W. Va. Code R. § 157-3-10

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 157-3-10 - Prosecution and Progress

10.1. Subletting of Contract. The contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the contract or contracts or any portion thereof, or of his or her right, title, or interest therein, without written approval of the engineer prior to any of the subject work being performed. The contractor will be permitted to sublet a portion thereof but shall perform, with his or her own organization, work amounting to not less than 30 percent of the total contract cost, except that any items designated in the contract as specialty items may be performed by subcontract and the cost of any such specialty items so performed by subcontract may be deducted from the total cost before computing the amount of work required to be performed by the contractor with his or her own organization. No subcontracts, or transfer of contract, shall in any case release the contractor of his or her liability under the contract and bonds.

10.1.a. The contractor shall request the approval of each subcontractor, including lower-tier subcontractors. No work shall be performed by a subcontractor until the subcontractor has been approved. Each subcontract, including lower-tier subcontracts, shall be in writing and shall physically contain all the applicable provisions, requirements, and specifications. The contractor may certify that a copy of all the applicable provisions, requirements, specifications, and safety plans has been provided and is physically incorporated in each subcontract including lower-tier subcontracts. Requests for approval of Disadvantaged Business Enterprise (DBE) subcontractors, however, shall also be accompanied by a copy of the proposed subcontract without the required attachments.

10.1.b. The contractor shall maintain a complete subcontract file including lower-tier subcontractors at the home office, which shall be available to authorized personnel for review without notice, or at any other appropriate location as determined by the division after a five day notice. Such file may contain a single copy of all the applicable provisions, requirements and specifications in lieu of individual subcontract files containing the applicable attachments.

10.1.c. Subletting Of Contract Materials. Roadside production of materials is construed to be the production of crushed stone, gravel, or other materials with portable or semi-portable crushing, screening, or washing plants established or re-opened in the vicinity of the work for the purpose of supplying materials to be incorporated into the work on a designated project or projects, and in all cases, unless performed by the contractor, shall be considered as subcontracting.

10.1.c.1. The purchase of sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready mixed concrete, or any other materials produced at and furnished from established and recognized commercial plants, together with the delivery of such materials to the site of work by means of vehicles owned or operated by such plants or by recognized commercial hauling companies, shall not be considered as subcontracting under these provisions. Except as stated, all hauling of materials from roadside production sources or from railroad or water delivery points to batching plants, mixing plants, or directly to their place of use in the road, and all hauling of materials from batching plants and mixing plants to their place of use in the road, unless done by the contractor's own equipment or by recognized hauling companies, shall be considered as subcontracting under these provisions. If batching plants or mixing plants are set up at rail or water delivery points and materials in part supplied to such plants by rail or water transportation companies, the remaining materials required at such batching or mixing plants may be hauled to such plants without such hauling being considered as subcontracting.

10.2. Notice to Proceed. The "Notice to Proceed" will stipulate the date on which it is expected the contractor shall begin the construction and from which date contract time will be charged. In the event a "Notice to Proceed" cannot be issued, a "Conditional Notice to Proceed" may be issued upon the mutual agreement of the division and the contractor. The "Conditional Notice to Proceed" will be used to allow the contractor to begin work on a portion of the project not impacted by the issue that created the need for the "Conditional Notice to Proceed".

10.3. Prosecution Of The Work.

10.3.a. General. The contractor shall provide sufficient materials, equipment, and labor, etc. to guarantee the completion of the project in accordance with the Plans and Specifications within the time set forth in the Proposal.

10.3.a.1. The contractor shall submit a "Detailed Construction Schedule" and any subsequent schedules, as required by this specification, in the form of an "Activities Schedule Chart" (ASC) or a "Critical Path Method" (CPM) schedule with all graphic and tabular supporting documentation, hereinafter referred to as "schedule."

10.3.a.2. ASC and CPM schedules will not be required for projects on which the major portion of the work is resurfacing, landscaping, signing, lighting, installing signals, guardrail or bridge painting, or on which the contract bid amount is $2,000,000 or less. However, on all projects not requiring an ASC or CPM schedule, the contractor will provide the division with an "Anticipated Payment Summary" (APS) for the project.

10.3.a.3. The contractor's "Anticipated Payment Summary" (APS) will be provided to the division within fourteen (days) of the notice of award. The APS will detail the contractor's anticipated monthly payments from the division throughout the life of the contract. The summaries shall be for the calendar months of the project. The contractor will provide the Division with an updated APS within fourteen (14) days of any schedule changes to the project.

10.3.a.4. "Activities Schedule Chart" (ASC) will be required for all projects on which the contract bid amount is greater than $2,000,000 but less than $7,500,000, except for project types as noted in the previous paragraph.

10.3.a.5. "Critical Path Method" (CPM) schedules will be required for all projects on which the contract bid amount is equal to or exceeding $7,500,000 or containing an incentive/disincentive clause.

