wv-wv-18341: 157-03 — CONSTRUCTION AND RECONSTRUCTION OF STATE ROADS

6/29/2026 9:29:28 AM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Highways TITLE-SERIES: 157-03 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:No RULE NAME: CONSTRUCTION AND RECONSTRUCTION OF STATE ROADS CITE STATUTORY AUTHORITY: W. Va. Code §§17-2A-8(1) and (2) and 17-4-19. COMMENTS LIMITED TO: Written DATE OF PUBLIC HEARING: LOCATION OF PUBLIC HEARING: DATE WRITTEN COMMENT PERIOD ENDS: 07/29/2026 4:30 PM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: Jonathan Schaffer ADDRESS: 1900 Kanawha Blvd. E EMAIL: jonathan.w.schaffer@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: RELEVANT FEDERAL STATUTES OR REGULATIONS: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) INCORPORATED BY REFERENCE: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: The rule outlines the procedure in which state road contracts are bid, awarded, and executed. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: The Rule is duplicative of the WV Division of Highways Standard Specifications of Roads and Bridges 2023 edition and is periodically revised by the monthly DOH Specification Committee meeting which is an open meeting and attended by interested members of the public, including the construction and engineering industries. The duplicative presence of nearly identical text with differing windows of opportunity to change/update rules has the potential to create confusion regarding contract negotiations and procurement and are better suited as a matter of contract and in the Standard Specifications rather than a state rule. The removal of 157-3-1 to 157-3- 12 (with the exception of section three, which generally refers to the adoption of the Standard Specifications) will provide consistency to the subject matter, afford clarity to those who rely on the covered topics, and eliminate redundancies that are often inefficient and confusing. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: N/A B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: N/A C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: N/A D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost 0 0 0 Personal Services 0 0 0 Current Expenses 0 0 0 Repairs and Alterations 0 0 0 Assets 0 0 0 Other 0 0 0 2. Estimated Total 0 0 0 Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): N/A BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Jonathan W Schaffer By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 157CSR3 TITLE 157 LEGISLATIVE RULE DEPARTMENT OF TRANSPORTATION DIVISION OF HIGHWAYS SERIES 3 CONSTRUCTION AND RECONSTRUCTION OF STATE ROADS §157-3-1. General. 1.1. Scope. -- This rule relates to the construction and reconstruction of state roads. 1.2. Authority. -- W. Va. Code §§17-2A-8(1) and (2) and 17-4-19. 1.3. Filing Date. -- 1.4. Effective Date. -- 1.5. Sunset Provision. – This rule shall terminate and have no further force or effect on August 1, 2032. §157-3-2. Definitions. 2.1. Abbreviations. Whenever the following abbreviations are used in the specifications, plans or contract documents, they are defined as follows: AAN - American Association of Nurserymen AAR - Association of American Railroads AASHTO - American Association of State Highway and Transportation Officials AIA - American Institute of Architects AISC - American Institute of Steel Construction, Incorporated AISI - American Iron and Steel Institute AMA - Automotive Manufacturer’s Association AMS - Aerospace Material Specification ANSI - American National Standards Institute ARA - American Railway Association AREA - American Railway Engineering Association AREMA - American Railway Engineering and Maintenance of Way Association ASCE - American Society of Civil Engineers 1 157CSR3 ASD - Aluminum Standards and Data-Aluminum Association ASLA - American Society of Landscape Architects ASTM - American Society for Testing and Materials ATSSA - American Traffic Safety Services Association AWWA - American Water Works Association AWS - American Welding Society FHWA - Federal Highway Administration FSS - Federal Specifications and Standards, General Services Administration IEEE - Institute of Electronic and Electrical Engineers IPCEA - Insulated Power Cable Engineers Association ISA - Instrument Society of America MIL - Military Specification MP - Materials Procedure (See 2.51 for Definition) NBFU - National Board of Fire Underwriters NEC - National Electric Code NEMA - National Electrical Manufacturer’s Association NFPA - National Fire Protection Association PEI-ALS - Porcelain Enamel Institute: Aluminum Standards UL - Underwriters Laboratories SAE - Society of Automotive Engineers SSPC - Steel Structures Painting Council TTE-TTP - Federal Specifications and Standards 2.2. Access Connection means any roadway facility by means of which vehicles enter or leave arterial highways. 2.3. Advertisements means the public announcement, as required by law, inviting bids for work to be performed, or material to be furnished. 2.4. Arterial highway means a general term denoting a highway primarily for through traffic. 2 157CSR3 2.5. Auxiliary lane means the portion of the roadway adjoining the traveled way for parking, speed-change or other purposes supplementary to through traffic movement. 2.6. Award means the acceptance by the division of a bid. 2.7. Base course means the layer or layers of specified material of designated thickness placed on a sub-base or a sub-grade to support a surface course or courses. 2.8. Bidder means an individual, firm, corporation, or combination thereof, acting directly or through a duly authorized representative, and prequalified according to the requirements and provisions of the division, submitting a bid for the proposed work. 2.9. Bridge means a structure, including supports, erected over a depression or an obstruction, such as water, a highway or railway and having a track or passageway for carrying traffic or other moving loads and having a length measured along the center of roadway more than 20 ft. between undercopings of abutments or extreme ends of openings for multiple boxes. 2.9.a. The length of a bridge structure is the overall length measured along the line of survey stationing back to back of abutments if present, otherwise, end to end of the bridge floor, but in no case less than the total clear opening of the structure. Roadway width is the clear width measured at right angles to the longitudinal centerline of the bridge between the bottom of curbs. 2.10. Calendar day means every day shown on the calendar. 2.11. Certified technician means an individual who has been examined by the joint Industry- Division Certification Board and deemed competent in the particular technical field for which the individual has been examined. This competency is documented by written notification and issuance of a certificate to the individual and remains in effect for a given period of time as determined by the regulations of the board. Should any questions develop concerning the status of an individual, verification may be made through the Training Section of the Personnel Division of the Division. 2.12. Change order means a general term referring to force account work orders, supplemental agreements, and work orders of the contract. 2.13. Channel means a natural or artificial water course. 2.14. City, town or district means a subdivision of the county used to designate or identify the location of the proposed work. 2.15. Commissioner means the West Virginia Commissioner of Highways. 2.16. Construction limits means the physical limits of construction as described by designated lines drawn on the Plans. 2.17. Contract means the written agreement between the division and the contractor covering the performance of the work, the furnishing of labor, equipment and materials, and the basis of payment. The contract includes the invitation for bids, proposal, contract form, contract bond, specifications, supplemental specifications, special provisions, plans, notice to proceed, any change orders that are required to complete the construction of the work in an acceptable manner, including authorized extensions thereof, all of which constitute one instrument. 3 157CSR3 2.18. Contract bond means the approved form of security, executed by the contractor and their surety, guaranteeing completion of the work and payment of all legal debts pertaining to the construction of the project. 2.19. Contract period means the period from the specified date of commencement of work to the specified date of completion of the work, both dates inclusive, as is specified in the contract. 2.20. Contract time means the number of working or calendar days specified in the (proposal, indicating the time allowed for the completion of the work contemplated, including authorized time extensions. In case a calendar date of completion is specified in the proposal, the work shall be complete by that date or any approved extensions thereof. 2.21. Contractor means the individual, firm or corporation, party of the second part to the contract, acting directly or through their agents, employees, or subcontractors. 2.22. Control of access, full means the condition where the right of owners or occupants of abutting land or other persons to access, light, air or view in connection with a highway is fully controlled by public authority. The authority to control access is exercised to give preference to through traffic by providing access connections with selected public roads only and by prohibiting crossings at grade or direct driveway connections. 2.23. Control of access, partial means the condition where the right of owners or occupants of abutting land or other persons to access, light, air or view in connection with a highway is partially controlled by public authority. The authority to control access is exercised to give preference to through traffic to a degree that, in addition to access connections with selected public roads, there may be some crossings at grade and some private driveway connections. 2.24. County means the county or counties of West Virginia in which the work is to be done. 2.25. Culvert means any structure not classified as a bridge which provides an opening under the roadway. 2.26. Debarment means an exclusion or bar from contracting with or bidding on contracts let by the division. 2.27. Department means West Virginia Department of Transportation. 2.28. Disqualification means the debarment of a contractor by the revocation of the contractor's Certificate of Qualification that is necessary for contracting with or bidding on contracts let by the division for a specified period of time. 2.29. Divided highway means a highway with separated roadways for traffic in opposite directions. 2.30. Division means West Virginia Division of Highways, a corporation. 2.31. Easement means a right acquired by one party to use land belonging to another party for a specified purpose. 2.32. Embankment means the structure of soils, soils aggregate and broken rock between the embankment foundation and the sub-grade. .2.33. Embankment foundation means the material below the original ground surface whose physical characteristics affect the support of the embankment. 4 157CSR3 2.34. Employee means any person working on behalf of the project who is under the direction of the contractor or any subcontractor. 2.35. Engineer means the Chief Engineer, assigned by the Commissioner, or a designated representative, who acts within the scope of particular duties or authority given to them by West Virginia State Code, the Commissioner, these Specifications, or the Contract Documents. 2.36. Equipment means all machinery and equipment, together with the necessary supplies for upkeep and maintenance, and also tools and apparatus necessary for the proper construction and acceptable completion of the work. 2.37. Estimates means the official written itemization of the value of materials in place and work performed. 2.38. Expressway means a divided arterial highway for through traffic with full or partial control of access and generally with grade separations at intersections. 2.39. Extra work means an item of work not provided for in the contract as awarded, but found essential to the satisfactory completion of the contract within its intended scope. See section 6.3 of this rule. 2.40. Force account work order means an order signed by the engineer or his or her authorized representative, directing additional work to be performed, with payments based on labor, materials used, equipment cost, plus specified percentages. 2.41. Freeway means an expressway with full control of access. 2.42. Frontage street or road means a local street or road auxiliary to and located on the side of an arterial highway for service to abutting property and adjacent areas, and for control of access. 2.43. Highway means the entire improvement comprising the entire right-of-way. See (70). 2.44. Highway grade separation means any structure carrying highway or street traffic over or under another highway or street. 2.45. Holidays means official holidays which are New Year's Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, West Virginia Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Lincoln’s Day, Christmas Day, and any day in which an election (primary or general) is held throughout the state and such other days as the president, governor, or other duly constituted authority shall proclaim to be holidays. If a holiday falls on a Sunday, the following Monday shall be observed in lieu thereof. If a holiday falls on a Saturday, the previous Friday shall be observed in lieu thereof. 2.46. Inspector means the engineer's authorized representative assigned to make any or all necessary inspection of the work as further described in subsection 7.10 of this rule. 2.47. Instructions to bidders means the notice to contractors containing all necessary information as to provisions, requirements, date, location, and time of submitting Proposals. 2.48. Invitation for bids means the advertisement for bids, as required by law, inviting bids for work to be performed or material to be furnished. 5 157CSR3 2.49. Item means a specifically described unit of work for which a price is provided in the contract. 2.50. Laboratory means the testing laboratories of the division or any other testing laboratories designated by the division. 2.51. Lot means an isolated quantity of specified material from a single source or a measured amount of specified construction assumed to be produced by the same process. 2.52. Materials means any substances specified for use in the construction of the project and its appurtenances. 2.53. Materials procedure means a procedure defining standard methods or guidelines for the inspection, sampling, testing, evaluation, and documentation of the Materials Division's activities relative to the quality assurance program for materials, products, and processes. Each materials procedure is identified by the letters MP followed by seven digits, (i.e. MP XXX.XX.XX). 2.54. Median means the portion of a divided highway separating the traveled ways for traffic in opposite directions. 2.55. Median lane means a speed-change lane within the median to accommodate left turning vehicles. 2.56. Multiple deficiency means a multiple deficiency is defined as a failure to meet specified requirements involving more than one characteristic of a material within the same lot. 2.57. Notice to proceed means a written notice to the contractor to proceed with the contract work including, when applicable, the date of beginning of contract time. 2.58. Parking lane means an auxiliary lane primarily for the purpose of vehicular parking. 2.59. Parkway means an arterial highway for noncommercial traffic, with full or partial control of access, and usually located within a park or a ribbon of park-like development. 2.60. Pavement structure means the combination of sub-base, base course, and surface course placed on a sub-grade to support the traffic load and distribute it to the roadbed. 2.61. Plans means the approved plans, profiles, typical sections, cross sections, working drawings, standard drawings and supplemental drawings, or exact reproductions thereof, which show the location, character, dimensions and details of the work to be done. 2.62. Pre-construction conference means a conference normally called by the district engineer, following award and prior to start of construction, to be attended by division officials and by the responsible officials of the contractor and other affected parties. 2.63. Pre-qualification statement means the approved form or forms upon which Contractors shall furnish information as to their ability to perform work, their experience, manpower, equipment and financial condition. 2.64. Profile grade means the trace of a vertical plane intersecting the top surface of the proposed wearing surface, usually along the longitudinal centerline of the roadway. Profile grade means either elevation or gradient of such trace according to the context. 6 157CSR3 2.65. Project means the specific section of the highway, together with all appurtenances and construction to be performed thereon, under the Contract. 2.66. Project engineer or project supervisor means the representative of the engineer on a project. See section 6.9. 2.67. Proposal means the offer of a bidder, on the prescribed form, to perform the work and to furnish the labor and material at the prices quoted. 2.68. Proposal form means the approved form on which the division requires a bid to be prepared and submitted for the work. 2.69. Proposal guaranty means the security furnished with a bid to guarantee that the bidder will enter into the contract if his or her bid is accepted. 2.70. Railway-highway separation means any structure carrying highway traffic over or under the tracks of any railway. 2.71. Ramp means a connecting roadway between two intersecting highways, usually at a highway grade separation. 2.72. Right-of-way is a general term denoting land, property, or interest therein, usually in a strip, acquired for or devoted to a highway. 2.73. Road is a general term denoting a public way for purposes of vehicular travel, including the entire area within the right-of-way, or needed for the maintenance of travel. See W. Va. Code §17-1-3. 2.74. Roadbed means the grade portion of a highway, within top and side slopes, prepared as a foundation for the pavement structure and shoulders. 2.75. Roadside is a general term denoting the area adjoining the outer edge of the roadway. Extensive areas between the roadways of a divided highway may also be considered roadside. 2.76. Roadside development means those items necessary to the complete highway which provide for the preservation of landscape materials and features; the rehabilitation and protection against erosion of all areas disturbed by construction through seeding, sodding, mulching and the placing of other ground covers; such suitable plantings and other improvements as may increase the effectiveness and enhance the appearance of the highway. 2.77. Roadway means the portion of the highway within limits of construction. 2.78. Seasonal restrictions means limitations imposed on the work which prohibit the contractor from performing certain types of work during specific seasons of the year. 2.79. Shoulders means the portion of the roadway contiguous with the traveled way for accommodation of stopped vehicles, for emergency use, and for lateral support of base and surface courses. 2.80. Sidewalk means that portion of the roadway primarily intended for the use of pedestrians. 2.81. Single deficiency means a failure to meet specified requirements involving one characteristic of a material. 