2) enter on the time and money curve the total percentage ofwork actually in place, and (3) submit three copies of the adjusted chart to the Engineer.
B. In the opinion of the Engineer, if the specified work falls behind that schedule, the Contractor shalltake such actions as necessary to improve its progress. If the Contractor is behind schedule any month,the Contractor shall indicate what measures it will take in the next thirty (30) days to put the work backon schedule so as to meet the contract completion date specified in the contract. The Contractor shallnot be entitled to any additional compensation unless provided for in other provisions of the contract onaccount of the requirements to put the work back on schedule. In preparing the revised schedule, theContractor shall consider increasing its work force, construction plant and equipment, or the numberof work shifts, etc. If the Engineer finds the proposed plan not acceptable, he/she may require theContractor to submit a new plan. The Department may request that progress meetings be held by theContractor at least on a monthly basis and be attended by the Engineer who shall monitor theContractor's progress and performance.
C. The Contractor shall employ and supply a sufficient force of workers, materials and equipmentand shall prosecute the work with such diligence so as to maintain the rate of progress indicated on theprogress schedule to prevent work stoppage and ensure completion of the project within the contracttime. Any additional or unanticipated costs or expense required to maintain the schedule shall be solelythe Contractor's obligation and shall not be charged to the Department unless provided for in otherprovisions of the contract.
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When requested by the Regional Director, the Contractor shall furnish weekly work schedulesindicating number of personnel, kind of equipment and location and nature of the work to be performed.
D. If the Contractor fails to submit a progress schedule within the time period described or anyrevision or update when required, the Engineer may withhold approval of progress payment estimatespursuant to Article 8 of the contract until such time as the Contractor submits the required progressschedule.
108-02 DATE OF COMPLETION AND CLOSING. All work to be performed under the contractshall be completed within the time stated in the Agreement for the project or within such extended timefor completion as may be granted by the Commissioner.
Whenever the Commissioner shall deem it necessary that any portion or certain portions of the workshall be progressed in any particular manner or that any such portion or portions of the work shall becompleted pursuant to a certain sequence or schedule and before the date of completion of the entirecontract, the Contractor shall punctually comply with the related instructions, dates, and periods of time.
If, during the progress of the work, it should become necessary, because of the lateness of theseason, to stop the work, then the Contractor shall open proper draining ditches, erect temporarystructures where necessary, prepare the project so that there will be a minimum interference withtraffic, set up and maintain a competent organization, as directed by the Engineer, to keep the contractin first class condition for traffic, and take every precaution to prevent any damage or unreasonabledeterioration of the work during the time it is closed.
108-03 FAILURE TO COMPLETE WORK ON TIME. For each calendar day that any work shallremain uncompleted after the contract date specified for the completion of the work provided for in thecontract, the amount per calendar day specified in Table 108-1, Schedule of Liquidated Damages, willbe deducted from any money due the Contractor, not as a penalty but as liquidated damages; providedhowever that due account shall be taken of any adjustment of the contract time for completion of thework as provided for elsewhere in the specifications.
Permitting the Contractor to continue and finish the work or any part of it after the time fixed for itscompletion or after the date to which the time for completion may have been extended, will in no wayoperate as a waiver on the part of the State of any of its rights under the contract.
The Commissioner of Transportation may waive such portions of the liquidated damages as mayaccrue if he/she deems the work is in such condition as to be safe and convenient for use by the travelingpublic.
The Contractor is responsible and liable for said liquidated damages even in the event that theContractor abandons the performance of the contract or the Contractor's employment is terminatedpursuant to the provisions of this contract.
The assessing of liquidated damages shall be in addition to engineering charges as provided for inExtension of Time, of these specifications.
Table 108-1 Schedule of Liquidated Damages
Original Contract Amount Liquidated Damages PerCalendar DayFrom More Than To and Including
$ 0 $ 25,000 $ 5025,000 50,000 7550,000 100,000 200100,000 500,000 300500,000 2,000,000 500
2,000,000 5,000,000 6005,000,000 10,000,000 80010,000,000 - 1,000
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NOTE: Liquidated Damages for Special very large contracts will be specified in the Contract Proposal.Liquidated Damages will not apply to Landscaping Contracts containing no on-road pay items.
108-04 EXTENSION OF TIME. When the work embraced in the contract is not completed on orbefore the date specified therein, all appropriate engineering and inspection expenses incurred by theState, its consultants and inspection agencies, and by railroad companies, from the scheduled contractcompletion date to the final date of completion of the work, may be charged to the Contractor. Whenassessed, the charges shall be deducted from any moneys due the Contractor.
Before assessing such charges, the Department will give due consideration to factors attributing tosuch delay due to extenuating circumstances beyond the control of the Contractor limited to thefollowing:
1. The work or the presence on the contract site of any third party, including but not limited to thatof other contractors or personnel employed by the State, by other public bodies, by railroad,transportation or utility companies or corporations, or by private enterprises, or any delay inprogressing such work.
2. The existence of any facility or appurtenance owned, operated, or maintained by any third party.3. The act, or failure to act, of any public or governmental body, including, but not limited to,
approvals, permits, restrictions, regulations or ordinances.4. Restraining orders, injunctions, or judgments issued by a court.5. Any industry-wide labor boycotts, strikes, picketing or similar situations, as differentiated from
jurisdictional disputes or labor actions affecting a single or small group of contractors orsuppliers.
6. Any industry-wide shortages of supplies or materials required by the contract work, asdifferentiated from delays in delivery by a specific or small group of suppliers.
7. Unusually severe storms of extended duration or impact, other than heavy storms or climaticconditions which could generally be anticipated by the bidders, as well as floods, droughts, tidalwaves, fires, hurricanes, earthquakes, landslides, or other catastrophes.
8. Determinations by the Department to open certain sections of the project to traffic before theentire work is completed.
9. Major unanticipated additional work which significantly affects the scheduled completion of thecontract.
10. Failure of the State to provide individual rights-of-way parcels for an extended period of timebeyond that indicated by the contract if such unavailability, as determined by the Commissioner,significantly affects the scheduled completion of the contract.
11. Situation covered by §109-16.
Such charges will be assessed, however, in cases where the work has been unduly delayed by theContractor because of unwarranted reasons, inefficient operation, or for any other reason for which theDepartment determines the Contractor to be liable. Reasonable time necessary for reviews by the Stateor its agents of shop drawings, for changes or additions to the work to meet field conditions which donot significantly affect the scheduled completion of the contract, delays incurred by seasonal and weatherlimitations, localized labor actions and shortages of supplies or materials, and other situations whichshould be anticipated are neither compensatory nor eligible for extensions of time without the assessmentof engineering and inspection charges, except as provided for under §109-16.
108-05 SUBLETTING OR ASSIGNING THE CONTRACT. The Contractor shall perform with itsown organization contract work amounting to not less than 50 percent of the original total contract price,except that any items designated by the State as “Specialty Items” may be performed by subcontract andthe amount of any such “Specialty Items” so performed may be deducted from the original contractprice before computing the amount of work required to be performed by the Contractor with its ownorganization. The contract amount upon which the 50 percent requirement is computed includes the costof materials and manufactured products which are to be purchased or produced by the Contractor underthe contract provisions.
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A. “Its own organization” shall be construed to include only workers employed and paid directly bythe Contractor and equipment owned or rented by it, with or without operators.
B. “Specialty Items” shall be construed to be limited to work that requires specialized knowledge,skill or equipment not ordinarily available in contracting organizations qualified to bid on the contractas a whole and in general are to be limited to minor components of the overall contract.
In the solicitation of subcontractors to perform the subcontract work in the performance of work underthis contract, prior to bidding or entering into any commitments for subcontracting or for purchase ofsupplies, materials or leasing of equipment, the Contractor shall refer to the following publications tosolicit participation of Disadvantaged/Minority/Women's Business Enterprises.
For federally aided contracts, the Contractor is required to consider subcontractors from the Directoryof Disadvantaged Business Enterprises, by the New York State Department of Transportation,administrated by the Office of Equal Opportunity Development and Compliance.
For non-federally aided contracts, the Contractor is required to consider subcontractors from theDirectory of Minority and Women's Business Enterprises, by the New York State Department ofEconomic Development.