10.3.a.6. The submitted schedule shall include a written certification on the face of the schedule, as well as on any diagrams and drawings, stating that the schedule is within the contractual limits and that the submitted schedule is the only schedule the contractor will use for all critical work activities, interdependent work activities, phase construction, stage construction, resource needs, transmittals for contractor designs, drawings and other submissions, activities for subcontractors, vendors, and suppliers, and all other controlling and subsequent activities. This same written certification shall be included on all schedule updates and revisions.

10.3.a.7. The schedule shall show the interdependent and logical sequence of construction activities. The schedule shall reflect that all contract time requirements are essential conditions of the contract and shall also include allowances for seasonal weather conditions, the influence of high or low ambient temperatures, as well as any extra shifts, overtime, or additional manpower and equipment necessary to complete the critical and non-critical activities within the allotted contract time without additional cost to the division.

10.3.a.8. The contractor shall provide an activity or milestone that designates the substantial completion date of the project. The substantial completion date shall equal the contract completion date. Additional activities that do not impact the project's substantial completion may be included in the schedule subsequent to the contract completion date. However, these additional activities shall not impact the float of any preceding portion of the schedule.

10.3.a.9. The contractor may submit a schedule with a substantial completion date earlier than the contract completion date set forth in the proposal. The substantial completion date shall equal the contract completion date. Additional activities that do not impact the project's substantial completion date may be included in the schedule subsequent to the contract completion date.

10.3.a.10. The division's review of the schedule does not represent approval of the contractor's estimate of resources (labor, material, and equipment), method of operation, or production rates.

10.3.a.11. Submission of Construction Schedules. The contractor shall designate a competent representative, hereinafter referred to as construction coordinator, who shall have the decision-making authority for the contractor to control the work in accordance with the schedule(s) for the duration of the contract.

10.3.a.11.A. With the exception of the following preliminary items: establishing the field office, setting up traffic control, and mobilizing equipment, no item of work under the contract may be pursued following the notice to proceed or the conditional notice to proceed until a preliminary construction schedule or detailed construction schedule has been submitted by the contractor and reviewed by the engineer. The engineer may withhold estimates until such time as a schedule has been received and reviewed.

10.3.a.12. Preliminary Construction Schedule. Within 30 calendar days of the contract award date, the contractor may submit a 60 calendar day preliminary construction schedule for review by the engineer. The preliminary schedule shall include a generalized project schedule for the balance of the work in summary form indicating the contract completion date. The contractor shall maintain and submit monthly a 60 calendar day preliminary construction schedule until the detailed construction schedule is submitted by the contractor and reviewed by the engineer.

10.3.a.13. Detailed Construction Schedule. The detailed construction schedule shall include a report system that is maintained throughout the life of the project to measure all factors that affect the completion date. Within 60 calendar days of the contract award date, the contractor shall submit a detailed construction schedule indicating the contract completion date for review by the engineer.

10.3.a.13.A. The engineer will review the detailed construction schedule and supporting documentation for compliance with the contract within 14 calendar days after receipt in accordance with subdivision 10.6.e. The contractor shall provide the engineer with a revised detailed construction schedule incorporating any compliance recommendations made in the engineer's review. This schedule shall become the official schedule and shall be used by the contractor. The official schedule must be completed within ninety (90) calendar days of the contract award date. The engineer may withhold estimate payments for any item of work under the contract after 90 calendar days until the contractor's detailed construction schedule has been reviewed and all comments have been addressed.

10.3.a.14. Construction Schedule Requirements. The preliminary schedule and the official detailed construction schedule shall be submitted in hard copy and shall include a legend for symbols and abbreviations used. Activities with duration times in excess of 15 working days, except for non-construction activities, shall be kept to a minimum and be subject to review by the engineer. The schedule shall provide a minimum of ten activities or categories, hereafter referred to as "Activities," per million dollar value of the contract and a maximum of three hundred activities or as directed by the engineer.

10.3.a.14.A. The schedule shall indicate the interdependence of activities (how the start of a given activity depends on the completion of preceding activities) and the sequence of work (how failure to complete a given activity may restrain the start of successive activities).

10.3.a.14.B. The schedule shall include the contract completion date and any interim completion dates contained in the contract, as well as any coordination and cooperation requirements, construction restrictions, or other requirements of the contract.

10.3.a.14.C. The schedule shall include activities for all work required by the contract, including activities for subcontractors, vendors, and suppliers. In addition to construction activities, the schedule shall include as a minimum the procurement, fabrication, and delivery of critical or special materials and equipment, as well as submission and review of all shop / work drawings, contractor designs, and all other submissions required by the contract.

10.3.a.14.D. The activities are to be described by contract item number, location, phase, and sequence so that the work is readily identifiable and the progress of each activity can be measured. For CPM schedules, the contractor shall provide the labor and equipment involved with each activity. For CPM and ASC schedules, each activity will have an associated dollar amount documented on the schedule. This activity dollar amount will be in direct relation to the bid items and quantity of work included in the activity. Activity duration shall be logical and consistent with the contract documents and shall be based on realistic and available resources of the contractor. The above requirements are applicable for all CPM schedules, including the official detailed construction schedules, required updates, and any revised Schedules.