7 157CSR3 2.82. Special provisions means additions and revisions to the standard and supplemental specifications covering conditions peculiar to an individual project. 2.83. Specialty item means an item of work designated as “Specialty Item” in the proposal that is limited to work which requires highly specialized knowledge, craftsmanship, or equipment that is not ordinarily available in contracting organizations prequalified to bid and is usually limited to minor components of the overall contract. 2.84. Specifications is a general term applied to all directions, provisions, and requirements pertaining to performance of the work. 2.85. State means the State of West Virginia. 2.86. Street is a general term denoting a public way for purposes of vehicular travel, including the entire area within the right-of-way. 2.87. Structures means bridges, culverts, catch basins, drop inlets, retaining walls, cribbing, manholes, endwalls, buildings, sewers, service pipes, underdrains, foundation drains, and other features which may be encountered in the work and not otherwise classed. 2.88. Sub-base means the layer or layers of specified or selected materials of designed thickness placed on a sub-grade to support a base course. 2.89. Subcontractor means an individual, firm, or corporation to whom the contractor sublets part of the contract. 2.90. Sub-grade means the upper portion of a roadbed upon which the pavement structure and shoulders are constructed. 2.91. Substantial completion or substantially complete means 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. 2.92. Substructure means all that part of the structure below the bearings of simple and continuous spans, skewbacks of arches and tops of footings of rigid frames, together with the backwalls, wingwalls, and wing protection railings. 2.93. Superintendent means the contractor's authorized representative in responsible charge of the work. 2.94. Superstructure means the entire structure except the substructure. 2.95. Supplemental agreement means a modification of the contract covering changes in the plans or quantities, or both, and establishing the basis of payment and time adjustment for the work necessitated by reason of the modification, requiring the signature of the commissioner, the contractor, and the surety, or their authorized representatives. 2.96. Supplemental specifications means additions to and revisions of the standard specifications that are approved subsequent to issuance of the standard specification book. supplemental specifications prevail over standard specifications when in conflict therewith. 2.97. Surety means the corporation, partnership, or individual, other than the contractor, executing a bond furnished by the contractor. 8 157CSR3 2.98. Temporary structure means a structure required for the use of traffic or other purposes while construction is in progress and not to be retained as part of the improvement. 2.99. Titles means the titles or headings of the sections and subsections are intended for convenience of reference and shall not be considered as having any bearing on their interpretation except those titles and headings used in conjunction with the definition of the terms. 2.100. Traffic lane means the portion of the roadway for the movement of a single line of vehicles. 2.101. Traveled way means the portion of the roadway for the movement of vehicles, exclusive of shoulders and auxiliary lanes. 2.102. Work means the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the project and the carrying out of all duties and obligations imposed by the contract. 2.103. Working day means every day shown on the calendar, exclusive of Saturdays, Sundays, and holidays as set forth in subsection 2.45, on which weather and other conditions not under the control of the contractor will permit construction operations to proceed for a minimum of five hours with normal working forces engaged in performing the controlling item or items of work. 2.104. Working drawings means stress sheets, shop drawings, erection plans, falsework plans, framework plans, cofferdam plans, bending diagrams for reinforcing steel, or any other supplemental plans or similar data which the contractor is required to submit to the engineer for approval. 2.105. Work order means a written order, signed by the engineer, requiring certain performance by the contractor without negotiation. Such order shall not change quantities of major items beyond the 25 percent limitations, shall not create new items, nor make revisions to item prices. §157-3-2. Plans and Specifications for the Construction and Reconstruction of State Roads. 2.1. General Purposes. This series of rules rule is promulgated pursuant to W. Va. Code §29A-1-2(c) to provide Legislative rules to make specific the procedures in relation to the construction and reconstruction of roads and bridges and the furnishing of materials and supplies to the commissioner and to govern contracts pertaining thereto pursuant to the provisions of W. Va. Code §17-4-19, 1931, as amended. 2.2. Preparation of Plans and Specifications. The Commissioner of Highways, either through his or her staff employees or through consultants, shall prepare all plans and specifications for the construction and reconstruction of state roads. No such plans or specifications shall be used by any contractor or by any employee or agent of the State of West Virginia for the purpose of constructing, altering, or repairing any state road until such plans or specifications have been approved in writing by the Commissioner of Highways or his or her authorized representative. 2.2.1. Amendments to Plans and Specifications. The plans and specifications for any state road project may be altered at any time by the Commissioner of Highways if he or she believes the alteration is necessary or desirable for the benefit of the citizens of this state. 9 157CSR3 2.3. Purpose of Plans and Specifications. The purpose of plans and specifications for the construction or reconstruction of any road is to provide the contractor or any other person undertaking such work with detailed directions regarding the work to be done, the manner in which or the method by which such work is to be done, and the materials and equipment which are to be used in such work. The bidder is required to carefully examine the plans, specifications, special provisions, supplemental specifications, contract forms, and the site of the work contemplated. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and has judged and satisfied himself or herself as to the character, quality, and quantity of work to be performed and the material to be furnished under the contract. Accordingly, it is expected that the contractor, or other person who undertakes such work, will follow the plans and specifications in each and every detail. 2.4. Copies of Plans and Specifications. Plans and proposals may be viewed and purchase purchased through the Division’s Bid Express website https://transportation.wv.gov/highways/TechnicalSupport/Pages/default.aspx 2.5. Adoption of Standard Specifications. The Commissioner of Highways may prepare standard specifications to be followed in the construction process of any state road project unless specific provisions of another nature are set forth in the contract. Although these general or standard specifications may be amended or altered by the commissioner at any time, the specifications in effect at the time of the execution of the contract as referenced in the contract documents shall serve as the basis for all transactions between the contractor and the commissioner concerning the compensation due the contractor. §157-3-4. Bidding Requirements and Conditions. 4.1. Pre-qualification of Bidders. All bidders on projects let to contract by the division shall be pre-qualified as provided for by rules or regulations, or both, of the commissioner. Certificate of Qualification will be issued by the commissioner listing the category(s) of work a contractor is qualified to perform. 4.1.a. To obtain a Certificate of Qualification, the contractor must file an Application containing the information as required based on the category of work for which prequalification is being requested. 4.1.b. Applications for qualification will be accepted by the commissioner until 15 calendar days prior to the date set for receiving bids on projects on which the applicant may wish to submit a proposal. Award of a certificate may be held in abeyance until such time as the commissioner is able to verify all references and satisfy himself or herself as to the applicant's qualifications. 4.1.c. No contractor will be issued a Certificate of Qualification until the division has had adequate time to review and verify the adequacy of the information provided in the "Contractor's Prequalification Statement". 4.1.d. It is the contractor’s responsibility to complete any electronic bidding registration from the division, and acquire all the necessary software, hardware, and networking capabilities for the electronic bidding process. 4.2. Contents of Proposal Forms. The proposal forms will show the location and description of the proposed work, the approximate estimates of the various quantities of work to be performed, the amount of the proposal guaranty, the number of working days or date on which the work is to be completed, and the date, time and place of opening of proposals. The form will also include any special provisions or requirements not contained in the Standard Specifications. 10 157CSR3 4.2.a. The plans, specifications, and other documents designated in the proposal form are considered a part of the proposal form whether attached or not attached. 4.3. Interpretation of Approximate Estimates. The quantities appearing in the proposal form are approximate only and are prepared for the comparison of bids. Payment to the contractor will be made only for the actual quantities of work and accepted, or for materials furnished in accordance with the contract. If upon completion of the construction the actual quantities show either increase or decrease, the unit bid prices offered in the proposal will prevail except as further provided. 4.4. Examination of Plans, Specifications and Site of Work. The bidder is required to examine carefully the plans, specifications, supplemental specifications, contract forms, and the site of the work contemplated. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and has judged for and satisfied himself or herself as to the character, quality, and quantity of work to be performed and material required to be furnished under the contract. 4.5. Preparation of Proposal. The bidders’ proposal must be submitted through the division’s bid express website. The bidder must furnish a unit price or a lump sum price as called for in the proposal, in numerical figures, for each pay item listed, except that in the case of alternates, the bid may be made on only one alternate if so desired. 4.5.a. The contractor or qualified and authorized agent shall use a digital signature as provided at law for the proposal submission. 4.5.b. The proposal shall comply with West Virginia Contractor Licensing Act, W. Va. Code §30-42-1 et seq., except that on federal-aid projects a contractor’s license is not required at time of bid, but will be required before work can begin. 4.6. Irregular Proposals. Proposals will be considered irregular and will be rejected for any of the following reasons: 4.6.a. When the Proposal is not submitted by the electronic file furnished by the Contract Administration Division on Bid Express or if the form is altered. Use of a Contract Administration Division approved computer generated Schedule of Items is not considered an alteration of the form or format. 4.6.b When there are unauthorized additions, conditional or alternate bids, or irregularities of any kind which may tend to make the proposal incomplete, indefinite, or ambiguous as to its meaning. Also, when division approved computer generated schedule of items show any alteration of format, additions or amendments not called for, errors or omissions in units of measure, or measures or erasures. 4.6.c When the bidder adds any provisions reserving the right to accept or reject an award, or to enter into a contract pursuant to an award. This does not exclude a bid limiting the maximum gross amount of awards acceptable to any one bidder at any one bid letting, provided that any selection of awards will be made by the division. 4.6.d Failure to sign or properly execute the proposal. 4.6.e Failure to indicate a proposed goal in Section C, Item 3 of the notice contained in the proposal, when a division determined goal is indicated in paragraph 5 of the special provision for Disadvantaged Business Enterprise Utilization. 11 157CSR3 4.6.f. Failure to properly acknowledge receipt of amendments in accordance with Section J of the notice contained in the proposal. 4.6.g. Failure to show an unexpired West Virginia Contractor’s License Number when required in Section H of the notice contained in the proposal. 4.6.h. The bidder is not prequalified in the categories of work indicated in the proposal in a combination of those categories of work in order to perform work amounting to not less than 30% of the contract cost. 4.6.i. The proposal is mathematically and materially unbalanced. A mathematically unbalanced bid contains lump sum or unit price items that do not include reasonable labor, equipment, and material costs plus a reasonable proportionate share of the Bidder’s overhead costs, other indirect costs and anticipated profit. A Materially Unbalanced Bid is when the Division determines that an award to the Bidder submitting a Mathematically Unbalanced Bid will not result in the lowest ultimate cost to the Division. 4.7. Proposal Guaranty. No proposal will be considered unless accompanied by a digitally signed proposal guaranty bid bond in the amount specified in the proposal, made payable to the West Virginia Division of Highways. Bid bonds will be accepted only if submitted electronically. Any proposal accompanied by a bond executed on a copy, duplicate, or facsimile will be rejected. 4.8. Delivery of Proposals. Each proposal shall be submitted electronically and must be received by the Bid Express website by the time designated in the proposal to proceed with the letting. 4.9. Bidders may withdraw Proposals during the course of reading of bids prior to the actual reading of bids on the project for which the bid is withdrawn only electronically through the Bid Express automatic bid withdrawal function or by providing a written document at the site of the letting in the following form: “I, the undersigned, of ________________________, Contractor(s) hereby acknowledge that I have this day withdrawn the sealed bid of _________________________________, Contractor(s) on West Virginia Division of Highways Project No. __________________________”. Should a bidder wish to provide a written document at the site of the letting, they must notify the Division of their intent to do so via email to DOHContractProcure@wv.gov no later than 4:00 PM Eastern Time on the Friday before the scheduled letting. Additionally, the written notice(s) provided by the bidder withdrawing his or her bid(s) must be provided prior to the reading of the call(s) on which the bid is being withdrawn. No bid may be withdrawn on any call once the apparent bids have been read by the Division. 4.10. Combination Proposals. If the division so elects, proposals may be issued for projects in combination or separately, so that bids may be submitted either on the combination or on separate units of the combination. The division reserves the right to make awards on combination bids or separate bids to the best advantage of the division. No combination bids other than those specifically set up in proposals by the division will be considered. Separate contracts will be written for each individual project included in the combination. 4.11. Public Reading of Proposals. Proposals will be received, decrypted, read publicly, and published at the time and place indicated in the notice to contractors. Bidders, their authorized agents, and other interested parties are invited to be present. 12 157CSR3 4.12. Disqualification of Bidders. Either of the following reasons may be considered as being sufficient for the disqualification of a bidder and the rejection of his or her proposal or proposals. 4.12.a. More than one proposal for the same work from an individual, firm, or corporation under the same or different name. 4.12.b. Evidence of collusion among bidders. Participants in such collusion will receive no recognition as bidders for any future work of the division until any such participant shall have been reinstated as a qualified bidder. 4.13. Material Guaranty. The successful bidder shall furnish a complete statement of the origin, composition and manufacture of all materials to be used in the construction of the work, together with samples when required. Samples may be subjected to the tests provided for in the specifications to determine their quality and fitness for the work. 4.14. Free Competitive Bidding Affidavit. Prior to the approval of federal-aid contracts, a sworn statement in the form of an affidavit shall be executed by, or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded. §157-3-5. Award and Execution of Contract. 5.1. Consideration of Proposals. After the proposals are opened, read publicly, and published, they will be compared on the basis of the summation of the products of the approximate quantities shown in the bid schedule by the unit prices. The results of such comparisons will be made immediately available to the public after they are presented to the Division’s award committee. In the event of discrepancy between unit bid prices and extensions, the unit bid price shall govern. 5.1.a. The right is reserved to reject any or all proposals, to waive technicalities or to advertise for new proposals if, in the judgment of the commissioner, the best interests of the State will be promoted. 5.1.b. Proposals containing special provisions for Disadvantaged Business Enterprise utilization will be considered as follows: 5.1.b.1 When the low bidder's goal submitted in section C DBE Utilization Certificate, of the notice contained in the project proposal, meets or exceeds the contract DBE goals, and the division considers the amount of the bid to be reasonable, such bidder will be the successful bidder. 5.1.b.2. When the low bidder's goal submitted in section C, DBE Utilization Certificate, of the notice contained in the project proposal, does not meet the DBE contract goal and the division considers the amount of the bid to be reasonable, the bid will be accepted if he or she can show that good faith efforts were made prior to the bid to meet the contract goals. 5.1.b.3. When the low bidder cannot satisfy the division that good faith efforts have been made, then this bid may be rejected and the second low bid will be evaluated in the same manner. This procedure will continue, evaluating bids in ascending order, until either the contract DBE goal is attained or good faith efforts can be verified and that bid will be accepted provided the amount thereof is considered reasonable by the division. 13 157CSR3 5.2. Award of Contract. The award of contract, if it be awarded, will be made within 30 calendar days after the opening of proposals to the lowest pre-qualified bidder. The commissioner may, with the agreement of the successful bidder, withhold award for any length of time. The successful bidder will be notified in writing to the email address or mailing address on file with the Division, that their bid has been accepted and that they have been awarded the contract. 