NMDOT 2013 Specifications- Section 100. Presented by: Rod Billingsley Billingsley Engineering, P.C. Las Vegas, NM. Remember the Golden Rule. (The guy with the gold makes the rules.). NMDOT Problems:. Large Claims Numerous Claims Poorly Defined Bid Protest Claim Procedures
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Presented by: Rod Billingsley
Billingsley Engineering, P.C.
Las Vegas, NM
(The guy with the gold makes the rules.)
Administration between districts
to limit claims
The Bidder’s exercise of due diligence before submittal of a Bid which includes the careful, independent examination of the site of the proposed Work, including Materials pits and haul Roads, the Bid Package, all Contract documents including Standard Specifications, Special Provisions, Supplemental Specifications, and standard and serial drawings and boring logs which are representative of the condition at the precise location where each boring was made but conditions may vary between boring locations.
The Department will prepare Plans and Specifications in accordance with acceptable engineering standards and will give such directions as may enable any competent Contractor to construct the Work. The submission of a Bid shall be considered prima facie evidence that the Bidder has exercised Pre-Bid Due Diligence and accepts the conditions to be encountered in performing the Work and accepts the provisions and requirements of the Contract. The Bidder must so certify on the Bid Form for the Bid to be considered a Responsive Bid;...
Requests for Contract interpretation shall be in writing, addressed to the Chief Engineer, and must be received by the Chief Engineer at least 48 hours prior to the date fixed for the opening of Bids in order to receive a written response to the request. No interpretation of the meaning of the Contract shall be made to any Bidder orally. The Contractor shall not rely on oral statements and shall only rely on written responses provided by the Chief Engineer or designate. Any and all such interpretation and any supplemental instructions if issued by the Department will be in the form of an Addendum or posted to Bid Express. Such Addendum will be provided to all prospective Bidders for such purposes and shall, whenever practicable, be issued no later than twenty-four (24) hours prior to Bid Opening. The Bidder agrees that it will make no Claim because of misinterpretation or misunderstanding of the Contract or because of lack of information; and...
The Project Manager will adjust the Contract for differing site conditions in accordance with Section 109.5, “Payment for Changes, Differing Site Conditions, and Extra Work,” and will include the costs of Delays but exclude anticipated profit in accordance with Section 109.11, “Compensation for Claims.” No Contract adjustment or additional compensation or time which results in a benefit to the Contractor will be allowed if a differing site condition could have been discovered or anticipated by the Contractor through the exercise of Pre-Bid Due Diligence.
The Contractor is not entitled to a Claim due to a differing site condition unless the Contractor has provided the required written notice pursuant to Section 105.19, “Notice of Potential Claim.”
If the Contractor or the Project Manager fails to provide prompt written notice which results in additional costs to the Department which could have been mitigated, the Department shall adjust the Contract accordingly.
The Contractor shall promptly notify the Project Manager in writing of the intent to make a Claim and shall provide a contemporaneous statement of estimated damages or delay before beginning the Work on which the Claim is based, but, in no event shall notice be given later than seven (7) Days of the Contractor discovering the condition or issue giving rise to the Claim, or within seven (7) Days of receipt of a notice of a differing site condition from the Project Manager, or in the case of termination of Contract under Section 108.10, “Termination of Contract; No Fault of Contractor” within 30 Days of the effective termination date. A notice of intent to Claim shall include, when relevant to the intended Claim (e.g., when the Contractor intends to seek a Contract adjustment for time, Delay damages, or reduction in Liquidated Damages, etc.), a revised schedule pursuant to Section 108.3.2, “Schedule Format”; failure to include a revised schedule shall render the notice of intent to Claim incomplete.
Such notice of intent to Claim shall be given in order that the Department can assess the situation, make an initial determination as to the causes of the potential Claim, institute appropriate changes or procedures to resolve the matter, to document issues related to the potential Claim, to track costs and possible Delay, and facilitate resolution of the potential Claim. The failure of the Contractor to provide timely written notice of intent to make a Claim and a contemporaneous statement of estimated damages or Delay shall constitute a waiver or abandonment of the Claim. The Contractor waives the right to assert a Claim if the Contractor fails to provide proper and complete notice of intent to Claim.
Once the Contractor has provided timely and proper notice of intent to make a Claim pursuant to Section 105.19, “Notice of Potential Claim” the entire and complete administrative remedy and procedure to resolve all contractual disputes is provided by this Section.
The complete administrative remedy is sequential in nature, exclusive, and consists of the following steps:
Step I. Notice of Intent to Claim;
Step II. Submittal of the Claim to the Project Manager;
Step III. District Level review and decision;
Step IV. Service of Request for Reconsideration of Claim to Secretary;
Step V. Secretary’s review, which may include referral to Claims Board for an informal hearing, and Secretary’s decision;
Step VI. Service of Request for Arbitration or Service of Summons and Complaint in State District Court.
The CPM Baseline Schedule shall consist of network diagrams and associated bar graphs and shall include a tabulation of each activity shown on the detailed network diagrams. Provide, at a minimum, the following information on the CPM Baseline Schedule:
1. Activity description;
2. Early start date (each activity);
3. Late start date (each activity);
4. Original duration, in workdays (each activity);
5. Total float and free float (each activity);
6. Sequence and interdependence of activities;
7. Workdays each week;
8. Contractor designated holidays;
9. Number of shifts per Day;
10. Number of hours per shift;
11. Scheduled Completion Date;
12. Anticipated weather events based on historical data; and
13. Resource Loading.
The Department will make Progress Payments to the Contractor in accordance with Section 109.8 “Progress Payments”. The Department will pay 100% of the value of Work performed and Materials complete in place in accordance with Section 109.9, “Stockpile”, until the sum of the Progress Payments made equals 95% of the Total Original Contract Amount as amended by Change Order. The Department will continue to make additional Progress Payments in the sum of zero dollars ($0.00) after the Total Original Contract Amount as amended by Change Order equals 95% and until the Contractor completes the Work in an acceptable manner. The 5% retained when the Progress Payments equals 95% of the Total Original Contract Amount as amended by Change Order is the amount considered necessary to protect the interests of the public and the Department; those interests include ensuring that the Work is Acceptable, on schedule, in compliance with the Contract, and that the Work reaches Substantial Completion and final Acceptance. Subject to other deductions the amount retained shall be provided to the Contractor in accordance with Section 109.10 “Project Closure.”
Unless otherwise specified in the Contract, the Project Manager shall not approve partial (stockpile) payment for the following Items or Materials not yet incorporated and Accepted into the Work.
1. Items Pre-fabricated by the Contractor or Subcontractor unless otherwise specified in the Contract;
2. Items or Materials associated with the typical section e.g. Aggregates, Cement, Asphalt Binder, Lime etc.;
3. Items associated with SWPPP;
4. Items associated with Signs; and,
5. Any Item or Material stored off the Project.
After measurement, partial (stockpile) payments to the Contractor may be made for Items on hand not to exceed 50% of the Bid Item price under the following conditions:...
Rod Billingsley, PE & PS
Billingsley Engineering, PC
901 6th Street, PO Box 1120
Las Vegas, NM 87701