10.3.a.14.E. Requiring the contractor to submit schedules allocating resources to project activities does not imply acceptance, approval, or agreement by the division that the contractor's scheduled allocation of resources is sufficient to complete either the project or a scheduled activity in a scheduled time.

10.3.b. Critical Path Method (CPM) Schedule. The schedules shall be prepared using the version of the scheduling and cost control system specified at the time of letting in section 640.11 of the Standard Specifications Roads and Bridges adopted 2010.

10.3.b.1. The schedule shall be submitted on standard D size sheets (24" x 36"). The critical path shall be distinguished from other paths on the schedule. All back-up data used to generate the Schedule shall be submitted in digital form on acceptable media that is compatible with the computer system.

10.3.b.2. The submitted print out of the schedule shall include the following data for each activity in the initial submittal and in all updates and revisions:

1. Activity number, as well as preceding and following activity numbers;

2. Activity description;

3. Duration of activity, in working days;

4. All quantities in accordance with pay items;

5. Dollar value of activity;

6. Remaining duration of activity, in working days;

7. Earliest start date, by calendar date;

8. Earliest finish date, by calendar date;

9. Actual start date, by calendar date;

10. Actual finish date, by calendar date;

11. Latest start date, by calendar date;

12. Latest finish date, by calendar date;

13. Total float for activity;

14. Free float for activity;

10.3.b.3. In addition to the above, the following information and data shall be included with the submission of the digital form to the division:

1. Number of shifts per work day, hours per shift for activity;

2. Number of work days per week for activity;

3. Major equipment and corresponding hours for activity;

4. Manpower by Trade or entity and corresponding hours for activity;

5. Activity Usage Profile Cost of Contractor's Income.

10.3.c. Activities Schedule Chart (ASC) Schedule. The ASC schedule shall meet the requirements of a CPM schedule as described in section 10.3.b.2. with the exception of bullet 7 (Major equipment and corresponding hours for activity) and bullet 8 (Manpower by Trade or entity and corresponding hours for activity). The controlling operation must be distinguished from other operations on the schedule. The duration shall note periods of non-work when the non-working period exceeds three (3) consecutive calendar days. The schedule shall be submitted with a written narrative accompanied by a precedence diagram, chronologically sequenced and to time scale, showing construction prosecution or preparation, including an activity description for each activity as well as its duration by working days (for working day contracts only) or calendar days. The precedence diagram shall be submitted on standard legal size sheets (8.5" x 14") or larger.

10.3.d. Progress Reporting and Schedule Updating. The contractor shall submit weekly a summary of work force by trade including all workmen and subcontractors together with a weekly summary of all equipment used on the project. The division shall maintain the contractor's resource information in a confidential manner. The contractor's certified payrolls may be a substitute for the work force summary. A project control meeting shall be held monthly by the engineer with the contractor's construction coordinator to review actual progress, planned progress for the next period, and any changes since the previous update(s). Projects that require ASC schedules may hold project control meetings less frequently if deemed appropriate by the regional engineer, but not less than quarterly.

10.3.d.1. For projects that require CPM schedules, at least five (5) working days before the meeting, the construction coordinator shall provide the engineer with a complete update of all schedule activity information included in subdivision 10.3.d. The engineer may withhold estimate payments until the contractor submits a schedule update five (5) working days prior to the next project control meeting.

10.3.d.2. For projects that require ASC schedules, the construction coordinator shall provide the engineer with a complete update of all schedule activity information included in subdivision 10.3.b. within five (5) working days after the end of the month. The engineer may withhold estimate payments until the contractor submits a schedule update within five (5) working days after the end of the month.

10.3.d.3. The contractor shall submit with the monthly update a narrative report which shall include, but not be limited to, a description of progress along the critical path in terms of days ahead or behind the schedule dates, any problem areas (current and anticipated), any delaying factors and their impact, and an explanation of any corrective actions taken or proposed. The narrative report shall state any and all changes made in the schedule since the previous update(s) and detail all activities or portions of activities, including dollar value, completed during the update period.

10.3.d.4. Prior to submittal, the contractor shall compare the updated progress schedule to the most current estimate payment. The total activity cost to date shown on the schedule shall match the total paid to date on the estimate. To achieve this match the contractor is required to account for all ancillary costs by altering activity dollar amounts due to overruns and under-runs. Change orders, value engineering and other required project modifications shall be incorporated into the schedule as necessary to reflect the actual cost and scope of work being performed.

10.3.d.5. The method for accurately incorporating the project costs into the schedule will be determined by the contractor. The method for incorporating the project cost into the schedule will be subject to review and comment by the engineer. In any case, the intent is to create updated schedules that accurately reflect the progress of the project. Inclusive of the progress shall be the tracking of project costs in such a way that future project expenditures can be determined with relative accuracy.

10.3.d.6. Extension of interim completion dates, the contract completion date, or the revised contract completion date will be governed by the provisions of subsection 10.6.