5.2.a. Contractor’s Direct Deposit Requirements. The contractor shall receive all payments electronically via direct deposit. Prior to award of the contract, the contractor shall be approved and registered to accept payments electronically through the West Virginia State Auditor’s Office. (www.wvsao.gov) 5.3. Cancellation of Award. The division reserves the right to cancel the award of any contract at any time before the execution of the contract documents by all parties without any liability against the division. 5.4. Release of Proposal Guaranty. All proposal guaranties, except those of the two lowest bidders, will be released immediately following the opening and checking of the Proposals. The retained proposal guaranty of the unsuccessful of the two lowest bidders will be released within ten 10 days following the award of contract, and that of the successful bidder will be released after a satisfactory contract bond has been furnished and the contract has been executed. 5.5. Requirement of Contract Bond. At the time of the execution of the contract, the successful bidder shall execute and deliver to the division a good and sufficient surety or collateral bond payable to the State of West Virginia. 5.5.a. The successful bidder is required to submit the aforementioned bond in the amount indicated by that bidder's published Performance Rating. The Ratings and their corresponding bond amounts are available in the Contractor Prequalification Application. The submission of the aforementioned bond in the amount specified is the standard expectation of the Division in order to comply with the current Special Provision for Subcontractor Prompt Payment and does not necessitate the withholding of retainage by the Division from monies due on future progress voucher estimates payable under the terms of the contract. The specified percentage of the contract price required for the bond shall be consistent and applicable throughout the duration of the contract for which the bond is being submitted. 5.6. Insurance Requirements. The contractor shall be required, in addition to any other form of insurance or bonds required under the terms of the contract and specifications, to procure and maintain during the life of the contract the following types of insurance in the amounts set forth. 5.6.a. All such policies of insurance, except for Workers’ Compensation, shall name the Division as an additional insured and shall be occurrence policies and the Certificate of Insurance provided to the Division shall so specify. The policies must provide coverage during the life of the contract regardless of when the claim is filed subject to statute of limitations. 5.6.a.1. Contractor’s General Liability Insurance: The Contractor shall maintain commercial general liability (CGL) coverage with limits not less than: General Aggregate $2,000,000 Products/Completed Operations Aggregate $2,000,000 Personal & Advertising Injury $1,000,000 Each Occurrence * $1,000,000 Damages to Rented Property $300,000 14 157CSR3 Medical Expense Limit $5,000 *Each Occurrence limit shall be $2,000,000 when performing any operations that are subject to 107.8 – Railway-Highway Provisions. 5.6.a.2. The CGL shall be written on ISO occurrence form CG 00 01, or equivalent, and shall cover liability arising from premises-operations, independent contractors, products- completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall be no endorsement or modification of the CGL limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage whenever work involving these exposures are undertaken. The CGL policy shall include endorsements that amend the aggregate limits of insurance to be applicable to each construction project separately. 5.6.a.3. Contractor shall furnish an Acord Form 25-S Certificate of Insurance, or its equivalent, with a 30 day notice of cancellation provisions to evidence this CGL coverage. 5.6.b. Workers’ Compensation Insurance and Employer’s Liability Insurance. The contractor shall also give evidence of insurance for Workers’ Compensation Insurance and Employer’s Liability Insurance, with a 30-day notice of cancellation. The Employer’s Liability policy must include coverage to protect the contractor for claims brought under W. Va. Code §23- 4-2. The limits of insurance under this section shall be as follows: Each accident $1,000,000 Each disease $1,000,000 Each disease/employee $1,000,000 5.6.b.1. Evidence of this coverage can be set forth on the ACORD 25-S specified in paragraph 5.6.a.1 or other approved form and shall provide that West Virginia statutory Workers Compensation coverage is included. 5.6.c. Automobile Insurance. The Contractor shall furnish evidence, with a 30-day notice of cancellation, to the state that it maintains an insurance services office commercial automobile liability insurance policy Form CA0001 or its equivalent. The policy shall include coverage for owned, non-owned, and hired vehicles. 5.6.c.1. The limits for liability insurance must be at least $1,000,000 combined single limit. Evidence for the coverage shall be set forth on an ACORD Form 25-S Certificate of Liability Insurance. 5.6.d. Steam Boiler Insurance. In event steam boilers are used on the work, the Contractor shall furnish evidence that the Contractor carries in their own behalf standard Steam Boiler Insurance having an aggregate limit of not less than $250,000. 5.6.d.1. The insurance specified shall be carried until all work required to be performed under the terms of the Contract is satisfactorily completed as evidenced by the formal acceptance of the State. 5.7. Special Bonds and Insurance. When the work is of such nature that special bond or insurance is required, the special requirements will be detailed and included in the proposal for 15 157CSR3 the project. This coverage could include, but not be limited to, builder’s risk, installation floater, maritime exposures, environmental exposures, and professional liability. 5.8. Execution of Contract. The contract shall be executed by the bidder to whom the contract has been awarded, the bond executed by the principal and the sureties, and the contract and bond returned to the division within 20 days after the date of the notice of the award. 5.9. Failure to Execute Contract. Failure by the bidder to execute the Contract and file acceptable bond within 20 days after notice of award shall be just cause for the annulment of the award; and it is understood by the bidder, in the event of such an annulment of award or the Contract, that the amount of the guaranty deposited with the Proposal will be retained by the Division and deposited in the Division of Highways Fund, not as a penalty, but as liquidated damages. Award may then be made to the next lowest responsible bidder, or the work may be readvertised and constructed under contract or otherwise, as the Division may decide. 5.10. Pre-Construction Conference. As soon as possible after the award of each contract a pre- construction conference will be arranged by the division. The contractor, his or her superintendent, or an authorized agent shall be present at the conference and shall present the proposed schedule of work, list of proposed subcontractors, if any, and a list of suppliers from whom materials are anticipated to be purchased. The information so presented shall be on forms submitted to the contractor with the letter of contract award. The division will make arrangements for utility representatives to be present. §157-3-6. Scope of Work. 6.1. Intent of Contract. The intent of the contract is to provide for the construction and completion in every detail of the work described. The contractor shall furnish all labor, materials, equipment, tools, transportation, and supplies required to complete the work in accordance with the plans, specifications, and terms of the contract. 6.1.a. Should any misunderstanding arise as to the intent or meaning of the contract, or any discrepancy appears therein, the decision of the commissioner shall be final. 6.2. Alteration of Plans or Character of Work. Under no circumstances shall alterations of plans or the nature of the work involve work beyond the termini of the proposed construction except as may be necessary to satisfactorily complete the project. 6.2.a. In addition to the above, alterations in plans or increased quantities of items may be made necessary at a time when the contract or the items involved in the operations are substantially completed, the related contractor organization demobilized, and related equipment essentially removed from the project. Under these circumstances, if it is demonstrated that the unit cost to the contractor has increased, additional compensation may be allowed by the Engineer and the additional work performed as prescribed in subsection 6.3 as "Extra Work." 6.2.b. Any adjustment in compensation because of a change or changes resulting from one or more of the conditions described above will be made in accordance with the provisions of subsection 10.3 of this rule. Any adjustment in contract time because of such change or changes will be made in accordance with the provisions of subsection 10.6 of this rule. 6.3. Extra Work. The contractor shall perform unforeseen work, for which there is no price included in the contract, whenever it is deemed necessary or desirable in order to complete fully the work as contemplated. The work shall be performed in accordance with the Specifications and as directed, and will be paid for as provided by a written supplemental agreement on a unit 16 157CSR3 price or lump sum basis. In the event the engineer and the contractor are unable to agree upon the terms of the supplemental agreement, the contractor shall proceed with the work and receive payment therefore in the manner and amount prescribed in subsection 11.4 of this rule. 6.4. Temporary Structures. In contracts for bridges only, the contractor will not be required to construct or maintain temporary structures unless the construction and maintenance of such structures are stipulated in the contract or ordered as extra work by the engineer. If the building of temporary structures is included in the contract, or added by extra work order, the responsibility of the contractor for accidents to the public or to his or her employees, arising from its construction or maintenance, shall extend to such structure and its roadway approaches. 6.5. Maintenance of Traffic. The project, while undergoing improvement, shall be kept open to all traffic by the contractor so that both local and through traffic will be adequately and safely accommodated. All construction operations shall be scheduled to keep traffic delay to a minimum. The division has adopted, and the contractor shall follow the standard, "Traffic Control for Street and Highway Construction and Maintenance Operations", published by the West Virginia Division of Highways. 6.5.a. All expenses for the following items shall be borne by the contractor without extra compensation except when the proposal provides for payment under 636, Maintaining Traffic: 6.5.a.1. The construction and maintenance of temporary detours, temporary structures, temporary approaches, crossings and intersections with streets and roads, including the furnishing and application of aggregates for maintenance of traffic and liquid asphalt oil, calcium chloride, or water for use as dust palliative. 6.5.a.2. Furnishing flaggers, pilot trucks and drivers. 6.5.a.3. Furnishing, erecting, and maintaining warning devices, such as signs, auxiliary barriers, channelizing devices, hazard warning lights, barricades, flares and reflective markers. 6.5.a.3.A. If actual field conditions are not illustrated in the plans, engineering judgment and discretion shall be exercised to select devices that will be adaptable, but the general policies herein prescribed shall be adhered to. Final responsibility for the installation of adequate safety devices for the protection of the traveling public and employees, as well as for the safeguard of the work in general, shall rest with the contractor. 6.5.a.3.B. During any suspension of work, the contractor shall make passable and shall open to traffic such portions of the project and temporary roadways or portions thereof as may be agreed upon between the contractor and the engineer for the temporary accommodation of necessary traffic during the anticipated period of suspension. Thereafter, and until an issuance of order for the resumption of construction operations, the maintenance of the temporary route or line of travel agreed upon will be by and at the expense of the division. When work is resumed, the contractor shall replace or renew any work or materials lost or damaged because of such temporary use of the project and shall remove, to the extent directed by the engineer, any work or materials used in the temporary maintenance thereof by the division and shall complete the project in every respect as though its prosecution has been continuous and without interference. All additional work caused by such suspensions, for reasons beyond the control of the contractor, will be paid for by the division at contract prices or by extra work. 6.5.b. The division will provide all necessary snow removal. 17 157CSR3 6.6. Rights In and Use of Materials Found on the Work. The contractor, with the approval of the engineer, may use on the project such stone, gravel, sand, or other material determined suitable by the engineer, as may be found in the excavation and will be paid both for the excavation of such materials at the corresponding contract unit price and for the pay item for which the excavated material is used. The contractor shall replace at his or her own expense with other acceptable material all of that portion of the excavation material so removed and used which was needed for use in the embankments, backfills, approaches, or otherwise. No charge for the material so used will be made against the contractor. The contractor shall not excavate or remove any material from within the highway location which is not within the grading limits, as indicated by the slope and grade lines, without written authorization from the engineer. 6.6.a. Unless otherwise provided in the contract, the material from any existing old structures and pipes shall become the property of the contractor and shall be removed from the project. 6.7. Final Clean Up. Before final acceptance is made, the contractor shall clear the highway, waste areas, borrow pits and all ground occupied by the contractor during the construction of all rubbish, excess materials, temporary structures, and equipment. The contractor shall restore in an acceptable manner all property, both public and private, which has been damaged during the prosecution of the work; and shall leave the highway or bridge site, including streams and banks, in a neat and presentable condition in accordance with applicable laws of the state. All excavated material or falsework placed in stream channels shall be removed, and all material from around piers and abutments shall be replaced and compacted to the level of the original surface. 6.8. Bridge Plate. A bronze plate, carrying the project number, the number of the bridge, and the year of the bridge construction, will be furnished and placed by the Contractor without extra compensation. The name plate on through steel bridges shall be placed on the end posts about eight feet vertically above the floor. On other bridges, they shall be placed in the railings as shown on the Plans or as designated by the engineer. The plate shall be a minimum of 8 in. by 10 in. wide, with letters and numbers of 3/4 in. minimum height raised 1/8 in. above the surface of the plate. The information on the plate shall be arranged as follows: Project No. Bridge No. Built (Year of Construction) 6.9. Differing Site Conditions. During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed. 6.9.a. Upon written notification, the engineer will investigate the conditions. If it is determined that the conditions materially differ and cause an increase or decrease in the cost or 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 their determination whether or not an adjustment of the contract is warranted. 18 157CSR3 6.9.b. No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice. 6.9.c. The contractor shall promptly notify the Engineer of alleged changes to the Contract due to differing site conditions, extra work, altered work beyond the scope of the Contract, or action(s) taken by the Division that changed the Contract terms and conditions. 6.9.c.1. No further work is to be performed or contract item expense incurred with relation to the claimed change after the date the change allegedly occurred unless directed otherwise in writing or orally followed up in writing in 48 hours by the engineer. 6.9.c.2. Immediately notify the engineer verbally of the alleged change or extra work occasioned by site conditions or actions by the division, and in writing within five calendar days of the date the alleged change or action was noted. Within 15 calendar days of the written notice, the contractor shall provide the following information to the engineer in writing. 6.9.c.2.A. The date of occurrence and the nature and circumstances of the occurrence that constitute a change. 6.9.c.2.B. Name, title, and activity of each Division representative knowledgeable of the claimed change. 6.9.c.2.C. Identify any documents and the substance of any oral communication involved in the claimed change. 6.9.c.2.D. Basis for a claim of accelerated schedule performance. 6.9.c.2.E. Basis for a claim that the work is not required by the Contract. 6.9.c.2.F. Particular elements of Contract performance for which additional compensation may be sought under this Section including: 6.9.c.2.F.1. Pay item(s) that has been or may be affected by the claimed change. 6.9.c.2.F.2. Labor or materials, or both, that will be added, deleted, or wasted by the claimed change and what equipment will be idled or required. 6.9.c.2.F.3. Delay and disruption in the manner and sequence of performance that has been or will be caused. 6.9.c.2.F.4. Adjustments to contract price(s), delivery schedule(s), staging, and contract time estimated due to the claimed change. 6.9.c.2.F.5. Estimate of the time within which the Department must respond to the notice to minimize cost, delay, or disruption of performance. 6.9.c.2.G. Following submission of the notification to the engineer, and in the absence of directions received to the contrary from an authorized representative of the division, the contractor shall continue diligent prosecution of the work under the contract to the maximum extent possible. Within 15 calendar days after receipt of the written notice and required information, the engineer shall respond in writing to the contractor to: 19 157CSR3 6.9.c.2.G.1. Confirm that a change occurred and, when necessary, direct the method and manner of further performance, or 6.9.c.2.G.2. Deny that a change occurred and, when necessary, direct the method and manner of further performance, or 6.9.c.2.G.3. Advise the contractor that adequate information has not been submitted to decide whether paragraphs 6.9.c.2.G.1. or 6.9.c.2.G.2. applies, and indicate the needed information and date it is to be received by the engineer for further review. The division will respond to such additional information within 15 calendar days of receipt from the contractor. 6.10. Suspension of Work Ordered by the Engineer. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary or inherent in the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within seven (7) calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment. 6.10.a. Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted. 6.10.b. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed. 6.10.c. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract. 6.11. Significant Changes In the Character of the Work. The engineer reserves the right to make, in writing, at any time during the work, changes in quantities and alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered. 6.11.a. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable. 6.11.b. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract. The term "significant change" shall be construed to apply only to the following circumstances: 20 157CSR3 6.11.b.1. When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or 6.11.b.2. When a major item of work, (any item having an original contract value in excess of 10 percent of the original contract amount or $50,000 dollars), is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed. 6.12. Value Engineering. The contractor may submit to the engineer, in writing, Value Engineering Proposals (VEP) for modifying the plans, specifications or other requirements of the contract for the purpose of reducing the total cost of construction without reducing design capacity or quality of the finished product. If accepted by the division, net savings resulting from the VEP will be shared by the contractor and the division on a fifty-fifty basis. 6.12.a. This subsection applies to all VEPs initiated and developed by the contractor and which are identified as such by the contractor at the time of their submission to the engineer; however, nothing shall be construed as requiring the engineer to consider or approve a VEP submitted hereunder. 6.12.b. As a minimum, the following information shall be submitted, in quadruplicate, with each VEP: 6.12.b.1. a statement that this proposal is submitted as a VEP; 6.12.b.2. a description of the difference between the existing contract requirements and the proposed change; 6.12.b.3. a statement concerning the basis for the VEP and benefits to the Division together with an itemization of the contract items and requirements affected by the VEP; 6.12.b.4. separate detailed cost estimates for both the existing contract requirements and the proposed change; 6.12.b.5. an itemization of plan details, design standards or specifications to be changed if the VEP is adopted; 6.12.b.6. an estimate of the effect on collateral costs to the division. Collateral costs are defined to be reduced costs of operation, maintenance or repair and extended useful service life; and 6.12.b.7. a statement of the time by which approval must be issued to obtain the total cost reduction during remainder of contract, noting any effect on contract completion time or delivery schedule. 6.12.c. The division will process the VEP in the same manner as prescribed for any other proposal which would necessitate issuance of a contract change order. The division may accept in whole or in part any VEP by issuing a change order which will identify the VEP on which it is based. The Division will not be liable to the contractor for failure to accept or act upon any VEP submitted pursuant to this provision nor for any delays to the work attributable to any such proposal. Until a proposal is effected by change order, the contractor shall remain obligated to the terms and conditions of the existing contract. When an executed change order has not been issued by the date upon which the contractor's proposal specifies that a decision should be made, 21 157CSR3 or such other date as the contractor may subsequently have specified in writing, such proposal shall be deemed rejected. 6.12.d. The change order effecting the necessary contract modification will establish the estimated net savings agreed upon, will provide for adjustment in the contract prices and will indicate the net savings be equally divided between the contractor and the division. The contractor shall absorb all costs incurred in preparing a VEP for submission to the division. All reasonably incurred costs of reviewing and administering the VEP will be borne by the division. The division reserves the right to include in the change order any conditions it deems appropriate for consideration, approval and implementation of the proposal. The contractor's fifty-percent share of the net savings shall constitute full compensation for effecting all changes pursuant to the change order. 6.12.e. Acceptance of the VEP and performance of the work there under will not change the contract completion date as a result of the VEP, unless specifically provided for in the change order authorizing the VEP. 6.12.f. The division expressly reserves the right to adopt a VEP for general use in contracts administered by the division when it determines the VEP is suitable for application to other contracts without obligation or compensation of any kind to the contractor. 6.12.g. Proposed changes in the basic design of a bridge or pavement type, or which require different right-of-way limits, will not normally be considered as an acceptable VEP. The engineer shall be sole judge of the acceptability of a VEP. 6.12.h. When a VEP is accepted by the division, the provisions of subsection 5.2 of this rule pertaining to adjustment of contract unit price due to alterations of contract quantities will not apply to the items adjusted or deleted as a result of effecting the VEP by change order. 6.12.i. The cost of the revised work, as determined in the value engineering change order, will be paid on current estimates. In addition to such payment, the contractor will be paid, on a lump sum basis by a separate item, one half of the difference (net savings) of the cost of the original contract work and the final cost of the new work listed in the change order. 6.12.j. One fourth of the estimated net savings will be paid to the contractor upon approval of the change order. The remainder of the net savings due the contractor will be paid upon completion of all items of work included in the change order. This final lump sum payment will be determined by the actual quantities for items paid by the unit. Final payment for other lump sum or proposal quantity items will be the change order amount, subject to subsection 11.2 of this rule. 6.13. Funding Source Identification Signs. Funding source identification signs shall be furnished by the contractor if the total contract bid amount of the construction exceeds $500,000 or otherwise noted on the plans, and shall be erected during mobilization of the project. The cost of furnishing, erecting, maintaining, and removal of these signs shall be incidental to the cost of construction of the project. 6.13.a. Location. Funding Source Identification Signs shall be located as directed by the Engineer. The Contractor shall promptly remove each sign at the completion of the project for which the sign was erected. 6.13.b. Sign Content. The content of each sign and the size of letters and the size of board shall be as required by the engineer. The funding agencies and the dollar amounts involved will be furnished to the contractor by the engineer. 22 157CSR3 6.13.c. Sign Construction. The materials for funding source identification signs, such as for the sign panels, their supports, and for the legend and background, are to be of a type and method of fabrication that will be consistent with the conditions and estimated period of use. Signs shall have black letters for the legend on a white background. Reflective sheeting will be permitted, but not required. Mounting, transverse location, height, and similar features for funding source identification signs shall be consistent with practices used for the installation of other informational signs either on wooden or steel U-channel supports to comply with small sign support safety practices. The sign shall be mounted as directed by the engineer. §157-3-7. Control of Work. 7.1. Authority of the Engineer. The engineer will decide all questions which may arise as to the quantity, quality, and acceptability of materials furnished and work performed, and as to the rate of progress of the work; all questions which may arise as to the interpretation of the Plans and Specifications; and all questions as to the acceptable fulfillment of the contract on the part of the contractor. The decision of the engineer will be final. 7.1.a. The engineer will have the authority to suspend the work wholly or in part due to the failure of the contractor to correct conditions unsafe for the employees or the general public, for failure to carry out provisions of the contract, for failure to carry out orders, for such periods as he or she may deem necessary due to unsuitable weather, for conditions considered unsuitable for the prosecution of the work, or for any other condition or reason deemed to be in the public interest. All such suspension orders will be directed to the contractor in writing. 7.1.b. The engineer is not authorized to increase the obligation of the division to any contract except as provided. 7.2. Plans and Working Drawings. Approved plans will show the location, profile, typical cross section, structures except as specified, incidental items, and a summary of all items appearing in the proposal. Any deviations which may be required by the exigencies of the construction will be determined by the engineer and authorized by him or her in writing. The contractor shall keep one set of approved plans available on the work at all times. 7.2.a. Plans will show such details as are necessary to give a comprehensive idea of the construction contemplated. Any information which may be shown on drawings regarding results obtained from the test piles or borings will be a record of conditions encountered at the place where such test piles were driven or borings were made, as nearly as these conditions could be interpreted by the engineer observing the operations. The contractor shall interpret the data in the light of their own experience. The contractor is not bound to accept or rely on the data shown on the drawings, but may make such additional borings and investigations, including test piles, as he or she may desire in order to satisfy himself or herself concerning the lengths of piles and the conditions governing or entering into the construction of foundations. 7.2.b. The plans will show the foundation depths and dimensions on which the estimate of quantities is based. These depths and foundation dimensions, however, are subject to such variations as may be necessary to secure a foundation satisfactory to the engineer, and the right is expressly reserved to increase or diminish the dimensions and depths of the foundations as the engineer may determine. 7.2.c. The contractor shall submit to the engineer all stress sheets, shop drawings, erection plans, falsework plans, framework plans, cofferdam plans, bending diagrams for reinforcing steel, or any other supplemental plans or similar data for the engineers use. 23 157CSR3 7.2.d. Working drawings for steel and timber structures shall consist of shop detail, erection and other working plans, showing details, dimensions, sizes of material, and other information necessary for complete fabrication and erection of the work. The division will require shop lists for structural steel to be submitted in a format as set forth by the engineer. 7.2.e. Working drawings for concrete structures shall consist of such detailed plans as may reasonably be required for the successful prosecution of the work and which are not included in the plans furnished by the engineer. These may include plans for falsework, bracing, centering and formwork, masonry layout diagrams, and diagrams for bent reinforcement. 7.2.f. The contractor shall furnish the engineer copies of the working drawings as may be required for approval and for construction purposes, and upon completion of the work, reproducible, full-size tracings of the original drawings shall be delivered to the engineer. The size of the original drawings shall be 22 inches by 36 inches (A1 metric paper), including margins, unless otherwise permitted. The working drawings submitted for approval may be reduced. 7.2.g. It is expressly understood that the approval by the engineer of the contractor's working drawing relates to the requirements for strength and general arrangement, and such approval will not relieve the contractor from responsibility for omission, errors in dimensions, shop fits, field connection, etc., for quantity of materials, or from any of their responsibility under the contract for the successful completion of the work. 7.2.h. The contract price shall include the cost of furnishing all working drawings, and the contractor will be allowed no extra compensation for such drawings. 7.2.i. It is the contractor's responsibility to determine the exact location of each utility in project areas where these utilities would be interrupted or damaged by performing work. In the event of damage or disruption to utilities which are active and are to remain in service, the contractor shall immediately notify the responsible official of the organization operating the utility that is interrupted. The contractor shall assume all costs, charges or claims connected with the interruption and repair of any utility damaged by the contractor. 7.2.j. Shop Drawings. Shop Drawings are working drawings necessary for the fabrication and inspection of the work as may reasonably be required for the successful prosecution of the work and which are not included in the plans furnished by the engineer. 7.2.j.1. Any contractor proposed changes to the contract document shall be submitted to the division for approval prior to certification of the shop drawings. The division will prepare and issue all revisions to the contract plans dictated by these approved changes. 7.2.j.2. Shop drawings shall be submitted sufficiently in advance of the start of the work to allow time for distribution by the engineer without delaying the work. Only certified copies of shop drawings that have been distributed by the engineer shall be considered approved by the project personnel. Copies of the shop drawings which do not contain the certification stamp and have not been distributed by the engineer and are used for construction of any part of the work shall be at the contractor’s risk. 7.2.j.3. Upon completion of the work, reproducible, full-size tracings of the original drawings shall be delivered to the engineer. The size of the original drawings shall be 22 inches x 34 inches, including margins, unless otherwise permitted. 7.2.j.4. Shop drawings shall give full detailed dimensions and sizes of component parts of the structure and details of all miscellaneous parts, such as pins, nuts, bolts, drains, 24 157CSR3 reinforcing, inserts, strands, ducts, etc. Where specific orientation of parts is required, such as the rolling of plates, the direction shall be shown. 7.2.j.5. Shop drawings shall specifically identify the AASHTO material designation for all component parts. 7.2.j.6. All working drawings shall be in same units as those used in the plans. Use of dual (metric and English) units is not allowed. 7.2.j.7. Shop drawings shall give full detailed dimensions and sizes of component parts of the structure and details of all miscellaneous parts. 7.2.j.8. Design camber for all members shall be shown on the shop drawings. 7.2.j.9. Any time delays encountered due to incomplete or incorrect submittals shall be the contractor’s responsibility. The time delay shall not be grounds for a claim to extend the contact completion date or a claim for costs incurred by the contractor, his subcontractors, or his suppliers. 7.2.j.10. There are two methods for the approval of Shop Drawings and catalog sheets the “Division Approval Method” and the “Contractor Approval Method”. The item of work shown in the shop drawing shall determine the required approval method. Most projects will contain items of work requiring each method. Design Directive 102 (DD-102) latest version at the time of the bid shall be used to determine which method to use for a particular item of work and where to send each required submission. 7.2.k. “Division Approval Method”. The contractor shall be responsible for the submission of all shop drawings and catalog sheets, and shall submit two (2) review copies as shown in DD- 102. After the division has approved the shop drawings the contractor shall submit nine (9) copies of the shop drawings to the Engineer for verification and distribution. 7.2.k.1. The review and approval or rejection of division approved shop drawings will normally require 14 calendar days after receipt of the drawings. 7.2.k.2. The verification and distribution of division approved shop drawings will normally require seven (7) calendar days after receipt of the drawings. 7.2.l. “Contractor Approval Shop Method”. The contractor shall be responsible for the submission of all approved shop drawings and catalog sheets, and shall submit nine (9) copies of all approved shop drawings and catalog sheets to the engineer for distribution. The contractor’s engineer shall be responsible for the preparation, review, and approval of all shop drawings and catalog sheets. 7.2.l.1. Each page/sheet of all shop drawings submittals shall be signed by a Professional Engineer Registered in the State of West Virginia. The approving engineer’s signature block shall be per the following: “I do hereby certify that the details, materials, methods, and dimensions shown on this document meet the requirements for general arrangement and comply with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project. This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided. 25 157CSR3 ame Reg.N Date” o. 7.2.l.2. Each page/sheet of all catalog sheet submittals shall be signed by a Professional Engineer Registered in the State of West Virginia. The approving engineer’s signature block shall be per the following: “I do hereby certify that this product complies with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project. This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided. ame Reg.N Date” o. 7.2.l.3. The contractor’s authorized representative may sign and approve catalog sheets when the item on the catalog sheets is identical in every way to the item identified in the approved contract plans. If the item is not identical then the catalog sheets must be signed by a Professional Engineer Registered in the State of West Virginia as stated above. The contractor’s authorized representative must have the authority to sign legal binding contracts for the prime contractor. When the contractors’ authorized representative signs the certification the following approving signature block shall be used: “I do hereby certify that this product complies with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project and is the identical item shown in the approved plans. This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided. ame Reg.N Date” o. 7.2.l.4. All nine (9) copies of each copy of each page/sheet shall be signed by the same engineer and shall contain the same date. Each revision to individual page/sheet shall be considered a new submittal and shall require nine (9) certified copies. The division will verify the above requirements are met prior to distribution. The division shall return all nine (9) sets on any submittal which does not comply with the requirements of this special provision. The verification and distribution or rejection of contractor approved shop drawings will normally require seven (7) calendar days after receipt of the drawings. 