Requests for Approval of Subcontractor, on the appropriate form, shall be submitted to the RegionalDirector.
All subcontracts shall be in writing and must contain all pertinent provisions of the prime contract inregard to Federal and State Laws and Regulations. No contract work is to be performed under asubcontract prior to receiving written approval of the Regional Director. No work may be performed bya subcontractor other than that specifically approved by the Regional Director. No work may be assignedby the subcontractor to a lower tier subcontractor. Violations of the foregoing may result in no paymentby the State for the related work.
See Project Title Sheet in the Proposal to ascertain federal aid involvement.
SECTION 109 - MEASUREMENT AND PAYMENT
109-01 ESTIMATES AND PAYMENT. In computing amounts in estimates or work done the unitprices will be used.
All estimates including the final, will be made for actual quantities of work performed and materialsplaced in accordance with the requirements contained in the specifications, contract plans and standardsheets (except as provided under §109-04, Partial Payments) as determined by the measurements of theEngineer, and the resulting quantities involved in any contract shall be accepted as final, conclusive andbinding upon the Contractor. For computation of the quantities of earthwork to be paid for under thevarious items of the contract, it is agreed that the planimeter shall be considered an instrument ofprecision, and quantities computed from areas obtained by its use shall be accepted by all parties heretoas accurate. Arithmetical computations, utilizing any type of computing device or machines includingelectronic computers, shall not be precluded by reference to the planimeter.
109-02 FINAL ADDITIONS OR DEDUCTIONS. Upon the completion of the required work as shownin the plans and specifications, should the final estimate of quantities show either an increase or decreasefrom the approximate estimate of quantities, then such variations will be computed at the unit prices anda final agreement will be made respectively adding or deducting this amount from the gross sum bid asmodified by Orders on Contract.
109-03 PAYMENTS ON CONTRACT. Payments to the Contractor for work satisfactorily performedwill be made monthly upon the percentage basis prescribed by Subdivision 7 §38 of the Highway Law. Nomonthly estimate will be rendered unless the value of the work done equals 5% of the Contract Amountor $1000, whichever is the lesser. Semi-monthly estimates may be rendered provided the value of the
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work performed in a two week interval is in excess of fifty thousand dollars or if, in the opinion of theCommissioner, it is to the best interests of the State to do so.
The attention of persons intending to make proposals is specifically called to the provisions of Section70 and 71 of the Lien Law and Section 1302-C of the Penal Law that apply to funds being received by aContractor for a public improvement. These provisions declare that the funds received by the Contractorshall constitute trust funds in the hands of the Contractor and shall be applied first to the payment of certainclaims.
No certificate approving or authorizing the first partial payment, or in the event there shall be no firstpartial payment, then no certificate approving or authorizing any final payment shall be made to a foreignContractor unless such Contractor shall have furnished satisfactory proof that all taxes due by suchContractor under the provisions of Articles 9, 9A, 16 and 16A of the tax law have been paid. Thecertificate of the State Tax Commission to the effect that all such taxes have been paid shall be conclusiveproof of the payment of such taxes.
The term “foreign Contractor” as used in the preceding paragraph means, in the case of an individual,a person who is not a resident of this State; and in the case of a partnership, one having one or morepartners who is not a resident of this State; and in the case of a corporation, one not organized under thelaws of this State.
109-04 PARTIAL PAYMENTS. Upon application by the contractor, and approval by the RegionalDirector, payments for the actual cost of certain materials may be made to the contractor prior toincorporation of such material into the permanent work. To be eligible for partial payment, materialsmust meet all of the following conditions:
1. Inclusion on the listing later in this section;2. Have a minimum material cost of five thousand dollars ($5,000.00);3. Be materials which will be incorporated into permanent work;4. Be in a condition which is ready for on-site installation without further fabrication or processing;5. Be delivered and stored at the site of the work or at a site and in a manner approved by the Regional
Director; and6. Be materials which will be stored a minimum of 60 days.
With application for partial payments, the contractor shall provide documentation as follows:
1. Bill(s) of sale or vouchers indicating the actual dollar value paid by the contractor for the materialsas stored;
2. Certification of Title showing that title to the materials, without encumbrances, is in the name of thecontractor and that title is warranted to the Department of Transportation;
3. Documented evidence of acceptability of the materials; and4. If the materials are stored on private property, a release and waiver covering such materials, and
providing access to the storage site, which release and waiver shall be executed by the property ownerin favor of the New York State Department of Transportation or its agents.
When applying for partial payment of products which are claimed to be in short supply or unique toan individual project, the contractor shall include documentation supporting that claim, to the satisfactionof the Regional Director.
The amount of partial payments shall not exceed the total invoice amount for stored materials, norshall the partial payment for materials relating to any contract work item exceed eighty five percent (85%)of the unit price for that item. The quantity of material for which payments are made shall not exceed theestimated contract quantity for that item.
The making of partial payments shall not be deemed to be a final acceptance of materials, nor shallit relieve the contractor of responsibility for such materials. The contractor shall be responsible forassuring that only those materials which comply with the specifications are incorporated into the project.
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All costs associated with handling, transportation and storage of materials; including any storage siterental, security, and weather protection; shall be borne by the contractor and included in the prices bid forcontract work. Any materials, other than those which are determined by the Regional Director to beunique to the project, which are not incorporated into the work shall remain the property of the contractor.Partial payments made for such unused materials shall be withdrawn with no further obligation by theState.
LIST OF MATERIALS
! Iron, Steel and Aluminum products (including all metal components of railings and bridgesuperstructures);
! Precast and Prestressed Concrete products;! Pipe and Underdrain products;! Concrete and Stone curb or masonry products;! Concrete, Steel and Timber piles and appurtenances;! Timber products;! Traffic Signal, Traffic Control, Signing and Lighting components;! Cable, Wire and Conduit;! Impact Attenuator components;! Materials in short supply; or! Materials manufactured to meet specific, unique requirements of the project (to be determined by the
Regional Director)
109-05 EXTRA FORCE ACCOUNT WORK, DISPUTE COMPENSATIONAND RECORDKEEPING.
A. CONTRACT ITEM CHARGES. The Department reserves the right to order changes inquantities of contract work items as is necessary to complete the project, in accord with the intent ofthe contract documents.
For contract work items that meet the criteria of a “major item”, consideration of contractadjustment shall be in accordance with Section 109-16 A.(3) Significant changes in the character ofwork.
For other than “major items”, payment shall be made at the contract unit bid price for all workless than, or equal to, twice the original contract quantity. Once this limit is exceeded, any additionalwork shall be considered to be new work, with payment determined in accordance with Section 109-05B.
B. NEW ITEM CHARGES
1. Agreed Prices. Agreed prices for new items of work or materials may be incorporated in theorder-on-contract as the Commissioner may deem them to be just and fair and beneficial to theState. These prices must be supported by a complete price analysis in the order-on-contractor orif approved by the Deputy Chief Engineer, Construction, by reference to the weighted average bidprices for similar type and quantity of work from other recent contracts. The price analysis willbe based on an estimated breakdown of charges listed in the following paragraph 2. “ForceAccount Charges,” unless some other basis is approved by the Commissioner.
2. Force Account Charges
a. Contractor Charges. Where there are no applicable unit prices for extra work ordered andagreed prices cannot be readily established or substantiated, the Contractor shall be paid theactual and reasonable cost of the following:
(1) Necessary Materials (including transportation to the site.) Materials is defined toinclude all products incorporated in the temporary or permanent work. The following
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items consumed in progressing the work are also considered to be materials for whichreimbursement with an allowance for profit and overhead will be made. These areoxygen, acetylene, propane, welding rods, grinding wheels, and saw blades. Separatereimbursement will not be made for all other products which may be consumed inprogressing the work and reimbursement for these items is considered to be included inthe reimbursement for overhead. Material used, if acquired by direct purchase, must bedocumented by bills or acceptable invoices. All prices on used material incorporated ineither temporary or permanent work shall be billed at a fair value, less than the originalcost when new. A reasonable salvage credit shall be given for substantial salvageablematerial recovered. Salvage value of substantial material recovered shall be determinedby the Engineer-in-Charge in coordination with the Contractor.