10.3.d.7. If the division revises work which would affect the sequence of operations or duration of time on work activities, the contractor shall submit to the engineer, within seven (7) calendar days after receipt of the revision, a written report in accordance with subsection 10.6 outlining the effect on work time and cost that the revision is expected to have on the schedule.

10.3.e. Submission of Revised Construction Schedule. The engineer shall request the contractor to submit a revised schedule when any one of the following conditions is reflected by the latest Schedule:

a. A delay greater than 10 calendar days in the completion of any critical activity;

b. The performance of any work in a sequence or manner which varies from that represented on the schedule;

c. The addition, deletion, or revision of activities required by contract modification.

10.3.e.1. The revised schedule shall indicate all additional resources (labor, material, and equipment) and modification(s) of operations necessary to meet the contract time requirements.

10.3.e.2. The engineer will review the revised schedule and supporting documentation for compliance with the contract. The contractor shall incorporate any compliance recommendations made in the Engineer's review. Should the contractor fail to submit a revised schedule within seven (7) calendar days of the engineer's written request, the engineer may withhold estimate payments for any item of work under the contract until such schedule is submitted.

10.4. Limitation of Operations. The contractor shall conduct the work at all times in such manner and in such sequence as will assure the least interference with traffic. The contractor shall have due regard to the location of detours and to the provisions for handling traffic. The contractor shall not open up work to the prejudice or detriment of work already started, and the engineer may require the contractor to finish a section on which work is in progress before work is started on any additional sections if the opening of such section is essential to public convenience.

10.5. Character of Workers; Methods and Equipment. The contractor shall at all times employ sufficient labor and equipment for prosecuting the several classes of work to full completion in the manner and time required by these specifications.

10.5.a. All employees shall have sufficient skill and experience to perform properly the work assigned to them. Employees engaged in special work or skilled work shall have sufficient experience in such work and in the operation of the equipment required to perform all work properly and satisfactorily.

10.5.b. Any person who, in the opinion of the engineer, does not perform his or her work in a proper and skillful manner or is intemperate or disorderly shall, at the request of the Engineer, be removed forthwith. Any contractor or his or her subcontractor employing such person shall not reemploy such person on the project without the written approval of the engineer.

10.5.c. Should a contractor fail to remove such person or persons as required above, or fail to furnish suitable and sufficient personnel for the proper prosecution of the work, the engineer may suspend the work by written notice until such order is complied with.

10.5.d. All equipment which is proposed to be used on the work shall be of sufficient size and in such mechanical condition as to meet requirements of the work and to produce a satisfactory quality of work. Equipment used on any portion of the project shall be such that no injury to the roadway, adjacent property, or other highways will result from its use.

10.5.e. When the methods and equipment to be used by the contractor in accomplishing the construction are not prescribed in the contract, the contractor is free to use any methods or equipment that the contractor demonstrates to the satisfaction of the engineer will accomplish the contract work in conformity with the requirements of the contract.

10.5.f. When the contract specifies that the construction be performed by the use of certain methods and equipment, such methods and equipment shall be used unless others are authorized by the engineer. Should the contractor desire to use a method or type of equipment other than specified in the contract, the contractor shall request authority from the engineer to do so. The request shall be in writing and shall include a full description of the methods and equipment proposed to be used and an explanation of the reasons for desiring to make the change. If approval is given, it will be on the condition that the contractor shall be fully responsible for producing construction work in conformity with contract requirements. If, after trial use of the substituted methods or equipment, the engineer determines that the work produced does not meet contract requirements, the contractor shall discontinue the use of the substitute methods or equipment and shall complete the remaining construction with the specified methods or equipment. The contractor shall remove the deficient work and replace it with work of specified quality, or take such other corrective action as the engineer may direct. No change will be made in basis of payment for the construction items involved nor in contract time as result of authorizing a change in method or equipment under these provisions.

10.6. Determination and Extension of Contract Time. The division shall determine and specify in the contract the number of working days and/or a fixed calendar date allowed for completion of the work, hereinafter called contract time.

10.6.a. A potential working day is every day on the calendar except Saturday, Sunday and holidays as set forth in subsection 2.43.

10.6.b. When the contract time is specified on a working day basis, the engineer will inform the contractor weekly, by written statement, of the number of working days charged for the preceding week, the accumulated number of working days charged against the contract, and the number of working days remaining for completion of the contract. The contractor shall submit in writing to the engineer any protest concerning the weekly statement within seven (7) calendar days after receipt of the statement. The written protest shall set forth what the contractor considered incorrect, along with supporting information; otherwise, the statement shall be deemed to have been accepted by the contractor as correct. The engineer shall review any such protest and supporting information and shall render a decision either affirming or correcting the number of working days previously reported for the contested week, within 14 calendar days after receipt of the written protest.