7.2.l.5. Additional certifications and/or slightly different wording of the above two certifications may be used if approval is given by the legal division. This approval must be obtained prior to any submission of contractor approved shop drawings. This approval may take up to thirty (30) days to be obtained. If this approval is obtained, a copy of the approval letter must be submitted with the first submission of shop drawings for distribution. 7.2.l.6. The division shall reserve the right to review any submission of shop drawings or catalog sheets. This review shall not delay the contractor in the construction project or delay the distribution of the approved shop drawings or catalog sheets. 26 157CSR3 7.3. Conformity with Plans and Specifications. All work performed and all materials furnished shall be in reasonably close conformity with the lines, grades, cross sections, dimensions, and material requirements, including tolerances, shown on the plans or indicated in the specifications. 7.3.a. Should the engineer determine the materials, or the finished product do not conform to the specifications or the plans, he or she will then make a determination if the work will be accepted and remain in place in accordance with subdivision 8.3.c.1 and subsection 8.7 of this rule. In this event, the engineer will document the basis of acceptance by contract modification which will provide for an adjusted payment. All nonconforming material or construction judged to be inadequate for the use intended shall be either reworked or removed and replaced at no expense to the division. 7.3.b. Each supplemental agreement containing an adjusted price will also have added the sum of two hundred dollars to each adjusted price, for the division's administration costs, to be deducted from monies due the contractor. 7.4. Coordination of Plans, Specifications, Supplemental Specifications, and Special Provisions. The specifications, the supplemental specifications, the plans, special provisions, and all supplementary documents are essential parts of the contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary and to describe and provide for a complete work. In case of discrepancy, calculated dimensions will govern over scaled dimensions; supplemental specifications will govern over specifications; plans will govern over specifications and supplemental specifications; special provisions will govern over specifications, supplemental specifications, and plans. When the plans provide that new work is to connect with existing structures, the contractor must verify all dimensions with the engineer before proceeding with the work. 7.4.a. The specifications, supplemental specifications, and special provisions are preferred and primarily in English Units. However, there are instances when metric may be used. 7.4.b. The contractor shall take no advantage of any apparent error or omission in the plans or specifications. In the event the contractor discovers such an error or omission, he or she shall immediately notify the engineer. The engineer will then make such corrections and interpretations as may be deemed necessary for fulfilling the intent of the plans and specifications. 7.5. Cooperation By Contractor. The contractor will be furnished a maximum of one (1) complete set of plan and profile sheets and one (1) complete set of cross sections upon request, without charge. The contractor shall maintain on the project at all times one complete set of plans, specifications, and special provisions. 7.5.a. The contractor shall give the work the constant attention necessary to facilitate the progress thereof, and shall cooperate with the engineer, his or her inspectors, other contractors, and utilities in every way possible. 7.5.b. The contractor shall have on the work at all times, as his or her agent, a competent superintendent capable of reading and thoroughly understanding the plans and specifications, and thoroughly experienced in the type of work being performed, who shall receive instructions from the engineer or his or her authorized representatives. The superintendent shall have full authority to execute orders or directions of the engineer without delay, and to promptly supply such materials, equipment, tools, labor, and incidentals as may be required. Such superintendence shall be furnished irrespective of the amount of work sublet. 7.5.c. The contractor shall furnish to the engineer a list of addresses and telephone numbers of his or her personnel who may be reached in case of emergency during hours when 27 157CSR3 no work is to be performed. On weekends, holidays, during suspensions of work, and during storms the contractor shall alert certain of his or her personnel to stand by and shall inform the engineer of arrangements so made. 7.5.d. The contractor shall provide all reasonable facilities and furnish the division the information, assistance and samples required by the engineer and inspector for proper inspecting or testing of materials and workmanship. 7.5.e. On some contracts it may be necessary to ensure proper coordination between the work of the contractor and the work of various utilities, to hold a pre-construction utility meeting. The division will arrange for the affected utilities to be present. The contractor or his or her representative, authorized to make decisions for him or her in regard to the scheduling of the proposed work, is required to attend the meeting. A report of the pre-construction utility meeting will be prepared and distributed by the engineer to all represented at the meeting. 7.6. Cooperation with Utilities. The division will notify all utility companies, all pipeline owners, or other parties affected, and endeavor to have all necessary adjustments of the public or private utility fixtures, sewers, pipe lines, and other appurtenances within or adjacent to the limits of construction, made as soon as practicable. 7.6.a. Water lines, gas lines, wire lines, sewer lines, service connections, water and gas meter boxes, water and gas valve boxes, light standards, cableways, signals, and all other utility appurtenances within the limits of the proposed construction which are to be relocated or adjusted are to be moved by the owners at their expense, except as otherwise provided for in the special provisions or as noted on the plans. 7.6.b. Should the contractor desire temporary changes of location for his or her convenience of any utility appurtenances, the contractor shall satisfy the division that the proposed relocation does not interfere with his or her or other contractors' operations of the requirements of the work and does not cause an obstruction or a hazard to traffic. The contractor shall make his or her own request to the utility or other parties affected by such relocation work. Such relocation work shall be made solely at the contractor's expense. 7.6.c. Any work done under or within the right-of-way of a railroad shall be under the supervision and control of the chief engineer, or other designated officer, of the railroad to the extent necessary in the judgment of the chief engineer, or other designated officer, to insure safe and uninterrupted operation of its trains and the convenient conduct of its business. Any additional conditions or requirements for doing work within the railroad right-of-way will be set forth in the contract. Provided that the railroad must act in good faith in commencing, proceeding with and concluding the plan review in a meaningful and prompt fashion. Examples of failing to act in good faith, include effecting delay to force terms into either a deed, agreement, or other instrument which violate state law or the state constitution or causing delay upon matters which do not relate to preventing the impeding of rail operations or posing undue safety risks or otherwise ensuring that works are planned to be so constructed as not to impede the passage or transportation of persons, property or commodities. Examples include but are not limited to insisting on direct indemnity by the state or any of its agencies. 7.6.d. In general, it is to be understood that the contractor has considered in his or her bid all of the permanent and temporary utility appurtenances in their present or relocated positions as shown on the plans, and that no additional compensation will be made by the State for any delays, inconvenience, or damage sustained by him or her due to interference from the utility appurtenances or the operation of moving them. The locations of the underground utilities shown on the plans have been obtained by diligent field checks and searches of available records. It is 28 157CSR3 believed that they are essentially correct, but the division makes no guarantees as to their exact locations. 7.6.e. It is the contractor's responsibility to determine the exact location of each publicly or privately owned utility transmission line (pipeline, conduit, wires, cable, etc.) in project areas where these lines would be interrupted or damaged by performing work. In the event of damage or disruption to utility transmission lines which are active and are to remain in service, the contractor shall immediately notify the owner or the responsible official of the organization operating the lines that are interrupted. The contractor shall assume all costs, charges or claims connected with the interruption and repair of any utility transmission lines damaged by the contractor. 7.7. Cooperation Between Contractors. The division reserves the right at any time to contract for and perform other or additional work on or near the work covered by the contract. 7.7.a. When separate contracts are let within the limits of any one project, each contractor shall conduct his or her work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall cooperate with each other as directed. 7.7.b. Each contractor involved shall assume all liability, financial or otherwise, in connection with his or her contract and shall protect and save harmless the division from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him or her because of the presence and operations of other contractors working within the limits of the same project. 7.7.c. The contractor shall arrange his or her work and shall place and dispose of the materials being used so as not to interfere with the operations of the other contractors within the limits of the same project. The contractor shall join his or her work with that of the others in an acceptable manner and shall perform it in proper sequence to that of the others. 7.7.d. In the event the engineer finds that further coordination effort is necessary, he or she shall call a meeting of the contractors involved. After the meeting has been held, he or she may notify the contractors of the action required of each and his or her decision shall be final. 7.8. Construction Stakes, Lines and Grades. Except when "Construction Layout Stakes" is included in the contract, the engineer will set construction stakes establishing lines, slopes, and continuous profile-grade, together with necessary reference stakes and bench marks. The engineer will set sufficient right-of-way stakes to define right-of-way limits. The engineer will set stakes to mark center line and establish benchmarks for bridges and special structures as may be considered necessary. 7.8.a. The stakes and marks in the paragraph above shall constitute field control by and in accordance with which the contractor shall establish all additional stakes and marks necessary to secure a correct layout of all the work. All stakes, except those set by the engineer, shall be furnished by the contractor. The contractor shall not engage the services of any person or persons in the employ of the division for the performance of any of the contractor's layout work. 7.8.b. The contractor shall be responsible for having the finished work in reasonably close conformity with the lines, grades elevations, and dimensions called for on the plans or established by the engineer. The contractor shall be held responsible for the preservation of stakes, marks, and references, and shall have them reset at the contractor’s expense when they are damaged, lost, displaced, or removed. 29 157CSR3 7.9. Authority and Duties of the Project Engineer or Project Supervisor. The project engineer or supervisor has immediate charge of the engineering details of each construction project. The engineer or supervisor is responsible for the administration and satisfactory completion of the project. The project engineer or supervisor has the authority to reject defective material and to suspend any work that is being improperly performed. 7.9.a. The project engineer or supervisor will have the authority to suspend the work wholly or in part due to the failure of the contractor to correct conditions unsafe for the employees or the general public; for failure to carry out provisions of the contract; for failure to carry out orders; for such periods as he or she may deem necessary due to unsuitable weather. All such suspension orders will be directed to the contractor in writing. The suspension of the work for the above reasons does not relieve the contractor of his or her responsibility according to subsection 9.16 of this rule. 7.10. Authority and Duties of the Inspector. Inspectors employed by the division will be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work and to the preparation, fabrication or manufacture of the materials to be used. The inspector is not authorized to alter or waive the provisions of the contract. The inspector is authorized to call the attention of the contractor to any failure of the work or materials to conform to the specifications and contract. The inspector is authorized to reject materials which do not meet specification requirements or suspend the portion of the work involved until any question at issue can be referred to the project engineer or project supervisor. The inspector is not authorized to issue instructions contrary to the plans and specifications. The inspector shall not act as foreman or perform other duties for the contractor, nor interfere with the management of the work by the latter. 7.11. Inspection of Work and Materials. All materials and each part or detail of the work shall be subject to inspection by the engineer. The engineer or a representative shall be allowed access to all parts of the work and shall be furnished with such information and assistance by the contractor as is required to make a complete and detailed inspection. To facilitate the inspection of materials, all delivery tickets shall contain as a minimum the information required in MP 700.00.01. 7.11.a. If the engineer requests it, the contractor, at any time before acceptance of the work, shall remove or uncover such portions of the finished work as may be directed. After examination, the contractor shall restore said portions of the work to the standard required by the specifications. Should the work thus exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed will be paid for as extra work; but should the work so exposed or examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed shall be at the contractor's expense. 7.11.b. Any work done or materials used without supervision or inspection by an authorized division representative may be ordered removed and replaced at the contractor's expense. Failure to reject any defective material or work shall not in any way prevent later rejection when such defects are discovered, nor obligate the division to final acceptance. 7.11.c. When any unit of government or political subdivision or any railroad corporation is to pay a portion of the cost of the work covered by this contract, its respective representatives shall have the right to inspect the work. Such inspection shall in no sense make any unit of government or political subdivision or any railroad corporation a party to this contract, and shall in no way interfere with the rights of either party hereunder. 30 157CSR3 7.11.d. No work shall be done at night, Saturdays, Sundays or Holidays without documented prior approval of the engineer. 7.12. Removal of Unacceptable and Unauthorized Work. Except as provided in subsection 7.3 of this rule, all work which does not conform to the requirements of the contract is unacceptable work. 7.12.a. Unacceptable work, whether the result of poor workmanship, use of defective materials, damage through carelessness or any other cause, found to exist prior to the final acceptance of the work, shall be removed immediately and replaced in an acceptable manner. 7.12.b. Unacceptable material shall be removed from the job site. No work shall be done without lines and grades having been given or approved by the engineer. Work done contrary to the instructions of the engineer, work done beyond the lines shown on the plans, or as given, except as herein specified, or any extra work done without authority, will be considered as unauthorized and will not be paid for under the provisions of the contract. Work so done may be ordered removed or replaced at the contractor's expense. 7.12.c. Upon failure on the part of the contractor to comply promptly with any order of the engineer, made under the provisions of this subsection, the engineer will have authority to cause unacceptable work to be remedied or removed and replaced and unauthorized work to be removed, and to deduct the costs from any monies due or to become due the contractor. 7.13. Load Restrictions. The contractor shall comply with all legal load restrictions in the hauling of materials on public roads. A special permit will not relieve the contractor of liability for damage which may result from the moving of equipment. 7.13.a. The operation of equipment of such weight or so loaded as to cause damage to structures or the roadway or to any other type of construction will not be permitted. Hauling of materials over the base course or surface course under construction shall be limited as directed. No loads will be permitted on a concrete pavement, base or structure before the expiration of the curing period. In no case shall legal load limits be exceeded unless permitted in writing. The contractor shall be responsible for all damage done by their own equipment. 7.14. Maintenance During Construction. The contractor shall maintain the work during construction and until the project is accepted except as otherwise provided in subdivision 7.16.a. This maintenance shall constitute continuous and effective work prosecuted day by day, with adequate equipment and forces to the end that the roadway and structures are kept in satisfactory condition at all times. 7.14.a. In the case of a contract for the placing of a course upon a course or sub-grade previously constructed, the contractor shall maintain the previous course or sub-grade during all construction operations. 7.14.b. All cost of maintenance work during construction and before the project is accepted shall be included in the unit prices bid on the various pay items, and the contractor will not be paid an additional amount for such work except as otherwise provided in subsection 6.5 of this rule. 7.15. Failure to Maintain Roadway or Structure. If the contractor, at any time, fails to comply with the provisions of subsection 7.14 of this rule, the engineer will immediately notify the contractor of such non-compliance. If the contractor fails to remedy unsatisfactory maintenance within 24 hours after receipt of such notice, the engineer may immediately proceed to maintain 31 157CSR3 the project, and the entire cost of maintenance will be deducted from monies due or to become due the contractor on their contract. 