(2) Necessary labor costs including supplemental benefit payments. Each class of laborshall be billed separately at actual payroll rates. Average rates based on different classesof labor will not be accepted.
(3) Necessary payroll taxes and insurance payments and other such reasonable chargesthat are paid by the Contractor pursuant to existing written agreements with its employeesand/or labor organizations.
(4) Sales taxes, if any, required to be paid on materials not permanently incorporated intothe work under the order-on-contract.
(5) Equipment, truck and plant rentals, other than small tools. The Contractor shall bereimbursed for the number of hours that the equipment, truck or plant is actually used ona specified force account job. Equipment used by the Contractor shall be specificallydescribed by the manufacturer, model number and date of manufacture and be of suitablesize and suitable capacity required for the work to be performed. In the event theContractor elects to use equipment of a higher rental rate than the equipment suitable forthe work, payment will be made at the rate applicable to the suitable equipment. Theequipment actually used and the suitable equipment upon which the rental rate is basedwill be recorded as a part of the record for force account work. The Engineer shalldetermine the suitability of the equipment. If there is a differential in the rate of pay of theoperator of oversize or higher rate equipment, the rate paid for the operator will likewisebe related to the suitable equipment.
(a) Contractor Owned Equipment, Trucks and Plant--Contractor shall be reimbursedfor its ownership costs and for its operating costs for self owned equipment at therates listed in the Rental Rate Blue Book published by the Dataquest, Inc. applied inthe following manner as modified by the ’Rate Adjustment Table’.
[1.0] Ownership Costs--It is mutually understood that the rates for ownershipcosts reimburse the Contractor for all nonoperating costs of owning theequipment, truck or plant including depreciation on the original purchase,insurance, applicable taxes, interest on investment, storage, overhead, repairs,moving the equipment onto and away from the project or work site, and profit.Reimbursement will be made for the hours of actual use as described below:
[1.1] Less than 8 hours of actual use, the product of the actual number of hoursused or fraction thereof multiplied by the hourly rate, or the daily rate, whicheveris less
[1.2] Between 8 hours and 40 hours of actual use, the product of the actualnumber of hours used divided by 8 multiplied by the daily rate, or the weekly rate,whichever is less.
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[1.3] Between 40 and 176 hours of actual use, the product of the actual numberof hours used divided by 40 multiplied by the weekly rate, or the monthly rate,whichever is less.
[1.4] Over 176 hours of actual use, the product of the actual number of hoursused divided by 176 multiplied by the monthly rate.
[2.0] Operating Costs--the rate for operating costs includes fuel, lubricants,other operating expendibles, and preventative and field maintenance. Operatingcost does not include the operator’s wages. The Contractor shall be reimbursedthe product of the number of hours of actual use multiplied by the EstimatedOperating Cost/Hour.
[3.0] The rates used shall be those in effect at the time the force account workis done as reflected in the then current publication of the Rental Rate Blue Book.When force account type analysis are used to establish agreed prices inaccordance with Section B.l above, the rates used shall be those in effect whenthe agreed price is developed by the Contractor and submitted to theEngineer-in-Charge.
[4.0] The geographic Area Adjustment Factor shown on the map at thebeginning of each section of the Rental Rate Blue Book shall not be applied to theequipment rates subsequently listed in each section, and shall not be used as abasis for payment.
[5.0] In the event that a rate is not established in the Rental Rate Blue Book forConstruction Equipment for a particular piece of equipment, truck or plant, theCommissioner shall establish rates for ownership costs and operating costs forthat piece of equipment, truck or plant that is consistent with its cost and expectedlife.
(b) Rented Equipment, Trucks and Plant-
[1.0] In the event that the Contractor does not own a specific type of equipmentand must obtain it by rental, it shall be paid the actual rental rate for theequipment for the time that the equipment is used to accomplish the work or isrequired by the Engineer-in-Charge to be present, not to exceed the adjustedrental rate in the Rental Rate Blue Book, plus the reasonable cost of moving theequipment onto and away from the project site.
[2.0] The Contractor shall also be reimbursed for the operating cost of theequipment unless reflected in the rental price. Such operating cost shall bedetermined in the same manner as specified for Contractor Owned Equipmentabove.
[3.0] In the event that area practice dictates the rental of equipment with anoperator or fully fueled and maintained equipment, truck or plants, payment willbe made on the basis of an invoice for the rental of the equipment with anoperator, fully fueled and/or maintained equipment, trucks or plants including allcosts incidental to its use, including costs of moving to and from the site, providedthe rate is substantiated by area practice.
(c) Maximum Amount Payable--The maximum amount of reimbursement for theownership costs of Contractor owned or the rental cost of rented equipment, trucksor plant is limited to the original purchase price of the equipment, truck or plant forany force account work as listed in the Green Guide for Construction Equipment
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published by the Dataquest, Inc. In the specific event when the ownership or rentalreimbursement is limited by the original purchase price, the Contractor shall,nevertheless, be reimbursed for the operating Cost/Hour for each hour of actual use.
(6) Profit and Overhead. Profit and overhead cost shall be computed at 20 percent of thefollowing:
(a) Total Direct Labor Cost (actual hours worked multiplied by the basic hourly wagerate) plus supplemental benefits payments, payroll taxes, insurance payments andother labor related fringe benefit payments as defined in (2) and (3) above, but notincluding the overtime additive payments. Profit and overhead shall not be paid on thepremium portion of overtime.
(b) Total Cost of Materials as defined in (1) above including the cost of transportationto the project site.
(7) Overhead shall be defined to include the following:
(a) Premium on bond;
(b) Premium on insurance required by the State other than Workers CompensationInsurance, premium on public liability and property damage insurance, unemploymentinsurance, Federal old-age benefits, other payroll taxes and such reasonable chargesthat are paid by the Contractor pursuant to written agreement with its employee;
(c) All salary and expenses of executive officers, supervising officers or supervisingemployees;
(d) All clerical or stenographic employees;
(e) All charges for minor equipment such as small tools, including shovels, picks,axes, saws, bars, sledges, lanterns, jacks, cables, pails, wrenches, etc., and othermiscellaneous supplies and services;
(f) All drafting room accessories such as paper, tracing cloth, reproduction costs,etc.
b. Subcontractor Charges. When the work is performed by a subcontractor, the Contractorshall be paid the actual and reasonable cost of such subcontracted work as outlined above initems (1) through (5) under a. Contractor Charges, but profit and overhead shall be figuredat (25%) unless some other basis is approved by the Commissioner.
c. Service Charges. When work is performed by, and a fee is paid to, a service provider,the contractor shall be paid the actual cost of the service fee plus a maximum five percent(5%) for contract supervision, overhead and profit. This 5% shall be applied once to theservice fee regardless of the firm making direct payments to the service provider.
For the purposes of this section, “services” shall be considered to include professionalfees, testing fees, dumping fees, utility charges, and other specialized work which is notaccounted through labor, equipment and materials. For work reimbursed under force accountprocedures, service fee schedules shall be approved by the engineer.
C. FORCE ACCOUNT REPORT. Payment for force account work will be made on the basis ofthe following reports.
1. The Contractor will deliver to the Engineer-in-Charge a daily summary of FORCEACCOUNT WORK done on the contract. This summary will be delivered to the Engineer-in-Charge not later than closing time on the day following that for which the work is reported. The
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summary shall be on the appropriate form as described by MURK. The Engineer-in-Charge willsupply the forms.
The summary shall contain:
a. A list of materials used indicating the amount and nature of each material. The cost (ifknown) should also be included. This must be documented later by proper receipts.
b. A list of equipment used indicating the number of hours used and the kind, type, and sizeof equipment.
c. A list of personnel by name, including the hours worked, and labor classification at whichthey were used on the force account work and the location by station or station of the workproposed.
d. A statement of the work accomplished by force account for that day.
e. This summary will be dated and signed by the Contractor’s authorized representative andthe Engineer-in-Charge.
f. The contract number and other identification as well as the name of the Contractor shallappear on the statement.
g. The Engineer-in-Charge will make any notations, remarks or comments on this form thatmay assist in final payments.