10.6.c. When the contract time is specified on a fixed calendar date basis, it will consist of the number of calendar days counting from the effective date of the engineer's issuance of the notice to proceed or conditional notice to proceed to the calendar date specified for completion of the project, including all Saturdays, Sundays, holidays, and non-working days. All calendar days elapsing between the effective dates of any orders of the engineer to suspend work and to resume work for suspensions not the fault of the contractor shall be excluded.

10.6.d. The work on the contract will be considered substantially complete when the project could be opened continuously for the safe, convenient, and unimpeded use of the traveling public, or the project has met the intention of the plans, as reasonably determined by the engineer. When the project is considered substantially complete, the contract time charges shall be discontinued prior to final acceptance being made by the engineer as prescribed in subsection 7.16.

10.6.e. Extension Of Contract Time. The contractor shall be responsible for any delays caused by failing to start a work activity on the earliest date any activity can begin after its predecessors have been completed, unless the activity has float. The contractor shall also be responsible for any delays caused by lack of continuous effort, inadequate allocation and scheduling of resources and coordination of the work, inadequate or insufficient application of resources, or inability to meet interim completion dates due to contractor's approach to the work. Such delays shall not be considered for an extension of interim completion dates, contract completion date, or the revised contract completion date.

10.6.e.1. If the contractor finds it impossible for reasons beyond his control to complete an activity or the work within the contract time as specified or as extended according to the provisions of this section, the contractor shall notify the engineer, in writing, within seven (7) calendar days of the contractor becoming aware of the following:

1) a problem that develops requiring direction to the contractor by the engineer;

2) the occurrence of any delay including delays in critical path activities;

3) in the absence of a CPM or ASC schedule, delays in the controlling operation during the prosecution of work that the contractor believes may warrant revision of an interim completion date or the contract completion date.

10.6.e.2. The notification shall set forth the reasons that shall justify the granting of the request, and as a minimum, identify the cause(s) for the delay, the particular critical path activity(s) or controlling operation(s) affected, the effect of any division act or omission on each activity or operation delayed, and the significant dates that encompass the periods of delay. On projects with schedules, the contractor shall submit a schedule update within seven (7) calendar days of becoming aware of the delay and another schedule update when the contractor indicates or the engineer believes the delay has been resolved. In instances where controlling or critical path activities are claimed by the contractor or determined by the division to be delayed, the notification and schedule update shall be considered by the division as a request by the contractor for a contract time extension. If the schedule updates relating to the delays, are not received as mentioned above, the contractor forfeits his rights to any claims or time extensions.

10.6.e.3. In the absence of a CPM or ASC schedule, the controlling item will be determined from the division's records. The engineer will inform the contractor weekly, by written statement, of controlling items identified for the previous week. The contractor shall submit in writing to the engineer any protest concerning the weekly statement within seven (7) calendar days after receipt of the statement. The written protest shall set forth what the contractor considered incorrect, along with supporting information; otherwise, the statement shall be deemed to have been accepted by the contractor as correct. The engineer shall review any such protest and supporting information and shall render a decision either affirming or correcting the controlling items reported for the contested week.

10.6.e.4. If notification is not given by the contractor within the prescribed time of the contractor becoming aware of any delay, or if, having given notification as provided herein, the contractor does not afford the engineer proper facilities for keeping strict account of actual costs and loss of time, the contractor waives any claim for additional compensation and contract time extension. Delay costs allegedly incurred more than the allowable seven (7) days before the contractor notifies the engineer in accordance with this provision shall not be allowed.

10.6.e.5. If the engineer determines that the work was delayed because of conditions beyond the control of and without the fault or negligence of the contractor, the engineer may extend the time for project completion as the conditions justify.

10.6.e.6. Only delays in the activities on the critical path, or in the absence of scheduling requirements, delays in the controlling operation will be considered for a contract time extension, provided when required, the contractor has submitted proper notification and supporting documentation justifying the request. For projects with schedule requirements, time extension reviews will be evaluated along the critical path, as determined by the project's longest path. Time extension reviews will consider the free float and total float of all relevant activities in determining the actual delay periods. The engineer shall within 14 calendar days advise the contractor in writing of the approval or rejection of the time extension request. If approved, the extended time for completion shall then be in full force and effect the same as though it were the original time for completion.

10.6.f. Excusable Noncompensable Delays. An excusable noncompensable delay is a delay in the critical path activity, or in the absence of a project schedule, a delay in the controlling operation that was beyond the contractor's control and not caused by the contractor's fault or negligence. Consideration may be given to an adjustment in contract time, but no consideration shall be given for additional monetary compensation. Excusable non-compensable delays include, but are not limited to:

1. Delay of notice to proceed or conditional notice to proceed of more than 30 calendar days after the contract award date for reasons beyond the control of and without the fault or negligence of the contractor. Consideration for an adjustment of contract time will be limited to the number of calendar days in excess of 30 calendar days, counting from the contract award date to the effective date of the engineer's issuance of the notice to proceed.