7.16. Acceptance. 7.16.a. Partial Acceptance. If at any time during the prosecution of the project, the contractor completes a unit or portion of the project, such as a structure, an interchange, or a section of road or pavement, he or she may request the engineer to make final inspection of that unit. If the engineer finds upon inspection that the unit has been completed in compliance with the contract, he or she may accept that unit as being completed and the contractor may be relieved of further responsibility for that unit. Such partial acceptance shall in no way void or alter any of the terms of the contract. 7.16.b. Final Acceptance. Upon due notice from the contractor of presumptive completion of the entire project, the engineer will make an inspection. If all construction provided for and contemplated by the contract is found completed to his or her satisfaction, that inspection will constitute the final inspection. The engineer will make the final acceptance and notify the contractor in writing of this acceptance. Final acceptance will be the date the Contract Completion Report is fully executed by the division. 7.16.b.1. If, however, the inspection disclosed any work, in whole or in part, as being unsatisfactory, the engineer will give the contractor the necessary instruction for correction of same in writing, and the contractor shall immediately comply with and execute such instructions. Upon correction of the work, another inspection will be made which will constitute the final inspection provided the work has been satisfactorily completed. In such event, the engineer will make the final acceptance and notify the contractor in writing of this acceptance. Final acceptance will be the date the Contract Completion Report is fully executed by the division. 7.17. Claims for Adjustment and Disputes. If additional compensation is considered due for work or material not covered in the contract, written notification of the intent to make a claim under subsection 6.9 shall be given to the engineer before beginning or continuing the affected work. 7.17.a. The Engineer will respond as described under subsection 6.9 following notification. The contractor shall provide necessary cooperation and information to the engineer during the period of notification, review, and evaluation to provide possible resolution of the contract question and avoid, if possible, further claim process actions. 7.17.b. If notification is not given, or the contractor does not afford the engineer proper facilities for keeping strict account of actual costs, the contractor waives any claim for additional compensation. Notice by the contractor, and the fact that the engineer has kept account of the costs shall not be construed as substantiating the validity of the claim. An equitable adjustment will be made to the contract if the claim is found to have merit. 7.17.c. Claim submittals shall be in sufficient detail to enable the engineer to determine the basis for entitlement and the resulting costs. The following information if available, should accompany each claim submitted: 7.17.c.1. Detailed factual statement of the claim providing all necessary dates locations, and items of work affected by the claim. 7.17.c.2. The date actions resulting in the claim occurred or conditions resulting in the claim became evident. 32 157CSR3 7.17.c.3. A copy of the "Notice of Potential Claim" form (available from the division), filed by the contractor for the specific claim. 7.17.c.4. The name, title, and activity of each department employee knowledgeable for the specific claim. 7.17.c.5. The name, title, and activity of each contractor employee knowledgeable about the facts that gave rise to such claim. 7.17.c.6. The specific provisions of the contract that support the claim, and a statement why the provisions support the claim. 7.17.c.7. The identification of any pertinent documents, and the substance of any material communications relating to the claim. 7.17.c.8. A statement whether the additional compensation or extension of time is based on the provisions of the contract or an alleged breach of contract. 7.17.c.9. If an extension of time is also sought, the specific days for which it is sought and the basis for such claim as determined by an analysis of the construction schedule. 7.17.c.10. The amount of additional compensation sought and a breakdown of that amount. 7.17.d. Required Certification of Claims. The claim submittal shall include the contractor's written certification, under oath, attesting to the following: 7.17.d.1. The claim is made in good faith. 7.17.d.2. Supportive data is accurate and complete to the contractor's best knowledge and belief. 7.17.d.3. The amount of the claim accurately reflects the contractor's actual cost incurred. 7.17.e. In complying with this requirement, the contractor shall use the following certification: Under penalty of law for perjury or falsification, the undersigned ___________________ (Company), hereby certifies that the claim for extra compensation and time, if any, made herein for work on this Contract is a true statement of the actual costs incurred and time sought, and is fully documented and supported under the Contract between the parties this ________ day of __________, _______. _______________________(Company) By_____________________________ Its_____________________________ ATTEST: By_____________________________ 33 157CSR3 Its_____________________________ 7.17.f. Review of Claims. All claims filed will be subject to review by the division at any time following the claim filing, whether or not the claim is part of a suit pending in the courts of this state. The review may begin upon submission. The contractor, subcontractor(s), or supplier(s) shall cooperate with the division and shall, at a minimum, provide access to the following documents of the contractor, subcontractor(s), its/their subsidiaries, separate divisions, and affiliates if said documents are available: 7.17.f.1. Daily time sheets and foreman's daily reports. 7.17.f.2. Union agreements if any. 7.17.f.3. Insurance, welfare, and benefits records. 7.17.f.4. Payroll register. 7.17.f.5. Earnings records. 7.17.f.6. Payroll tax returns. 7.17.f.7. Material invoices, purchases orders, and all material and supply Acquisition Contracts. 7.17.f.8. Material cost distribution worksheets. 7.17.f.9. Equipment records (list of company equipment, rates, etc.). 7.17.f.10. Vendor rental agreements and subcontractor invoices. 7.17.f.11. Subcontractor payment certificates. 7.17.f.12. Canceled checks (payroll and vendors). 7.17.f.13. Job cost report. 7.17.f.14. Job payroll ledger. 7.17.f.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. 7.17.f.16. Cash disbursements journal. 7.17.f.17. Depreciation records on all company equipment. 7.17.f.18. All other documents used to develop costs for the contractor's internal purposes in establishing the actual cost of owning and operating equipment. 7.17.f.19. All documents related to the preparation of the contractor's bid including the final calculations on which the bid was based. 7.17.f.20. Worksheets used to prepare the claim, establishing the cost components for items of the claim including, but not limited to, labor, benefits and insurance, 34 157CSR3 materials, equipment, subcontractors, and all documents that establish the time periods, individuals involved, the hours and the rates for the individuals. §157-3-8. Control of Material. 8.1. Source of Supply and Quality Requirements. The material used on the work shall meet all quality requirements of the contract. To expedite the inspection and testing of materials, the contractor shall notify the engineer of his or her proposed sources of material as required in subsection 5.10 of this rule. At the option of the engineer, materials may be approved at the source of supply before delivery is started. If it is found after trial that sources of supply for previously approved materials do not produce specified products, the contractor shall furnish materials from other sources at no increase in cost to the division. 8.1.a. The contractor shall provide and maintain a quality control system. This quality control system shall conform to all requirements of the specifications. 8.1.b. The contractor shall maintain equipment and qualified personnel to perform all sampling and testing to determine the magnitude of the various properties of the materials during manufacturing and placement as governed by the specifications and shall maintain those properties within the limits of the specifications. 8.1.c. The contractor shall design a quality control plan detailing the methods by which the quality program will be conducted. 8.1.d. The quality control plan shall be in accordance with the applicable specifications and material procedure(s) for the specified item. The plan should clearly describe the methods by which the quality control program will be conducted. The quality control plan shall be submitted to the engineer at the pre-construction conference. The work shall not begin on the applicable item(s) until the plan has been reviewed and found to be in conformance with the contract documents and accepted by the engineer. Items that require testing by the contractor, but stipulate that acceptance shall be based upon written certification, do not require quality control plans. 8.1.e. Domestic Aluminum, Glass, Steel and Iron in Public Works Project. 8.1.f. Definitions. Unless the context in which used clearly requires a different meaning, as used in this section: 8.1.f.1. "Public Works" includes roads, highways, streets, bridges, sidewalks, sewage systems, buildings, engineering and architectural works, and any other structure, facility or improvement constructed or undertaken by the division. "Aluminum, glass, steel and iron products" means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed from aluminum, glass, steel, and iron. "Domestic aluminum, glass, steel and iron products" means aluminum, glass, steel, and iron products made in the United States. 8.1.f.2. Buy America requirements apply to coating. Coating is considered a manufacturing process and is interpreted to mean all processes that protect or enhance the value of a material or product to which it is applied such as epoxy coatings, galvanizing or painting. 8.1.g. Preference For Domestic Aluminum and Glass Products. The division shall require that all aluminum or glass products to be supplied to purchase order or state and federal projects shall be domestic aluminum or glass products in compliance with Chapter 5, Article 19 of the West 35 157CSR3 Virginia Code, unless the offered or bid price of the domestic aluminum or glass products is unreasonable or that the domestic aluminum or glass products are not produced in sufficient quantities to meet the project requirements. The offered or bid price of domestic aluminum or glass products is not unreasonable unless it is more than 20 percent higher than the offered bid price of foreign made aluminum or glass products (including any applicable duty). If the aluminum or glass products to be supplied are produced in a "substantial labor surplus area" as determined by the United States Department of Labor, the offered or bid price of domestic aluminum or glass products is not unreasonable unless it is more than 30% higher than the offered or bid price of foreign-made aluminum or glass products (including any applicable duty). A listing of the "substantial labor surplus areas" can be obtained from the division's contract administration division. This Section does not apply to any state or federal project in an amount less than $50,000.00. 8.1.h. Contract Payments; Recovery in Case of Violation of Section. The division may not authorize or make any payments to a contractor under a contract which contains or should contain the provision required by section 8.1.g. unless such contractor has fully complied with such section. Prior to such payment, the division will require the contractor to furnish a certificate of compliance from each subcontractor and supplier. Payments made by the division to any who did not comply with this section may be recovered by the division. 8.1.i. Procedures For Use of Foreign-Made Materials. If foreign-made aluminum, glass or steel (iron) products are supplied in compliance with this Section, the Contractor shall be responsible for providing procedures acceptable to the Division for determining that specification requirements are met, including all inspections at no additional cost to the Division. The use of foreign-made products will not be reason for granting an extension of time. 8.1.j. Use of Domestic Steel Products. When steel or iron is used it shall be in compliance with Section 165 of the Surface Transportation Assistance Act of 1982, the applicable provisions of Title 23 CFR, Section 635.410, as amended, entitled "Buy America Requirements," and W. Va. Code §§5A-3-56 and 5-19. 8.1.j.1. Pig Iron and processed, pelletized, and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for steel and/or iron materials used in Federal-aid highway construction projects. 8.1.j.2. Division shall require that all steel products to be supplied to purchase order or state and federal projects shall be domestic steel products in compliance with W. Va. Code §5A-3-56. 8.1.j.3. These provisions may not prevent the minimal use of foreign steel provided the proper approval is obtained in writing per W. Va. Code §5A-3-56(b)(1). 8.1.k. Domestic Steel Products. To be a Domestic Steel product all manufacturing processes, including application of a coating, for these materials must occur in the United States including all of its territories, continental, or insular, subject to the jurisdiction of the United States. Steel manufacturing processes shall include rolled, formed, shaped, drawn, cast, fabricated or otherwise similarly processed, or processed by a combination of two or more such operations, from steel made by the open hearth, basic oxygen, electric furnace, bessemer, or other steel making process. Coating includes all processes that protect or enhance the value of the material to which the coating is applied. 8.2. Local Material Sources. 36 157CSR3 8.2.a. Designated Sources. Possible sources of local materials may be designated in the contract documents. The quality of material in such deposits will be acceptable in general, but the contractor shall determine for himself or herself the amount of equipment and work required to produce a material meeting the specifications. It shall be understood that it is not feasible to ascertain from samples the limits for an entire deposit, and that variations shall be considered as usual and are to be expected. The engineer may order procurement of material from any portion of a deposit and may reject portions of the deposit as unacceptable. 8.2.a.1. The division may acquire and make available to the contractor the right to take materials from the sources designated in the contract documents together with the right to use such property as may be specified, for plant site, stockpiles, and haul roads. 8.2.b. Contractor Furnished Sources. If the contractor desires to use material from sources other than those designated, he or she shall acquire the necessary rights to take materials from the sources and shall pay all costs related thereto, including any which may result from an increase in length of haul. All costs of exploring and developing such other sources shall be borne by the contractor. The use of material from other than designated sources will not be permitted until representative samples taken by the engineer have been approved and written authority is issued for the use thereof. 8.2.b.1. When material deposits are not designated in the contract, the contractor shall provide sources of material acceptable to the engineer. 8.2.b.2. When sources of material or material deposits are provided by the division, the division will assume the cost of processing samples to determine the suitability of the material unless otherwise specified. 8.2.b.3. Sites from which material has been removed shall, upon completion of the work, be left in a neat and presentable condition and shall be properly drained. Unless otherwise directed by the engineer, they shall be seeded and mulched as provided in Section 652 of the current edition of the Highways Standard Specifications, Roads, and Bridges, without additional compensation. Where practicable, borrow pits, gravel pits, and quarry sites shall be located so they will not be visible from the highway. 8.2.b.4. In accordance with the agreement between the Division of Highways and the Division of Environmental Protection, the contractor cannot furnish material from borrow areas outside the right of way for any other public or private use. 8.3. Samples, Tests, Cited Specifications. All materials will be inspected, tested, and approved prior to incorporation into the work. Any work which incorporates materials prior to the above evaluation shall be performed at the contractor's risk, and may subsequently be considered unacceptable. Unless otherwise specified, the materials shall meet the applicable Standard or Interim Specifications of the American Association of State Highway and Transportation Officials, the Standard or Tentative Specifications of the American Society for Testing and Materials, or Standards adopted by other specifying agencies, with preference given in the same order in which the above agencies are listed. The specification which is current at the time of advertisement for bids shall govern, except that, with the approval of the engineer, subsequent revisions or adoptions may govern. Applicable tests of materials shall be made in accordance with the methods prescribed by the American Society for Testing and Materials. All materials being used are subject to inspection, testing or rejection at any time prior to final acceptance of the completed work. 8.3.a. The contractor shall be responsible for the quality of construction and materials incorporated therein. When called for in the specifications, the contractor shall perform all 37 157CSR3 necessary process control inspection, sampling, and testing. All materials will be approved for acceptance through the division's acceptance procedures. The division has the exclusive right and responsibility for determining the acceptability of the construction and materials incorporated therein. The division may use the results of the contractor's inspection, sampling and testing for acceptance purposes. 8.3.b. Lot or sub-lot sizes will normally be designated. In the event that operational conditions cause work to be interrupted, or only partially completed before the lot size designated has been achieved, the lot or sub-lot may be redefined by the engineer as being either the amount of work accomplished within the day or that work partially completed combined with the next lot or sub-lot of work. It is the intent of these specifications that the number of samples required to evaluate each lot or sub-lot will be unchanged even when the lot or sub-lot is redefined. 8.3.c. When an acceptance plan is cited, it shall be in accordance with paragraph 8.3.c.1. 8.3.c.1. Acceptance Plans. 8.3.c.1.A. Percent Within Tolerance: The percentage of each lot or sublot of material, product, item of construction, or completed construction within the specified tolerances will be determined by the procedures as referenced by the specification requirements. When West Virginia AP-A is referenced, it will consist of Tables 106-1 to 106-5 inclusive, published in MP 106.00.20. 