2. Within 5 calendar days after the end of each pay period, the Contractor shall deliver to theEngineer-in-Charge a FORCE ACCOUNT SUMMARY OF LABOR used on the work whichshall include the name, hourly rate of pay, hours worked, fringe benefits, and/or other items asshown on the actual payroll.
3. On completion of the specific force account work, the Contractor shall within 10 calendardays, deliver to the Engineer-in-Charge a Force Account Summation wherein all materials,equipment, and labor charges are shown and totaled together with such other expenditures as areconcerned with the force account item. This summation shall be dated and signed by theContractor’s authorized representative and the Engineer-in-Charge.
4. In the event the contractor fails to deliver the required force account documentation to the EICwithin the time period specified in §109-05, subsection c, of these General specifications, and asa result the Order-on-Contract for the force account work is not fully approved at the date of finalacceptance, the number of calendar days of the time period between final acceptance and theissuance of this force account Order-on-Contract, attributable to the Contractor’s late forceaccount submissions will extend the required payment data by an equal period of time.
D. TIME RELATED DISPUTE COMPENSATION.
1. As limited by Article 13 of the contract and Section 109-16, the following elements of damage,and only the following elements, will be recoverable by the Contractor as “time related disputedamages” provided that they are actual and reasonable:
a. Documented additional or escalated job site labor expenses;
b. Documented additional or escalated costs for materials;
c. Documented additional or escalated equipment costs less appropriate credits, as such aredetermined in accordance with this Section;
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d. Documented costs of extended job-site overhead (field costs, including field supervision);job-site overhead would include job superintendent, office engineer and clerical staff, butwould not include working foremen;
e. An additional 10 percent of the total of items a, b, c and d for home office overhead and10% for profit thereon except for the differing site conditions or significant change incharacter of the work clauses (§109-16 A (1) and (3)) apply, no anticipated profits shall beallowed and where the suspension of work clause (§109-16 A (2)) applies, no profit oranticipated profits shall be allowed;
f. Documented additional or escalated insurance and bond costs;
g. When the work is performed by a subcontractor, the Contractor shall be paid the actualand reasonable cost of such subcontracted work as outlined above in paragraphs 1(a) through1(d) and the Contractor’s main office overhead and profit shall be figured at 15% and 10%respectively, except for where the differing site conditions or significant change in characterof the work clauses (§109-16 A (1) and (3)) apply, no anticipated profits shall be allowed andwhere the suspension of work clause (§109-16 A (2)) applies, no profit or anticipated profitsshall be allowed;
h. The phrase “additional expenses” shall include expenses above or below those normallyincurred in the performance of the work, less any appropriate credit. The phrase “escalationexpenses” shall include unanticipated higher or lower costs and expenses attributable, withappropriate credits, to the performance of work or portions of work in a different time periodthan that which was indicated on the Department approved progress schedule.
2. Equipment, truck or plant rentals, other than small tools:
a. Equipment used by the Contractor shall be specifically described by the manufacturer,model number and date of manufacture and be of suitable size and capacity required for thework to be performed. In the event the Contractor elects to use equipment of a higher costthan the equipment suitable for the work, payment will be made at the actual cost rateapplicable to the suitable equipment unless otherwise provided for in this section. TheEngineer shall determine the suitability of equipment.
For purposes of computing Contractor’s self-owned equipment, truck or plant costs, therate used shall be based on the rate listed in the "Rental Rate Blue Book" published byDataquest, Inc., with the appropriate adjustments noted in §109-05 B (2) of these StandardSpecifications.
b. In the event that a rate is not established in the "Rental Rate Blue Book" for ConstructionEquipment for a particular piece of equipment, truck or plant, the Commissioner shallestablish a rate for ownership costs and operating costs for that piece of equipment, truck orplant that is consistent with its cost and expected life.
c. The Contractor shall be reimbursed for its operating costs for self-owned equipment basedon actual cost data. Operating costs shall include fuel, lubricants, other operating expendablesand preventive and field maintenance. Operating costs do not include the operator’s wages.In the event, after documented and demonstrated due diligence, actual operating costs are notascertainable, then the Contractor will be compensated utilizing not more than 50% of theoperating costs set forth in the “Rental Rate Blue Book” and the Contractor shall bereimbursed the product of the number of hours of actual use multiplied by the operating costper hour.
d. The rate for idle equipment and stand-by equipment, shall be based upon the rate ofdepreciation specified in the Contractor’s books and records, or 50% of the rate set forth in
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the “Rental Rate Blue Book,” published by Dataquest, Inc. with the appropriate adjustmentsnoted in §109-05 of these Standard Specifications, whichever is greater. In the event theequipment is fully depreciated, the Commissioner will pay the actual ownership costs basedupon Department audit of the Contractor’s books and records.
e. The maximum amount of reimbursement for the ownership costs of Contractor owned orthe rental cost of rented equipment, trucks or plant is limited to the original purchase price ofthe equipment, truck or plant as listed in the "Green Guide for Construction Equipment"published by the Dataquest, Inc. In the specific event when the ownership or rentalreimbursement is limited by the original purchase price, the Contractor shall, nevertheless,be reimbursed for the operating cost per hour for each hour of actual use.
f. For purposes of rented equipment, the provisions of §109-05 B, New Item Charges, arecontrolling.
3. The parties agree that, in any dispute for time related damages, the Department will have noliability for the following items and the Contractor further agrees it shall make no claim for thefollowing items:
a. Profit, in excess of that provided in §109-05 D (1)(e) and (g);
b. Loss of anticipated or unanticipated profit;
c. Labor inefficiencies and loss of productivity;
d. Home office overhead in excess of that provided in §109-05 D (1)(e) and (g);
e. Consequential damages, including but not limited to interest on monies in dispute, includinginterest which is paid on such monies, loss of bonding capacity, bidding opportunities, orinterest on retainage or investment, or any resultant insolvency;
f. Indirect costs or expenses of any nature;
g. Direct or indirect costs attributable to performance of work where the Contractor,because of situations or conditions within its control, has not progressed in a mannersatisfactory to the Engineer.
h. Attorneys fees, or claims preparation expenses.
4. Remedies Exclusive: With respect to time related dispute compensation provisions, theparties agree that the State shall have no liability to the Contractor for expenses, costs, or itemsof damage other than those which are specifically identified as payable under §109-05 D. In theevent any legal action is instituted against the State by the Contractor on account of any suchdispute for additional compensation, whether on account of time related dispute, delay,acceleration, breach of contract, or otherwise, the Contractor agrees that the State’s liability willbe limited to those items which are specifically identified as compensable under §109-05 D. TheContractor further agrees to make no claim for expenses other than those which are specificallyidentified as compensable under §109-05 D. Nothing in this Section is intended to create anyliability of the State not existing at common law or pursuant to the terms of this contract or toprevent the Contractor from filing a claim in the New York State Court of Claims.
E. REQUIRED CONTENT OF DISPUTE SUBMISSION. All disputes must be submitted inwriting to the Engineer, and must be in sufficient detail to enable the Engineer to ascertain the basisand the amount of each dispute. If requested and as a minimum, the following information must beprovided when such information is ascertainable by the Contractor:
1. Time Related Dispute Submissions.
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a. A description of the operations that were delayed, the reasons for the delay, how theywere delayed, including the report of all scheduling experts or other consultants, if any.
b. An as-built chart, “Critical Path Method” scheme or other diagram or chart depicting ingraphic form how the operations were or are presumed to be adversely affected.
c. The date on which actions resulting in the dispute occurred or conditions resulting in thedispute became evident.
d. A copy of the “notice of dispute” required as per §105-14 (A)(3) for the specific disputeby the Contractor.
e. To the extent known, the name, function, and activity of each Department official, oremployee or agent, involved in, or knowledgeable about facts that gave rise to such dispute.
f. The name, function, and activity of each Contractor or subcontractor official, oremployee, involved in, or knowledgeable about facts that gave rise to such dispute.
g. The identification of any pertinent documents, and the substance of any material oralcommunication relating to such dispute.
h. A statement as to whether the additional compensation or extension of time if requestedis based on the provisions of the contract or is an alleged breach of contract.
i. The amount of additional compensation sought and a breakdown of that amount into thecategories specified as payable under §109-05(D) above.
j. If an extension of time is also requested, the specific days for which it is sought and thebasis for such request as determined by an analysis of the construction progress schedule.