2. Delay of the notice to proceed more than seven (7) calendar days after the contract award date for contracts with incentive or disincentive clauses, as long as the reasons are beyond the control of and without the fault or negligence of the contractor. Consideration for an adjustment of contract time will be limited to the number of calendar days in excess of seven (7) calendar days on contracts with incentive or disincentive clauses, counting from the contract award date to the effective date of the engineer's issuance of the notice to proceed.

3. Delays due to acts of God, labor strikes (not within the contractor's power to settle) freight embargoes, states of national emergency, or other reasons beyond the control of the contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

4. Delays in obtaining materials due to extraordinary market conditions caused by industry-wide strike, natural disaster, area-wide shortage, official federal declaration that a material is critical due to national defense efforts, or for other reasons beyond the control of the contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

5. Delays due to adverse weather. Lost days due to adverse weather may include:

a. Days with inclement weather or conditions beyond the Contractor's control that prevent the involvement of their normal working forces engaged in performing critical or controlling item(s) of work for at least 60 percent of the total scheduled daily hours, and

b. Days when weather conditions prevent work from beginning at the regular time and the crew is dismissed, regardless of whether or not conditions improve for the rest of the day.

10.6.f.1. An adjustment of contract time shall not be considered for loss of time due to adverse weather:

1. Before the start of construction operations;

2. During periods when no on-sitework on a controlling operation or critical path activity occurs;

3. After the contract completion date or the revised contract completion date.

4. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost each month, as determined by the engineer. Notification by the contractor of weather related delays may be consolidated into a single request that shall be included in the narrative letter transmitting the monthly schedule update. On projects that do not require schedules, the request shall be received within seven (7) calendar days of the end of the month in which the weather delays occurred. If a schedule is not required for the project, any time extensions granted by the engineer shall be on the basis of an additional working day for each potential working day lost.

10.6.f.2. The allowable time required for the division to take action on properly prepared submissions shall be 14 calendar days after receipt unless otherwise specified in the contract documents.

10.6.g. Excusable Compensable Delays. An excusable compensable delay is a delay in the critical path activity, or in the absence of a project schedule, a delay in the controlling operation that was caused solely by the department. An adjustment in contract time may be considered along with additional monetary compensation, if entitled. Excusable compensable delays include:

1. Delays in a critical path activity, or in the absence of a project schedule, a delay in the controlling operation due to contract modifications resulting in the performance of added work, revised work, or work in greater quantities than those set forth in the proposal except as provided in subsection 6.11. The division reserves the right to negotiate unit prices that include the cost for additional resources (labor, material, and equipment) required to complete added work, revised work, or work in greater quantities within the originally scheduled dates, thereby negating the need for a contract time adjustment.

2. Loss of time due to differing site conditions. Consideration for adjustment of Contract time shall be according to subsection 6.9.

3. Loss of time due to any written orders of the engineer suspending work or delaying critical path activities on the project not the fault of the contractor. Consideration for adjustment of contract time shall be according to subsection 6.10.

4. Loss of time due solely to acts or omissions by the division and not caused by the contractor's fault or negligence.

10.6.g.1. Should a substantial delay be anticipated, the department may request the contractor to submit his/her costs and conditions for demobilization and remobilization. The department may pay the contractor for demobilization or remobilization expenses in lieu of further idle equipment costs.

10.6.g.2. Consideration for adjustment of contract time for added or revised work shall be limited to the extra time allowances as agreed on and specified in the change order that covers the added or revised work. Mark-up for the added or revised work will be negotiated and specified in the change order. The adjustment of contract time and the allowable mark-up will be full and just compensation for any and all claims that the contractor may have regarding the added or revised work. No additional consideration will be given for home office overhead and/or field office overhead.

10.6.g.3. Any adjustment of contract time for work authorized in accordance with subsection 6.11 that requires the performance of work in greater quantities than those specified in the contract shall be made at the discretion of the engineer in accordance with one of the two options below:

a. The extra time allowances as agreed on and specified in the change order that covers the additional or increased work; or

b. The same ratio that the total cost of the added or increased work shall bear to the total contract bid amount, provided the added or increased work is judged to be a critical path activity or, in the absence of a project Schedule, a controlling operation.

10.6.g.4. The allowable time required for the division to take action on properly prepared submissions shall be fourteen (14) calendar days after receipt unless otherwise specified in the contract documents.

10.6.g.5. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

10.7. Completion.

10.7.a. Failure to Complete On Time and Liquidated Damages. Time is an essential element of the contract, and it is important that the work be completed within the time specified. The cost to the division for the administration of the contract, including engineering, inspection, and supervision, will increase as the time required to complete the work is increased.

10.7.a.1. Therefore, for each calendar day the project is deemed not to be substantially complete after the contract time specified for completion of the work, subject to such extensions of contract time required or permitted in subsection 10.6, the division will assess liquidated damages against the contractor. Daily charges will be deducted for each calendar day, as defined in subsection 2.10. The total amount of daily charges will be deducted from any monies due the contractor, not as a penalty but as liquidated damages. Unless specified elsewhere in the contract, the amount of the daily charge will be calculated from the following table on the date the project is first advertised.