8.3.c.1.B. Sampling of Reworked Lots or Sub-lots: It is the intent of these specifications that lots or sub-lots of materials, products, items of construction or completed construction meet specification requirements at the time of submission. Lots or sub-lots generally will not be resampled unless reworked before submission. Sampling after reworking will be at the expense of the contractor. 8.4. Plant Inspection. The engineer may undertake the inspection of materials at the source. In the event plant inspection is undertaken, the following conditions shall be met: 8.4.a. The engineer shall have the cooperation and assistance of the contractor and the producer with whom he or she has contracted for materials. 8.4.b. The engineer shall have full entry at all times to such parts of the plant as may concern the manufacture of production of the materials being furnished. 8.4.c. Adequate safety measures are to be provided and maintained. 8.4.d. The division reserves the right to retest all materials, which have been tested and accepted at the source of supply, after the materials have been delivered to the project and prior to incorporation into the work and to reject all materials which, when retested, do not meet the requirements of the specifications or those established for the specific project. 8.5. Storage of Materials. Materials shall be stored so as to assure the preservation of their quality and fitness for the work. Stored materials, even though approved before storage, may again be inspected prior to their use in the work. Stored materials shall be located so as to facilitate their prompt inspection. Approved portions of the right-of-way may be used for storage purposes and for the placing of the contractor's plant and equipment, but any additional space required therefore must be provided by the contractor at his or her expense. Private property shall not be used for storage purposes without written permission of the owner or lessee, and if requested by the engineer, copies of such written permission shall be furnished him or her. All 38 157CSR3 storage sites shall be restored to their original condition by the contractor at his or her expense, except for the stripping and storing of topsoil, or to other materials salvaged from the work. 8.5.a. Care shall be exercised to protect finished concrete surfaces from being stained from storing or placing materials, including but not limited to reinforcing bars or mesh or unpainted structural steel, on same. Any such material so stored shall be adequately protected from weather. Any stains resulting from storage of materials on finished concrete surfaces shall be removed by the contractor at his or her expense. 8.5.b. Aggregate stockpiles may be made on ground that is denuded of vegetation, hard, and well drained. If necessary, the ground shall be covered with two inch plank. Different kinds and sizes of aggregates shall be kept separate during transportation, handling, and storage until batched. If necessary, partitions of suitable height and strength shall be constructed between stockpiles to prevent different materials from becoming mixed. Care must be taken to prevent segregation of the coarse and fine particles of aggregates from taking place during handling or hauling. The inclusion of foreign materials will not be permitted. Aggregates placed directly on the ground shall not be removed from the stockpiles within one foot of the ground until the final cleaning up on the work, and then only the clean aggregate will be permitted to be used. 8.6. Handling Materials. All materials shall be handled in such manner as to preserve their quality and fitness for the work. Aggregates shall be transported from the storage site to the work in tight vehicles, so constructed as to prevent loss or segregation of materials after loading and measuring, in order that there may be no inconsistencies in the quantities of materials intended for incorporation in the work as loaded and the quantities as actually received at the place of operations. 8.7. Unacceptable Materials. 8.7.a. Acceptance or Rejection. Following the application of the appropriate acceptance plan, the decision of the engineer will be final as to the acceptance, rejection, or acceptance at an adjusted price of sampled lots or sub-lots. 8.7.b. Disposition of Lots or Sub-lots. Lots or sub-lots not conforming to specification requirements may be reworked or removed and replaced and resubmitted for acceptance. All nonconforming lots or sub-lots evaluated as unsatisfactory for the use intended shall be reworked or removed and replaced and resubmitted for acceptance. When the evaluation indicates the lots or sub-lots may satisfactorily remain in place, acceptance will be at an adjusted price as stated in the specifications or as directed by the engineer. 8.8. Division-Furnished Material. The contractor shall furnish all materials required to complete the work, except those specified to be furnished by the division. 8.8.a. Materials furnished by the division will be delivered or made available to the contractor at the points specified in the contract. 8.8.b. The cost of handling and placing all materials after they are furnished to the contractor shall be considered as included in the contract price for the item in connection with which they are used. 8.8.c. The contractor will be held responsible for all material delivered to him or her, and deductions will be made from any monies due the contractor to make good any shortages and deficiencies, from any cause whatsoever, and for any damage which may occur after such delivery, and for any demurrage charges. 39 157CSR3 8.9. Silence of Specifications. The apparent silence of the specifications, supplemental specifications, plans, and special provisions as to any detail, or the apparent omission from them of a detailed description concerning any point shall be regarded as meaning that only material and workmanship of acceptable quality are to be used. §157-3-9. Legal Relations and Responsibility to Public. 9.1. Laws to be Observed. The contractor shall keep fully informed of all federal and state laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. The contractor shall at all times observe and comply with all such laws, ordinances, regulations, orders, and decrees; and shall protect and indemnify, defend and hold DOH harmless from any and all claims, liabilities and causes of action for any fines or penalties imposed on DOH by any state or federal agency because of violation by contractor or any of its subcontractors and/or consultants of any state or federal law or regulation. 9.2. Permits, Licenses and Taxes. The contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work. 9.2.a. The contractor shall provide the division with sufficient documentation that all applicable taxes have been paid within 120 days of the project acceptance as provided for in subsection 7.16 of this rule. The division shall have the right to revoke the contractor’s prequalification until the contractor provides sufficient documentation that all taxes have been paid or are the subject of a timely filed dispute currently pending in a court or other body having legal authority and jurisdiction to hear the dispute. 9.3. Patented Devices, Materials, and Processes. If the contractor employs any design, device, material, or process covered by letters of patent or copyright, he or she shall provide for such use by suitable legal agreement with the patentee or owner. The contractor and the surety shall indemnify and save harmless the division, any affected third party, or political subdivision from any claims for infringement by reasons of the use of any such patented design, device, material or process, or any trademark or copyright, and shall indemnify the division for any costs, expenses, and damages which it may be obligated to pay by reason of any infringement, at any time during the prosecution or after the completion of the work. 9.4. Restoration of Surfaces Opened by Permit. The right to construct or reconstruct any utility service in the highway or street or to grant permits for same, at any time, is hereby expressly reserved by the division for the proper authorities of the municipality in which the work is done, and the contractor shall not be entitled to any damages either for the digging up of the street or for any delay occasioned thereby. 9.4.a. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit from the division. The contractor shall allow parties bearing such permits, and only those parties, to make openings in the highway. The contractor shall, when ordered by the engineer, make in an acceptable manner all necessary repairs due to such openings and such necessary work will be paid for as "Extra Work", or as provided in these specifications, and will be subject to the same conditions as original work performed. 9.5. Federal-Aid Provisions. When the United States government pays any portion of the cost of a project, the federal laws and the rules and regulations made pursuant to such laws must 40 157CSR3 be observed by the contractor, and the work shall be subject to the inspection of the appropriate federal agency. 9.5.a. Such inspection shall in no sense make the federal government a party to the contract and will in no way interfere with the rights of either party hereunder. 9.6. Sanitary Provisions. The contractor shall provide and maintain in a neat, sanitary condition such accommodations for the use of his or her employees as may be necessary to comply with the requirements of the state and local boards of health, or of other bodies or tribunals having jurisdiction. The contractor shall not create, commit, or maintain a public nuisance. 9.7. Public Convenience and Safety. The contractor shall at all times conduct his or her work as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the contractor as specified under subsection 6.5 of this rule. 9.7.a. The contractor shall comply with all applicable federal, state, and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his or her own responsibility, or as the engineer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 9.7.b. The contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health or safety, as determined under construction safety and health standards (Title 29, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time), promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96). 9.7.c. Safety Plan. The contractor shall comply with this subdivision if the total contract bid amount exceeds $2,000,000 or is otherwise noted on the plans. The contractor will provide a copy of the company comprehensive safety and health program and the name of the company safety officer at the preconstruction conference or prior to start of work. A copy of the comprehensive safety and health program for each subcontractor and the name of the company safety officer must be submitted with the request for subcontract approval. The company comprehensive safety and health program should be in accordance with ANSI A10.38-1991, “Basic Elements of an Employer Program to Provide a Safe and Healthful Work Environment” or equivalent. 9.7.c.1. A site specific safety plan covering the work of the prime contractor and all known subcontractors must be prepared and submitted at the preconstruction conference or prior to the start of work. The site specific plan must include the name of the competent person(s) responsible for safety at the project site. As additional subcontracts are negotiated, the site specific safety plan for that work can be submitted with the subcontract request. 9.7.c.2. Contractor employees shall be provided hazard recognition and avoidance training. Further, newly employed workers shall be provided safety orientation training prior to being assigned any task. This training can be provided by the contractor or the contractor’s representative. Likewise, training provided by other sources based on an employee’s initiative or his or her affiliation with the other groups is permissible. All training should be current and up to date with appropriate refresher courses provided if previous training was not within the last three years. 41 157CSR3 9.7.c.3. All contractor safety training shall be administered or monitored by the contractor’s qualified representative, known as the company safety officer. “Qualified” means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his or her ability to solve or resolve problems relating to the subject matter, the work or the project. Acceptable training for this individual to be considered qualified includes, but is not limited to, completion of the 30-hour OSHA 500 Trainer Course in Occupational Safety and Health Standards for the Construction Industry or its equivalent. 9.7.c.4. The contractor or Subcontractor working on the project will conduct weekly safety “toolbox” talks to discuss relevant safety issues and this meeting will be open to attendance and active participation by the on-site Division of Highways staff. 9.8. Railway-Highway Provisions. The contractor shall comply with the following provisions when performing any operations within the existing right of way of the railroad or when railroad protective insurance is required by the contract documents. Railroad protective insurance shall include all of the work set forth in subsection 9.8 of this rule with exception of the provisions of subdivisions 9.8.g and 9.8.h. 9.8.a. Notice of Starting Work. The Contractor shall not start any work on railroad right- of-way until he has complied with the following conditions: 9.8.a.1. Give the railroad's chief engineer written notice at least ten days in advance of the date he proposes to begin work on or adjacent to the railroad right of way. 9.8.a.2. Obtain written approval from the railroad of the railroad protective insurance coverage as required herein: Provided that the railroad shall not unreasonably withhold its approval. 9.8.a.3. Unless an Order made by a court pursuant to W.Va. Code §54-1-9 or §54- 2-14a otherwise expressly authorizes, the contractor shall obtain written authorization from the railroad to begin work on railroad right of way. This authorization can be expected within two weeks after insurance has been approved. 9.8.b. Insurance. The Contractor shall secure and provide, until all work under the terms of the project is satisfactorily completed and accepted, insurance requirements set forth in the project plans. 9.8.c. Use of Grade Crossings. If the Contractor desires a temporary grade crossing of the Railroad's tracks other than that shown in the project plans; to use an existing private grade crossing; or to use an existing public grade crossing with unlicensed construction equipment unless an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a expressly authorizes, the contractor shall make arrangements in writing with the railroad and will be required to bear all costs, including railroad protective services incidental to such crossings. 9.8.d. Interference with Railroad Operations. All work to be performed by the contractor shall be performed in a manner which does not impede rail operations or pose undue safety risks and otherwise provides that works are planned to be so constructed as not to impede the passage or transportation of persons, property, or commodities. Generally, this shall be accomplished by means of strict adherence to the agreements with the railroad. The contractor shall use reasonable care and diligence and cooperate with officials of the railroad in order to avoid accidents, damages, or unnecessary delay to, or interference with train movement of the railroad. 42 157CSR3 9.8.d.1. When work within railroad right of way is of a nature that it impedes railroad operations such as, but not limited to, use of runaround tracks or the necessity for reduced speed, the contractor shall schedule and conduct his operations so that such impediment is reduced to the absolute minimum. 9.8.d.2. Any cost incurred by the railroad for repairing damages to its property or to property of its tenants, caused by or resulting from the operations of the contractor, shall be paid directly to the railroad by the contractor. 9.8.d.3. The contractor shall assume all liability for any and all damages to his work, employees, subcontractor, equipment, and materials caused by railroad traffic. 9.8.d.4. No charge or claim of the Contractor against either the Division or the Railroad will be allowed for hindrance or delay on account of train traffic, work done by railroad, delay incident to or necessary for safe operation and maintenance of the railroad or any delays due to compliance with these special provisions. 9.8.e. Construction Procedures. It shall be the contractor's responsibility to arrange a schedule with the railroad for accomplishing his work and the railroad’s or its tenants’ work. The contractor in arranging a schedule shall ascertain, from the railroad, the lead time required for assembling crews and materials and shall make allowance therefor. 9.8.e.1. The contractor shall submit to the railroad's chief engineer, with a copy to the Division of Highways, work schedule and information regarding methods and procedures for performing work, e.g., plans and specifications for shoring and sheeting, and for protective shields covering all railroad facilities. Unless an Order made pursuant to W.Va. Code §54-1-9 or §54-2- 14a authorizes, the work, the contractor shall obtain railroad approval before commencing said work. 9.8.e.2. The contractor shall take special precaution and care when excavating for shoring pits and footers adjacent to tracks and in driving piles to always provide adequate lateral support for the tracks and the loads which they carry, so as not to disturb the track alignment and surface and to avoid obstructing track clearances with working equipment, tools, or materials. 9.8.e.3. A copy of the contractor's blasting sequence will be provided to the railroad for their information prior to any blasting. The contractor shall obtain specific approval of the railroad's chief engineer for use of explosives on railroad property. 9.8.e.4. All construction equipment that is parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons. 9.8.e.5. Materials and equipment shall not be stored where they will interfere with railroad operations, nor on the right of way of the railroad without first having obtained written permission from the railroad's chief engineer or unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a. 9.8.e.6. The contractor will be required to maintain all ditches and drainage structures and keep them free of silt or other obstructions, to promptly repair eroded areas within railroad right of way and to repair any other damage to the property of the railroad or its tenants which may be the results of their operations. 43 157CSR3 9.8.e.7. Upon completion of the work, the contractor shall remove from within the limits of the railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish, or temporary buildings which belong to the contractor and leave said right of way in a condition satisfactory to the railroad's chief engineer. 