2. For Other Disputes Including Acceleration Disputes.
a. A detailed factual statement of the dispute providing all necessary dates, locations anditems of work affected by the dispute.
b. The date on which actions resulting in the dispute occurred or conditions resulting in thedispute became evident.
c. A copy of the “notice of dispute” required for the specific dispute by the contract pursuantto §105-14 B or C.
d. The name, function, and activity of each Department official or employee or agentinvolved in, or knowledgeable about facts that gave rise to such dispute.
e. The name, function and activity of each Contractor or subcontractor official, employeeor agent involved in or knowledgeable about facts that gave rise to such dispute.
f. The specific provisions of the contract which support the dispute and a statement of thereasons why such provisions support the dispute.
g. The identification of any pertinent documents and the substance of any material oralcommunications relating to such dispute.
h. A statement as to whether the additional compensation or extension of time requested isbased on the provisions of the contract or an alleged breach of contract.
i. If an extension of time is also requested, the specific days for which it is sought and thebasis for such request as determined by an analysis of the construction schedule.
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j. The amount of additional compensation sought and a breakdown of that amount shallconform to the requirements of §109-05(B) except for acceleration disputes which shallconform to the requirements and categories specified in §109-05(D) above.
F. REQUIRED CERTIFICATION OF DISPUTES. When submitting any dispute over $50,000, theContractor must certify in writing, under oath and in accordance with the formalities required by thecontract, as to the following:
1. That supportive data is accurate and complete to the Contractor’s best knowledge and belief;
2. That the amount of the dispute and the dispute itself accurately reflects what the Contractorin good faith believes to be the Department’s liability;
3. If the Contractor is an individual, the certification shall be executed by that individual.
If the Contractor is not an individual, the certification shall be executed by:
(1) Senior company official in charge at the Contractor’s plant or location involved; or
(2) An officer or general partner of the Contractor having overall responsibility for the conductof the Contractor’s affairs.
109-06 PROGRESS PAYMENTS. Unless otherwise specified in a particular pay item, no paymentwill be made for an item of work until its completion in accordance with the specification.
109-07 PAYMENT OF ESTIMATES. The provisions of §102-17, Sample Form of Agreement, Article7, shall apply.
109-08 NO ESTIMATE ON CONTRACTOR’S NON-COMPLIANCE. The provisions of §102-17,Sample Form of Agreement, Article 8, shall apply.
109-09 FINAL ACCEPTANCE OF WORK. The provisions of §102-17, Sample Form of Agreement,Article 9, shall apply.
109-10 UNCOMPLETED WORK AGREEMENT. Whenever a contract shall, in the judgment of theCommissioner of Transportation, be substantially completed and in his/her judgment the withholding ofthe retained percentage would be an injustice to the Contractor, the Commissioner of Transportation may,provided the Regional Director certifies that the essential items in the contract have been completed inaccordance with the terms of the contract and the provisions of §109-11, Final Agreement, direct theRegional Director to include in the final account such uncompleted items and pay therefor at the itemprices in the contract upon the Contractor’s depositing with the Commissioner of Transportation a certifiedcheck drawn upon a legally incorporated bank or trust company equal to at least double the value of suchuncompleted work or securities as are listed in subdivision 3 of section 139 of the State Finance Law, equalto at least double the value of such uncompleted work. The deposit may be used by the Commissioner ofTransportation to complete the uncompleted portion of the contract and shall be returned to the Contractorif it completes the uncompleted portions within a specified number of working days after it has beennotified to proceed with the work.
109-11 FINAL AGREEMENT. The final agreement will not be drawn and finalized until all workrequired under the contract has been satisfactorily completed, all claims presented and all accounts forextra work and materials have been rendered, considered, and if agreed to, made a part of such finalagreement. Work remaining to be accomplished under an uncompleted work agreement, shall beconsidered as completed work for the purpose of the final agreement.
The Commissioner, or his/her designee, will approve a final agreement as prepared and approved bythe Regional Director, less any and all deductions authorized to be made by the Commissioner under thecontract. Payment pursuant to such final agreement less any deductions authorized to be made by theComptroller shall constitute the final payment to the Contractor.
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109 - 12 (VACANT)
109-13 FINAL PAYMENT. The provisions of §102-17, Sample Form of Agreement, Article 10, shallapply.
109-14 ACCEPTANCE OF FINAL PAYMENT. The acceptance by the Contractor, or by anyoneclaiming by or through it, of the final payment shall constitute and operate as a release to the State fromany and all claims of any liability to the Contractor for anything theretofore done or furnished for orrelating to or arising out of the work done thereunder, and for any prior act, neglect, or default on the partof the State or any of its officers, agents, or employees unless the Contractor serves a detailed and verifiedstatement of claim upon the Department of Transportation not later than 40 days after the mailing of suchfinal payment. Such statement shall specify the items and details upon which the claim will be based andany such claim shall be limited to such items. Should the Contractor refuse to accept the final payment astendered by the Comptroller, it shall constitute a waiver of any right to interest thereon.
109-15 CONTRACTOR’S COST RECORDS. The Contractor shall maintain records of all requiredpayrolls, and of the details that comprise its total cost pursuant to any of the provisions under §104-03,Contingencies, Extra Work, Deductions, and all records maintained pursuant to §105-14, DisputeResolution and Disputed Work Provisions and §109-05, Extra Work, Force Account Work, DisputeCompensation and Recordkeeping, and it shall, at any time within six years following the date of finalpayment of the project, make such records available, upon request therefor, to the Department for reviewand audit, if deemed necessary by the Commissioner. In case all or a part of such records are not madeso available, the Contractor understands and agrees that any items not supported by reason of suchunavailability of the records shall be disallowed, or if payment therefor has already been made, theContractor shall, upon demand in writing by the Commissioner, refund to the Department the amount sodisallowed.
109-16 DIFFERING SITE CONDITIONS, SUSPENSIONS OF WORK, SIGNIFICANT CHANGESIN THE CHARACTER OF THE WORK PROVISIONS. The following provisions shall apply to thiscontract:
A.(1) Differing site conditions.
(i) During the progress of the work, if subsurface or latent physical conditions areencountered at the site differing materially from those indicated in the contract or if unknownphysical conditions of an unusual nature, differing materially from those ordinarilyencountered and generally recognized as inherent in the work provided for in the contract, areencountered at the site, the party discovering such conditions shall promptly notify the otherparty in writing of the specific differing conditions before the site is disturbed and before theaffected work is performed. (ii) Upon written notification, the Engineer will investigate the conditions and if it isdetermined that the conditions materially differ and cause an increase or decrease in the costor time required for the performance of any work under the contract, an adjustment,excluding anticipated profits, will be made and the contract modified in writing accordingly.The Engineer will notify the Contractor of the determination whether or not an adjustment ofthe contract is warranted. (iii) No contract adjustment which results in a benefit to the Contractor will be allowedunless the Contractor has provided the required written notice.(iv) No contract adjustment will be allowed under this clause for any effects caused onunchanged work. (v) The aforesaid differing site condition clause (§109-16 A(1)) shall be governed by the noticeprovisions set forth above, and the recordkeeping and other requirements of §105-14, Dispute
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Resolution and Disputed Work Provisions, and additional compensation via order oncontract(s), if any, shall be made pursuant to §109-05 B, New Item Charges, 1 (Agreed Price)or 2 (Force Account Charges) and E. Required Content of Dispute Submission (2) and F,Required Certification of Dispute. However, the equipment compensation provisions shall begoverned and controlled by the provisions of §109-05 D (2).
(2) Suspensions of work ordered by the Engineer.