SCHEDULE OF LIQUIDATED DAMAGES
ORIGINAL CONTRACT AMOUNT		DAILY CHARGE
FROM MORE THAN	TO AND INCLUDING	PER CALENDAR DAY
$0	$25,000	$50
25,000	100,000	70
100,000	500,000	150
500,000	1,000,000	310
1,000,000	2,000,000	570
2,000,000	5,000,000	910
5,000,000	10,000,000	1410
10,000,000	---------	3280

10.7.a.2. Interim Completion Date. When an interim completion date has been specified in the contract documents for the contractor to complete a specific amount of work, pay item, or structure, and if the contractor fails to meet the interim date, the division will assess a per calendar day charge as liquidated damages, as specified elsewhere in the contract documents until such amount of work, pay item, or structure has been completed. Extension of interim completion dates will be governed by the provisions of subsection 10.6. The liquidated damages provided for in this subsection are in addition to those provided for elsewhere in this section.

10.7.a.3. Incentive/Disincentive for Early Completion. When an incentive/disincentive (I/D) provision has been included in the contract documents, subdivision 10.7.a. relating to liquidated damages remains in effect and is applicable to the total contract time; however, there will be concurrent assessment of liquidated damages with disincentive assessments. Extension of the date(s) established for completion of work stages covered by the I/D provision and/or the contract completion date will be governed by the provisions of subsection 10.6.

10.8. Default and Termination of Contract. If the contractor:

10.8.a. fails to begin the work under the contract within the time specified in the "Notice to Proceed", or

10.8.b. fails to perform the work with sufficient employees and equipment or with sufficient materials to assure the prompt completion of the work, or

10.8.c. performs the work unsuitably or neglects or refuses to remove materials or to perform anew such work as may be rejected as unacceptable and unsuitable, or

10.8.d. discontinues the prosecution of the work, or

10.8.e. fails to resume work, which has been discontinued, within a reasonable time after notice to do so, or

10.8.f. becomes insolvent or is declared bankrupt, or commits any act of bankruptcy or insolvency, or

10.8.g. allows any final judgment to stand against him or her unsatisfied for a period of ten (10) days, or

10.8.h. makes an assignment for the benefit of creditors, or

10.8.i. for any other cause whatsoever, fails to carry out the contract terms in an acceptable manner,

10.8.j. The engineer will give notice in writing to the contractor and his or her surety of such delay, neglect or default. If the contractor or surety, within a period of 10 days after such notice, shall not proceed in accordance therewith, then the division will, upon written notification from the engineer of the fact of such delay, neglect or default and the contractor's failure to comply with such notice, have full power and authority, without violating the contract, to take the performance of the work out of the hands of the contractor. The division may appropriate or use any or all materials and equipment on the ground as may be suitable and acceptable and may enter into an agreement for the completion of the contract according to the terms and provisions thereof, or use such other methods as in the opinion of the engineer will be required for the completion of the contract in an acceptable manner.

10.8.k. All cost charges incurred by the division, together with the cost of completing the work under contract, will be deducted for any monies due or which may become due the contractor. If such expense exceeds the sum which would have been payable under the contract, then the contractor and the surety shall be liable and shall pay to the division the amount of such excess.

10.9. Termination of Contract for Convenience of the State.

10.9.a. The division may terminate the entire contract or any portion thereof, if the engineer determines that a termination is in the division's interest. The engineer will deliver to the contractor a notice of termination specifying the extent of termination and the effective date.

10.9.b. Submittals and Procedures. After receipt of a notice of termination, the contractor shall immediately proceed with the following obligations:

10.9.b.1. Stop work as specified in the notice.

10.9.b.2. Place no further subcontracts or orders for materials, services, or facilities, except as necessary to complete the continued portion of the contract.

10.9.b.3. Terminate all subcontracts to the extent they relate to the work terminated.

10.9.b.4. Settle all outstanding liabilities and termination settlement proposals arising from the termination of the contract or portion thereof.

10.9.b.5. Transfer title and deliver to the division (1) fabricated, partially fabricated, or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated, and (2) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the division.

10.9.b.6. Complete performance of the work not terminated.

10.9.b.7. Acceptable materials obtained by the contractor for the project that have not been incorporated in the work shall be inventoried in conjunction with the engineer at a date identified by the engineer.

10.9.b.8. Take any action necessary, or that the engineer may direct, for the protection and preservation of the property related to the contract that is in the possession of the contractor and in which the division has or may acquire an interest.

10.9.c. Settlement Provisions. When the division orders termination of all or a part of the contract effective on a certain date, completed items of work as of that date will be paid for at the contract bid price. Payment for partially completed work will be made either at agreed prices or under the provisions below. Items that are eliminated in their entirety by such termination shall be paid for as provided in subsection 11.5.