(i) If the performance of all or any portion of the work is suspended or delayed by theEngineer in writing for an unreasonable period of time (not originally anticipated, customary,or inherent to the construction industry) and the Contractor believes that additionalcompensation and/or contract time is due as a result of such suspension or delay, theContractor shall submit to the Engineer in writing a request for adjustment within 7 calendardays of receipt of the notice to resume work. The request shall set forth the reasons andsupport for such adjustment. (ii) Upon receipt, the Engineer will evaluate the Contractor's request. If the Engineer agreesthat the cost and/or time required for the performance of the contract has increased as a resultof such suspension and the suspension was caused by conditions beyond the control of and notthe fault of the Contractor, its suppliers, or subcontractors at any approved tier, and notcaused by weather, the Engineer will make an adjustment (excluding profit) and modify thecontract in writing accordingly. The Contractor will be notified of the Engineer'sdetermination whether or not an adjustment of the contract is warranted.(iii) No contract adjustment will be allowed unless the Contractor has submitted therequest for adjustment within the time prescribed.(iv) No contract adjustment will be allowed under this clause to the extent thatperformance would have been suspended or delayed by any other cause, or for which anadjustment is provided for or excluded under any other term or condition of this contract. (v) The aforesaid suspension of work clause (§109-16(A)(2)) shall be governed by the noticeprovisions set forth above, and the recordkeeping and other requirements of §105-14, DisputeResolution and Disputed Work Provisions, and additional compensation via order oncontract(s), if any, shall be made pursuant to §109-05 D, Time Related Dispute Compensation,E., Required Content of Dispute Submission and F, Required Certification of Dispute.
(3) Significant changes in the character of work.
(i) The Engineer reserves the right to make, in writing, at any time during the work, suchchanges in quantities and such alterations in the work as are necessary to satisfactorilycomplete the project. Such changes in quantities and alterations shall not invalidate thecontract nor release the surety, and the Contractor agrees to perform the work as altered. (ii) If the alterations or changes in quantities significantly change the character of the workunder the contract, whether such alterations or changes are in themselves significant changesto the character of the work, or by affecting other work, cause such other work to becomesignificantly different in character, an adjustment excluding anticipated profit, will be madeto the contract. The basis for the adjustment shall be agreed upon prior to the performanceof the work. If a basis cannot be agreed upon, then an adjustment will be made either for oragainst the Contractor in such amount as the Engineer may determine to be fair and equitable.
(iii) If the alterations or changes in quantities do not significantly change the character ofthe work to be performed under the contract, the altered work will be paid for as providedelsewhere in the contract.(iv) The term “significant change” shall be construed to apply only to the followingcircumstances:
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(A) When the character of the work as altered differs materially in kind or naturefrom that involved or included in the original proposed construction; or(B) When a major item of work, as defined elsewhere in the contract, is increasedin 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 125percent of original contract item quantity, or in case of a decrease below 75 percent, tothe actual amount of work performed. (C) The term “major item” of work shall mean any item for which the original bidprice multiplied by the original bid quantity exceeds $50,000 or 2% of the total contractbid price, whichever is less.(D) Certain items of work may be <fixed quantity’ items. That is, payment will berestricted to the quantity stated in the Estimate of Quantities. If, during the progress of thework the stated quantity is determined to be in error, the terms of subsection 109-16A (3)(iv) (B) shall apply with the following alterations:
1. The major item of work requirement shall not apply.2. Significant change shall be defined as an actual quantity in excess of 125 percentof the stated quantity, or less than 75 percent of the stated quantity.
(v) The aforesaid significant change in character of work clause (§109-16(A)(3)) shall begoverned by the notice, recordkeeping and other requirements of §105-14, Dispute Resolutionand Disputed Work Provisions, and additional compensation via order on contract(s) shall bemade for time related costs, if any, pursuant to §109-05 D and E and F and for increasedcosts, if any, pursuant to §109-05 B, New Item Charges, 1 (Agreed Price) or 2 (ForceAccount Charges) and E (2), Required Content of Dispute Submission and F, RequiredCertification of Dispute,but, the equipment compensation shall be governed and controlled bythe provisions of §109-05 D (2).
(vi) With respect to the aforesaid significant change in the character of work clause (Section109-16 (3) (iv) (A) above), the contractor or the State, as the case may be, must make writtennotification to the other party of the existence of the apparent 'significant change' if that partywishes to adjust the contract price or time of performance. Such notice shall be given withinten (10) days of the time at which the party had, or should have had, knowledge of an event,matter or occurrence which results in a significant change in the character of the work. Workwhich is substantially completed prior to the issuance of notice may not be considered forcontract adjustment.
(vii) With respect to the aforesaid significant changes involving an increase or decrease in amajor item (Section 109-16 (3) (iv) (B) above), the contractor or the State, as the case maybe, must make written notification to the other party of the “significant change” in quantity ofa major item if that party wishes to adjust the contract price or time of performance. Suchnotice shall be given within 10 days of knowledge of the change. Knowledge of a significantchange in quantity could result from: receipt of a written change order (approved orunapproved) or a letter indicating a change in the contract work, review of plan details andestimates, review of work completed or progress payment quantities, or a combination of theabove. Timely issuance of notice shall be a necessary requirement for consideration ofcontract adjustment as provided in this section.
B. If the Department determines that, as a result of the aforesaid Differing site condition, Suspensionof work and Significant changes in character of work clauses, an adjustment in the contract price iswarranted, the Department shall first attempt to arrive at an agreement with the contractor. Ifunsuccessful, the Department will make such adjustments to the contract as is determined to be fairand equitable utilizing Department estimates. When the Department and the contractor, are not in
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agreement regarding contract adjustment, the work shall be treated as Disputed Work, requiring dailyrecordkeeping in accordance with the provisions of Section 109-05 C. Force Account Report.
C. If any of the notice or other provisions of §109-16(A) are in conflict with any other of theprovisions of the Standard Specifications, then the provisions of §109-16(A) shall prevail and takeprecedence and be of force over and against any said conflicting provision of said contract.
D. Solely for purposes of the aforesaid §109-16(A)(1),(2) and (3), the Engineer is defined as theRegional Construction Engineer. Solely for purposes of disputes as to records pursuant to §105-14(A)(4), the Engineer shall be the Engineer-in-Charge.
SECTION 110 - MISCELLANEOUS REQUIREMENTS
110-01 TIMELY PAYMENT. Section 179 of the State Finance Law requires the Department to makefinal payment on highway construction projects within seventy five (75) days after acceptance by theCommissioner. If the Department unjustifiably fails to pay the final payment within the prescribed seventyfive (75) calendar days, it may be required to pay interest for each day in excess of the seventy five (75)calendar days.
In order to enable the Department of Transportation to process the final payment properly andexpeditiously the bidders are advised that all of the following documents and submission, as the same maybe appropriate to this contract, are considered to be necessary to enable the processing of the finalpayment as described above.
Outstanding Claims and DisputesExtra Work Cost AccountsFinal Labor Affidavits (Forms AC 2947 & AC 2949)Approved Original ReproduciblesMaterial CertificationsCertified PayrollsFHWA Record of Materials, Supplies and Labor (Form FHWA-47)Tax Clearance for “Foreign” (out of State) Contractors, Corporations or entitiesDBE Subcontractors Payment Report (Form AAP-21)
The bidders are advised that the above list is general in nature, that every item may not be applicableto the contract and that other documents and submissions not shown above may be required to enable theprocessing of the final payment. It should be noted that any time taken beyond the date of final acceptanceto satisfy or furnish the above information shall extend the required payment date by an equal period oftime.
The Department of Transportation, in accordance with §179 of the State Finance Law, has determinedthat a thirty (30) calendar day inspection period, after final acceptance of the project, is required for finalpayments after which time the seventy five (75) day interest-free processing period will commence.
110-02 VALUE ENGINEERING.
A. Purpose and Scope It is the intent of this provision to share with the Contractor any cost savingswhich may be generated on this contract as a result of a proposal or proposals offered by theContractor and approved by the Department. The purpose is to encourage the use of Contractor'singenuity and experience in arriving at alternative, lower cost construction than that reflected in thecontract documents by the sharing of savings resulting therefrom.
The value engineering proposals contemplated are those that could produce a savings to theDepartment without, in the sole judgement of the Department, impairing essential functions andcharacteristics of the facility including but not limited to service life, economy of operation, ease ofmaintenance, desired appearance and safety.
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B. Submittal of Proposal As a minimum, the following materials and information shall besubmitted with each proposal plus any additional information requested by the Department.
1. A statement that the proposal is submitted as a value engineering proposal. 2. A description of the difference between the existing contract requirements and the proposedchange, and the comparative advantages and disadvantages of each, including considerations ofservice life, economy of operation, ease of maintenance, desired appearance and safety.3. Complete plans and specifications showing the proposed revisions relative to the originalcontract features and requirements. 4. A complete cost analysis indicating the Final Estimate costs and quantities to be replacedby the proposal, the new costs and quantities generated by the proposal, and the cost effects ofthe proposed changes on operational, maintenance and other considerations.
5. A statement of the time by which an order-on-contract adopting the proposal must beexecuted so as to obtain the maximum cost reduction during the remainder of the contract. Thisdate must be selected to allow the Department ample time for review and processing an orderon contract, but without affecting the Contractor's schedule. Should the Department find thatinsufficient time is available for review and processing, it may reject the proposal solely on suchbasis. If the Department fails to respond to the proposal by the date specified, the Contractorshall consider the proposal to be rejected and shall have no claims against the State as a resultthereof. 6. A statement as to the effect the proposal will have on the time for completion of thecontract. 7. A description of any previous use or testing of the proposal on another Department projector elsewhere and the conditions and results therewith. If the proposal was previously submittedon another Department project, indicate the date, contract number, and the action taken by theDepartment.
C. Conditions Value engineering proposals will not be considered in determining the lowestresponsible bidder. Value engineering proposals will be considered after award and only when allof the following conditions are met:
1. The Contractor is cautioned not to base any bid prices on the anticipated approval of a valueengineering proposal and to recognize that such proposal may be rejected and that it will berequired to complete the contract in accordance with the plans and specifications at the pricesbid.2. All proposals, whether or not approved by the Department for use in this contract, applyonly to the on-going contracts or contracts referenced in the proposal and become the propertyof the Department and shall contain no restrictions imposed by the Contractor on their use ordisclosure. The Department shall have the right to use, duplicate and disclose in whole or inpart any data necessary for the utilization of the proposal. The Department retains the right toutilize any accepted proposal or part thereof on any other or subsequent project without anyobligation to the Contractor submitting the same.
3. If the Department already has under consideration certain revisions to the contract or hasapproved certain changes in specifications or standards for general use which are subsequentlyincorporated in a value engineering proposal submitted by the Contractor, the Department shallreject the Contractor's proposal and proceed with such revisions if it so desires without anyobligation to the Contractor.4. The Contractor shall have no claim against the State for any costs or delays due to theDepartment's rejection of a value engineering proposal, including but not limited to developmentcosts, anticipated profits or increased material or labor costs resulting from delays in the reviewof such proposal.5. The Department shall be the sole judge as to whether a proposal qualifies for considerationand evaluation. It may reject any proposal that requires excessive time or costs for review,
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evaluation and/or investigations, or which is not consistent with the Department's design policiesand basic design criteria for the project.6. The Engineer may reject all or any portion of work performed pursuant to an approvedvalue engineering proposal if he/she determines that unsatisfactory results are being obtained.The Engineer may direct the removal of such rejected work and require the Contractor toproceed in accordance with the original contract requirements without reimbursement for anywork performed under the proposal, or for its removal. Where modifications to the valueengineering proposal are approved in order to adjust to field or other conditions, reimbursementwill be limited to the total amount payable for the work at the contract bid prices as if it wereconstructed in accordance with the original contract requirements. Such rejection or limitationof reimbursement shall not constitute the basis of any claim against the State for delay or for anyother costs.7. The proposal shall not be experimental in nature but shall have been proven to theDepartment's satisfaction under similar or acceptable conditions on another Department projector at another location acceptable to the Department. 8. Proposals shall be considered only if equivalent options are not already provided in thecontract documents. 9. The savings generated by the proposal must be of sufficient significance, in the solejudgement of the Department, to warrant review and processing. 10. A proposal changing the types and/or thickness of the pavement structure will not beconsidered. 11. If additional information is needed to evaluate proposals, this information must be providedin a timely manner. Failure to do so will result in rejection of the proposal. Such additionalinformation could include, where design changes are proposed, results of field investigations andsurveys, design computations, and field change sheets.
D. Payment If the value engineering proposal is accepted by the Department, the changes andpayment therefore will be authorized via an order on contract. Reimbursement to the Contractorwill be made as follows:
1. The changes will be incorporated into the contract via changes in the quantities of unit biditems, new agreed price items or by force account, as appropriate, in accordance with theStandard Specifications. 2. The cost of the revised work as determined from the aforementioned changes in quantities,new items or force account will be paid directly. In addition to such payment, the Departmentwill pay to the Contractor, via a separate item, 50 percent of the savings to the Department asreflected by the difference between the above payment and the cost of the related constructionrequired by the original contract plans and specifications computed at contract bid prices. 3. The Contractor's costs for development, design and implementation of the valueengineering proposal are not eligible for reimbursement. 4. The Contractor may submit value engineering proposals for an approved subcontractor,provided that reimbursement is made by the Department to the Contractor and that the termsof the pass through to the subcontractor are satisfactorily negotiated and accepted before theproposal is submitted to the Department. Subcontractors may not submit a proposal exceptthrough the prime contractor.
110-03 OVERTIME DISPENSATION REQUIREMENTS FOR NON-FEDERALLY AIDEDCONTRACTS. (See Project Title Sheet in the Proposal to ascertain federal aidinvolvement). All bidders, in submitting their bids, should base their bids and work progression on theassumption that Overtime Dispensation pursuant to Article 8 of the New York State Labor Law, for anyworkers, laborers, and mechanics to work more than 8 hours in any one calendar day or more than fivedays in any one week will not be granted for any operation for the contract duration. Subsequent toaward, where the contract proposal has imposed specific scheduling and/or phasing requirements or
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where it is determined by the Department to be in the best interest of the public, the Department mayprocess, for approval by the New York State Department of Labor, requests for Overtime Dispensationon certain specific operations and, in the event approval is granted, there shall be no adjustment thereforin any bid prices.
110-04 APPROVAL TO SUBCONTRACT ON FEDERALLY AIDED CONTRACTS (See ProjectTitle Sheet in the Proposal to ascertain federal aid involvement). The New York StateDepartment of Transportation (NYSDOT), Office of Equal Opportunity Development and Compliance(EODC) requires on the AAPHC-89 Approval to Subcontract for all federally funded contracts, co-signature of Disadvantaged Business Enterprise (DBE) subcontractors for recommendation of award.
Lack of DBE co-signature will delay award of the contract.
110-05 COMMENCEMENT OF ACTIONS ON STATE PUBLIC WORKS CONTRACTS. Inaccordance with Section 138-a of the State Finance Law, the time within which an action on thiscontract, against the Contractor, must be commenced shall be computed from the date of completionof the physical work. The Contractor may notify the New York State Department of Transportation inwriting that such physical work has been completed by specifying a completion date, which date shallbe no more than 30 days previous to the date of such notice, in which case the completion date set forthin such notice shall be deemed to be the date of completion of the physical work unless the New YorkState Department of Transportation, within 30 days of receipt of such notice, notifies the Contractor inwriting of its disagreement.
In the event the Contractor fails to send a notice provided for herein, or the STATE disagrees, thenthe date of completion of the physical work shall be determined in any other manner provided by law.If the Contractor elects to send such a notice, it shall be sent by certified mail to:
New York State Department of Transportation Office of Legal Affairs 1220 Washington Avenue Albany, New York 12232 M.C. 0509
The New York State Department of Transportation hereby disagrees with any date selected by theContractor pursuant to Section 138-a of the State Finance Law which is at variance with or earlier thanthe date of contract final acceptance as determined by the Deputy Chief Engineer. The provisions ofSection 138-a shall in no way modify the duties and obligations of the New York State Department ofTransportation to comply with Article IIA, of the State Finance Law (prompt payment legislation).
The acceptance of the work of the contract pursuant to Section 38 of the Highway Law and Article9 of the contract will be performed by the Chief Engineer or his/her designee.