10.9.c.1. Additional Costs. Within sixty working days of the effective termination date, the contractor shall submit a claim for additional damages or costs not covered above or elsewhere in the contract. Such claim may include such cost items as reasonable idle equipment time, mobilization efforts, bidding and project investigative costs, overhead expenses attributable to the project terminated, legal and accounting charges involved in claim preparation, subcontractor costs not otherwise paid for, actual idle labor cost if work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original contract, and any other cost or damage for which the contractor feels reimbursement should be made.

10.9.c.1.A. The contractor and the division may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total contract price as reduced by the amount of payments previously made, and the contract price of work not terminated. The contract shall be amended, and the contractor paid the agreed amount.

10.9.c.2. Additional Cost Review. If the contractor and the division fail to agree on the whole amount to be paid the contractor because of the termination of work, the division will pay the amounts determined as follows, but without duplication of any amounts agreed upon above:

10.9.c.2.A. For contract work performed before the effective date of termination, the total (without duplication of any items) of:

10.9.c.2.A.1. The cost of work performed;

10.9.c.2.A.2. The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the termination portion of the contract if not included in subparagraph 1 above; and

10.9.c.2.A.3. A sum, as profit on part 10.9.c.2.A.1. above determined by the division to be fair and reasonable. The division shall allow no profit under this subdivision if the contractor's costs incurred on work performed exceed the bid item payments made.

10.9.c.2.B. The reasonable costs of settlement of the work terminated, including:

10.9.c.2.B.1. Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and support data;

10.9.c.2.B.2. The termination and settlement of subcontracts (excluding the amounts of such settlements); and

10.9.c.2.B.3. Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.

10.9.c.2.C. Except for normal spoilage, and to the extent that the division expressly accepts the risk of loss, division will exclude from the fair value, as that is destroyed, lost, stolen, or damaged so as to become undeliverable to the division or to the buyer.

10.9.c.2.D. In arriving at the amount due the contractor under this clause, there will be deducted:

10.9.c.2.D.1. All unliquidated advances or other payments to the contractor under the terminated portion of the contract;

10.9.c.2.D.2. Any claim that the division has against the contractor under the contract; and

10.9.c.2.D.3. The agreed price for, or the proceeds from the sale of materials, supplies, or other things acquired and sold by the contractor not recovered by or credited to the division.

10.9.c.2.E. If termination is partial, the contractor may file a proposal with the division for an equitable adjustment of the price(s) of the continued portion of the contract. The division will make any equitable adjustment agreed upon. Any proposal for an equitable adjustment under this clause shall be requested within sixty working days from the effective date of termination unless extended in writing by the engineer.

10.9.c.2.F. The division may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the contractor for the termination portion of the contract, if these payments will not exceed the amount to which the Contractor is entitled.

10.9.c.2.G. The contractor shall maintain and make available all project cost records to the division for audit to the extent necessary to determine the validity and amount of each item claimed. This includes all books and other evidence bearing on the contractor's costs and expenses under the contract. These records and documents shall be made available to the division at the contractor's office, at all reasonable times, without any direct charge. If approved by the division, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.

10.9.c.2.H. Termination of the contract or portion thereof shall not relieve the contractor of contractual responsibilities of the work completed, nor shall it relieve the Surety of its obligation for and concerning any just claim arising out the work performed.

10.10. Field Office Overhead. The division may consider compensating the contractor for field office overhead costs as long as the contractor can provide documentation that the field office overhead costs are not covered by the project bid items.

10.11. Home Office Overhead. The department shall consider payment to the contractor for any unabsorbed or extended home office overhead costs for which payment is not previously provided for if all of the following criteria are met:

10.11.a. The contractor has incurred an excusable, compensable delay that delays the work at least forty five (45) calendar days beyond the scheduled contract completion date or the revised completion date. These days are cumulative throughout the project.

10.11.b. The delay for which payment of home office overhead is sought is only due to delays defined in subdivision 10.6.g.

10.11.c. Payment will be considered for every eligible day beyond the scheduled or revised contract completion date at the rate determined below up to substantial completion, as determined by the engineer.

10.11.d. Home office overhead daily rate shall be calculated using the following formula:

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Then
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Where:
A	=	Contract billing amount
B	=	Contractor's total billings for Contract period
C	=	Contractor's total overhead for contract period
D	=	overhead allocable to Contract
E	=	days of performance
F	=	daily contract overhead
G	=	number of days of delay

10.11.d.1. Contract duration term, E, includes every calendar day from the execution of the contract, unless otherwise specified by the engineer, to the scheduled contract completion date or revised contract completion date.

10.11.d.2. When the contractor requests home office overhead compensation for a subcontractor, use the above formula to calculate the subcontractor's daily home office overhead rate; however, in the subcontractor calculation, A is equal to the subcontractor's portion of the original contract amount as determined by the sum of all approved subcontracts issued for each individual subcontractor.

10.11.d.3. Formula items B and C are subject to verification by audit at the election of the engineer. Any and all costs associated with the audit will be the sole responsibility of the contractor. Information obtained through any such audit shall, if requested by the contractor, be treated as a trade secret for purposes of exemption from disclosure under the West Virginia Freedom of Information Act.

W. Va. Code R. § 157-3-10