110-06 MAINTENANCE AND PROTECTION OF TRAFFIC FOR MOBILE OPERATIONS. Forpavement marking contracts, or other contracts that involve mobile operations but do not includeseparate pay items for the maintenance and protection of traffic, a maintenance and protection of trafficsequence shall be provided by the Contractor as indicated in the N.Y.S. Manual of Uniform TrafficControl Devices, Section 302, Figure 302-19, or other configuration in conformance with theM.U.T.C.D. as directed by the Engineer. When shadow vehicles are required by these provisions, theshadow vehicles shall meet the requirements of §619-1.02. N. Shadow Vehicle. No separate paymentwill be made for this work. The cost thereof must be included in prices bid for the various contractitems.
110-07 CONSTRUCTION, EXCAVATION AND DEMOLITION CONTRACTS AT OR NEARUNDERGROUND FACILITIES. All costs associated with verification of the location of undergroundfacilities pursuant to Industrial Code Rule No. 53, as amended, shall be included in the prices bid forthe respective contract items involved unless separate payment is otherwise provided for in the contract.All test holes excavated, by written direction of the Engineer, for purposes other than for compliancewith Industrial Code Rule No. 53 or §105-11 of the Standard Specifications, will be paid for at the unit
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bid price for Trench and Culvert Excavation (or as ordered by the Engineer if this pay item is not in thecontract).
110-08 CONSTRUCTION AND DEMOLITION DEBRIS (NOT APPLICABLE IN NASSAUAND SUFFOLK COUNTIES). Subsection 107-01, Laws, Permits and Licenses of the Department'sStandard Specifications requires the Contractor to observe all Federal, State and local laws andregulations. The New York State Department of Environmental Conservation regulates solid wastemanagement facilities under Title 6 of the Official Compilation of Codes, Rules and Regulations of theState of New York (6NYCRR), Part 360. Its various Subparts define solid waste, including constructionand demolition debris, and regulate the disposal of those wastes.
In accordance with Subpart 360-7 Construction and Demolition Debris Landfills, the disposal of thebelow specified construction and demolition wastes in landfills outside of Nassau and Suffolk Countiesis exempt from regulation under Part 360. If operations are undertaken only between the hours of sunriseand sunset, and no fee or other form of consideration is required for the privilege of using the facilityfor disposal purposes, the following are exempt from regulation:
(1) A site at which only recognizable uncontaminated concrete, asphalt pavement, brick, soil orstone is placed; or
(2) A landfill for the disposal of trees, stumps, wood chips, and yard waste when the generation anddisposal of such waste occur on properties under the same ownership and control.
The wastes listed above are considered to be uncontaminated when they have not come in contactwith a hazardous waste, industrial waste or petroleum product through a spill or other occurrence.Wastes may be presumed uncontaminated absent records, existing data, or knowledge or observationto the contrary. The term soil specifically includes uncontaminated soil materials generated by thecleaning of ditches, drainage culverts, storm sewers, catch basins and related appurtenances, andsweeping streets. Reinforcing steel embedded in concrete is considered an incidental metal and isincluded within the definition of concrete.
Exempt wastes, as noted above, which have been generated on the project site by the work of thecontract may be buried on the project site on property owned by the Department in accordance with therequirements of §203-3.08 Disposal of Surplus Excavated Materials or §203-3.10 Embankments, and§107-11 Restoration of Disturbed Areas Within the Right-of-Way. Exempt waste shall not be pulverized,shredded or otherwise processed such that the individual waste components are renderedunrecognizable. Vegetative wastes shall be segregated from other exempt wastes when buried. Allon-site disposal shall be subject to the Engineer's approval of location, final condition and appearance.
Payment for the proper disposal of waste generated by the work of the contract is included in thevarious pay items. The absence or unavailability of disposal sites on the project shall not be the basis ofa claim for extra compensation by the Contractor for the necessary and appropriate off-site disposal ofexempt wastes.
Disposal of all construction and demolition debris other than the exempt wastes listed above shalloccur off-site at a disposal facility authorized to accept such waste for disposal pursuant to Part 360.Off-site disposal of exempt wastes shall be carried out in accordance with Part 360.
Nothing herein is intended to prevent the Contractor from removing materials to off-site locationsfor speculative accumulation, beneficial use, recovery or recycling purposes if such activities are con-sistent with all applicable Federal, State and local laws and regulations .
110-09 PAVEMENT CODING. Where the limits of passing and no-passing zone have not beendetermined prior to construction, the Contractor shall allow the Engineer one week after the placementof binder to determine these limits. If the Engineer codes these limits right on the pavement surface, thiscoding shall be preserved, by the Contractor, offset from the roadway.
Alternately, if the pay item <Determination of No-Passing Zones and Pavement Coding’ is includedin the contract, this determination shall be made by the Contractor either on binder course or top course.
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110-10 BUY AMERICA AND BUY AMERICA WAIVERS FOR NON-FEDERALLY AIDEDCONTRACTS.
110-10.01 General Buy America Bid Requirement and Definition. In accordance with NewYork State Department of Transportation Official Order No. 1511 establishing consistency forapplication of Section 146 of the State Finance Law, and Section 165 of the U.S. Surface TransportationAct of 1982, as amended, the contractor must submit a bid based on permanently incorporating onlydomestic steel in the construction of the contract.
The contractor may also submit a bid based on being allowed to permanently incorporate foreignsteel into the work of the contract. If the contractor chooses to submit such a bid, the contractor shouldpurchase an additional proposal for the contract and legibly print the following in ink on the proposalcover and at the bottom of the proposal sheet which contains the phrase <Total gross sum written inwords’: TOTAL BID BASED ON USING FOREIGN STEEL.
When bids are submitted based on domestic and foreign steel, both bids are to be submitted in thesame envelope.
To qualify as domestic, all manufacturing processes (including the fabrication of any productcontaining steel) must have been performed in the United States. To further define the coverage, adomestic product is a manufactured steel construction material that was produced in one of the 50 States,the District of Columbia, Puerto Rico, or in the territories and possessions of the United States. Rawmaterials used in the steel may be imported. All manufacturing processes to produce steel productsmust occur domestically. Raw materials are materials such as iron ore, limestone, waste products,etc., which are used in the manufacturing process to produce the steel products. Waste products wouldinclude scrap; i.e., steel no longer useful in its present form from old automobiles, machinery, pipe,railroad tracks and the like. Also steel trimmings from mills or product manufacturing are consideredwaste. Extracting, crushing, and handling the raw materials which is customary to prepare them fortransporting are exempt from Buy America.
110-10.02 AWARD OF CONTRACT. Award of the contract will be made in accordance withSection 103-01 of the Standard Specifications except that award of the contract will be made to thelowest responsible bidder who submits the lowest total bid based on furnishing domestic steel unless suchtotal bid exceeds the lowest total bid based on furnishing foreign steel by more than 25 percent, in whichcase award will be made to the lowest responsible bidder based on furnishing foreign steel.
110-10.03 CONTROL OF MATERIALS. All items, regardless of origin, shall comply with theirindividual specification requirements and with the requirements stated in Section 106 of the StandardSpecifications. In the event the contract is awarded based on using only domestic steel, the Contractormust supply only domestic steel and will be paid the domestic bid prices. The Contractor will beresponsible for ensuring the domestic steels are supplied in conformance with the above referencedlaws. Such responsibility extends to informing all affected subcontractors and material suppliers ofthese specific requirements and ascertaining that steel being supplied is in conformance with thestandard specifications.
In the event that the contract is awarded based on being allowed to permanently incorporate foreignsteel in the work, the Contractor may supply either domestic or foreign steel and will be paid the foreignbid prices. If the contract is awarded based on the domestic bid, the Contractor may permanentlyincorporate in the construction of this contract a minimal amount of foreign steel if the combined costof such materials does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or$2,500, whichever is greater. The combined cost of foreign steel will be that shown to be the value ofthe steel products as they are delivered to the project.
110-10.04 BUY AMERICA WAIVERS. The following is a list of materials or products which havebeen granted waivers or exclusions from the “BUY AMERICA” provisions:
1. Hollow “I” shaped, steel extrusions.
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110-11 BUY AMERICA AND BUY AMERICA WAIVERS FOR FEDERALLY AIDEDCONTRACTS. All the provisions of Section 110-10 shall apply except that every place “Steel” ismentioned, the word “Steel” shall be replaced with “STEEL AND/OR IRON.”
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