9.8.f. Track Clearances. The minimum track clearances to be adhered to by the contractor during construction will be 15 feet (3 m) from centerline of the track or as approved by the railroad’s chief engineer. However, before undertaking any work within railroad right of way or before placing any obstruction over any track, the contractor shall: 9.8.f.1. Notify the railroad's chief engineer at least 72 hours in advance of work. 9.8.f.2. Receive assurance from the railroad's chief engineer that arrangements have been made for any railroad protective services necessary unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a. 9.8.f.3. Receive permission from the railroad's chief engineer to proceed with the work, unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a. 9.8.g. Railroad Protective Services (Flagging). Under the terms of the agreement between the division and the railroad, the railroad has sole authority to determine the need for railroad protective services required to protect its operations. In the event an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a, permits work to commence and work is to proceed in accordance with the plans, the contractor shall notify the railroad of the date work shall start and provide it an opportunity to provide railroad protective services should it wish. The railroad shall not be permitted to create delay or increase costs to Highways by simply refusing to provide railroad protective services. In such event it will nonetheless be the responsibility of the contractor to determine whether the work can proceed in the absence of such and to make suitable adequate substitute arrangements. The requirements and specifications related to obtaining railroad protective services from the railroad or its authorized consultant will be detailed in the project plans and documents for each of Highway’s projects. 9.8.h. Failure To Comply. In the event the contractor violates or fails to comply with any of the requirements of these provisions: 9.8.h.1. The railroad's chief engineer may require that the contractor vacate railroad property unless work is proceeding pursuant to Order made pursuant to W.Va. Code §54- 1-9 or §54-2-14a. 9.8.h.2. The Division may stop all work adjacent to the railroad. 9.8.h.3. Any such orders shall remain in effect until the contractor has remedied the situation to the satisfaction of the railroad's chief engineer and the Division, unless work is proceeding pursuant to Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a, 9.8.h.4. All costs incurred resulting from compliance with these provisions shall be incidental to the items in the contract and no separate payment shall be made. 9.9. Bridges Over Navigable Waters. All work on navigable waters shall be so conducted that free navigation of the waterways will not be interfered with and that the existing navigable depths will not be impaired except as allowed by permit issued by the U. S. Army Corps of Engineers. 44 157CSR3 9.10. Barricades and Warning Signs. The contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices, except as provided by subsection 6.5 of this rule, and he or she shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Suitable warning signs shall be provided to properly control and direct traffic. 9.10.a. The contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic and at all intermediate points where the new work crosses or coincides with an existing road. Such warning signs shall be erected in accordance with the plans furnished. 9.10.b. All barricades, warning signs, lights, temporary signals, and other protective devices must conform with the latest edition of the manual "Traffic Control for Street and Highway Construction and Maintenance Operations," published by the West Virginia Division of Highways, and the provisions of subsection 715.9, of the current edition of the Standard Specifications, Roads and Bridges.” 9.11. Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the contractor shall exercise the utmost care not to endanger life or property, including new work. The contractor shall be responsible for any and all damage resulting from the use of explosives. 9.11.a. All explosives shall be stored in a secure manner, in compliance with all laws and ordinances, and all such storage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the engineer and in general not closer than 1,000 ft. from the road or from any building or camping area or place of human occupancy. 9.11.b. The contractor shall notify each public utility company, having structures in proximity to the site of work, of his or her intention to use explosives and such notice shall be given sufficiently in advance to enable the companies to take such steps as they may deem necessary to protect their property from injury. 9.12. Protection and Restoration of Property and Landscape. The contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monuments and property marks until the engineer has witnessed or otherwise referenced their location and shall not move them until directed. 9.12.a. The contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect, or misconduct in his or her manner or method of executing the work, or at any time due to defective work or materials, and this responsibility will not be released until the project shall have been completed and accepted. 9.12.b. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work, or in consequence of the non-execution thereof by the contractor, he or she shall restore, at his or her own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring as may be directed, or he or she shall make good such damage or injury in an acceptable manner. 9.13. Forest Protection. In carrying out work within or adjacent to state or national forests, the contractor shall comply with all regulations of the State Fire Marshal, Division of Natural Resources, or any other authority having jurisdiction, governing the protection of forests and the 45 157CSR3 carrying out of work within forests, and shall observe all sanitary laws and regulations with respect to the performance of work in forest areas. The contractor shall keep the areas in an orderly condition, dispose of all refuse, obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other structures in accordance with the requirements of the Forest Supervisor. 9.13.a. The contractor shall take all reasonable precaution to prevent and suppress forest fires and shall require his or her employees and subcontractors, both independently and at the request of forest officials, to do all reasonably within their power to prevent and suppress and to assist in preventing and suppressing forest fires and to make every possible effort to notify a forest official at the earliest possible moment of the location and extent of any fire seen by them. 9.14. Responsibility for Damage Claims. The contractor shall indemnify and save harmless the division, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the contractor, its subcontractors and/or consultants; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the contractor its subcontractors and/or consultants; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the "Worker's Compensation Act," or any other law, ordinance, order, or decree; and so much of the money due the contractor under and by virtue of their contract as may be considered necessary by the division for such purpose may be retained for the use of the division or, in case no money is due, their surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and suitable evidence to that effect furnished to the division; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that the contractor is adequately protected by public liability and property damage insurance. 9.15. Opening Sections of Project to Traffic. At the option of the engineer, certain sections of the work may be opened for traffic. Such opening will not constitute acceptance of the work, or any part thereof, or a waiver of any provisions of the contract; provided however, that on such portions of the project as are accepted for use of traffic, the contractor shall not be required to assume any expense entailed in maintaining the roadway for traffic. Such expense will be borne by the division or will be compensated for in the manner provided hereinafter in subsection 11.4 of this rule. Any damage to the highway not attributable to traffic which might occur on such section, except slides, shall be repaired by the contractor at his or her expense. The removal of slides shall be performed by the contractor and payment will be in accordance with subsection 6.3 of this rule. 9.15.a. If the contractor is dilatory in completing shoulders, drainage structures, or other features of the work, the engineer may order all or a portion of the project open to traffic, but in such event the contractor shall not be relieved of his or her liability and responsibility during the period the work is so opened prior to final acceptance. The contractor shall conduct the remainder of his or her construction operations so as to cause the least obstruction to traffic. 9.16. Contractor's Responsibility for Work. Until final written acceptance of the project by the engineer, the contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and without 46 157CSR3 the fault of or negligence of the contractor, including but not restricted to acts of God, of the public enemy or governmental authorities. 9.16.a. In case of suspension of work from any cause whatever, the contractor shall be responsible for the project and shall take such precautions as may be necessary to prevent damage to the project, provide for normal drainage and to erect any necessary temporary structures, signs, or other facilities at his or her expense. During such period of suspension of work, the contractor shall properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seedings, and soddings furnished under his or her contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against injury. 9.17. Contractor's Responsibility for Utility Property and Services. At points where the contractor's operations are adjacent to properties of railway, telegraph, telephone, and power companies, or are adjacent to other property, damage to which might result in considerable expense, loss, or inconvenience, work shall not be commenced until all arrangements necessary for the protection thereof have been made. 9.17.a. The contractor shall cooperate with the owners of any underground or overhead utility lines in their removal and rearrangement operations in order that these operations may progress in a reasonable manner, that duplication of rearrangement work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted. 9.17.b. In the event of interruption to water or utility services as a result of accidental breakage, or as a result of being exposed or unsupported, the contractor shall promptly notify the proper authority and shall cooperate with such authority in the restoration of service. If water service is interrupted, repair work shall be continuous until the service is restored. No work shall be undertaken around fire hydrants until provisions for continued service have been approved by the local fire authority. 9.18. Furnishing Right-Of-Way. The division will be responsible for securing all necessary rights-of-way in advance of construction. Any exceptions will be indicated in the contract. 9.19. Personal Liability of Public Officials. In carrying out any of the provisions of these specifications, or in exercising any power or authority granted to them by or within the scope of the contract, there shall be no liability upon the commissioner, engineer, or their authorized representatives, either personally or as officials of the state, it being understood that in all such matters they act solely as agents and representatives of the division. 9.20. No Waiver of Legal Rights. The division shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment therefore, from showing the true amount and character of the work performed and materials furnished by the contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the contract. The division shall not be precluded or estopped, notwithstanding any such measurement, estimate, or certificate and payment in accordance therewith, from recovering from the contractor or his or her sureties, or both, such damage as it may sustain by reason of his or her failure to comply with the terms of the contract. Neither the acceptance by the division or any representative of the division, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any possession taken by the division, shall operate as a waiver of any portion of the contract or of any power herein reserved or of any right to damages. A waiver of any breach of the contract shall not be held to be a waiver of any other or subsequent breach. 47 157CSR3 9.21. Protection of Rivers, Streams, and Impoundments, Pollution Control Quality. 9.21.a. Erosion and Siltation Control. The contractor shall be responsible for water quality throughout the duration of construction in accordance with the National Pollutant Discharge Elimination System (NPDES) permit registration with the West Virginia Department of Environmental Protection Agency (WVDEP). The contractor will responsible for the following: 9.21.a.1. Developing and implementing an effective erosion and sediment control plan. 9.21.a.2. Directing the construction, operation, maintenance and dismantling of temporary erosion and sediment control features. 9.21.a.3. Implementing remedial action to correct and/or repair failing erosion and sediment control features. 9.21.a.4. Implementing storm and winter shutdown procedures. 9.21.a.5. Shaping the earthwork prior to the suspension of grading operations each day in a manner that will permit storm runoff with minimum erosion. 9.21.a.6. Installing, operating, and maintaining erosion and sediment control features in an acceptable condition. 9.21.a.7. Cleaning out and restoring to original conditions any erosion or sediment control feature that has reached half of its capacity. For sediment basins, one half of its capacity is considered as wet volume storage. 9.21.a.8. The contractor shall prepare a spill prevention, control, and countermeasures (SPCC) plan that itemizes specific measures that will be implemented to prevent and clean up chemical and petroleum product spills that may occur during all phases of construction. Fuel storage and refueling activities, equipment maintenance activities and equipment washing will be kept at least 500 feet away from any watercourse or wetland. 9.21.a.9. Any details not shown in the plans shall be in accordance with the latest version of the West Virginia Division of Highways Erosion and Sediment Control Manual. In the event that temporary erosion and sediment control measures are necessary due to the contractor’s negligence, carelessness or failure to install permanent controls as part of the work as scheduled, such work shall be performed by the contractor at his own expense. 9.21.a.10. In addition to the above, the contractor shall make themselves familiar with all requirements contained within the WVDEP’s General Water Pollution Control Permit, Stormwater Associated with Construction Activities Permit Number WV0115924. A copy of this permit can be found at the following internet address: http://www.dep.wv.gov/WWE/Programs/stormwater. 9.21.a.11. Noncompliance with permit conditions constitutes a violation of the Clean Water Act and State Code and is subject to enforcement action by the WVDEP. 9.21.a.12. At the project’s pre-construction conference, the contractor shall submit to the department in addition to the appropriate number of erosion and sediment control plans, 48 157CSR3 the co-applicant #1 signature page (Exhibit 1 as defined in paragraph 9.21.a.25. of this rule ) and the contractor’s E&S manager contact. 9.21.a.13. The contractor’s E&S contact shall contain the following information: the name, title, mailing address and telephone number of the person who will be responsible for the erosion and sediment control plans, implementation, maintenance, etc., for the life of the NPDES registration. 9.21.a.14. Upon completion of the pre-construction conference, the department will modify the existing NPDES registration for this project to make the contractor the number one co-applicant to the permit. Once this has been completed, the contractor shall be responsible for any and all fees, violations and fines assessed against the project that is a result of the contractor’s negligence, carelessness, or failure to install permanent controls as part of the work as scheduled. 9.21.a.15. Once the project is complete, the contractor will still bear responsibility for the NPDES registration until either a Notice of Termination (NOT) is received from the WVDEP or the contractor has received final payment for the project. If a NOT has not been received by the time the final payment is made, the department will modify the NPDES registration to remove the contractor’s name from the registration. 9.21.b. Pollution. The contractor shall exercise every reasonable precaution throughout the life of the project to prevent pollution of rivers, streams, or impoundments. Pollutants such as chemicals, fuels, lubricants, bitumens, raw sewage, products associated with bridge cleaning and painting, and other harmful waste shall not be discharged into or alongside of rivers, streams, impoundments or into natural or man-made channels leading thereto. The quality of the surface waters affected by construction shall meet the requirements of the Water Pollution Control Act, W. Va. Code §22-11-1 et seq. 9.21.c. Basis of Payment. Except when pay items are specifically described and furnished as pay items in Section 642, Temporary Pollution Control, of the current edition of the Standard Specifications Road and Bridge, the water pollution and erosion and siltation control requirements set forth herein shall be at the expense of the contractor. 9.22. Plant Pest Regulations. The indiscriminate movement of nursery stock, hay or straw mulch, equipment, and soil samples into and out of West Virginia constitutes a potential hazard to state and national agriculture. Therefore, it shall be the responsibility of the prime contractor to comply with all applicable state and federal Plant Pest Regulations in the fulfillment of this contract. 9.22.a. Information regarding these regulations may be obtained from Plant Pest Control Division, West Virginia Department of Agriculture, Charleston, West Virginia 25305, or United States Department of Agriculture, Agriculture Research Service, Plant Pest Control Division, P. O. Box 1257, Roanoke, Virginia, 24001. 9.23. Air Pollution Control. The contractor shall exercise every reasonable precaution throughout the life of the project to keep air pollution to a minimum. The contractor shall also comply with the applicable regulations of the West Virginia Air Pollution Control Commission. During times of limited dispersion, construction operations may be suspended. 9.23.a. All plants in West Virginia producing bituminous concrete for the division shall obtain a permit or certification from the West Virginia Air Pollution Control Commission. 49 157CSR3 9.24. Clean Water Act/Wetlands. The contractor will comply with all aspects of 33 USC 1344 (Section 404 of the Clean Water Act) including any and all regards to wetlands on all work associated with the project. A wetland will not be filled or disturbed on the project or any work related to the project such as a haulroad, waste area, borrow pit or any other activity without a permit. 9.25. Lead Exposure In Construction. The contractor will comply with all aspects of 29 CFR Part 1296, Lead Exposure in Construction, by the United States Department of Labor, Occupational Safety and Health Administration. 9.26. Notification of Abatement, Demolition or Renovation. 9.26.a. The notification for projects involving abatement, demolition, or renovation will conform to this section. The project engineer will have a copy of all asbestos inspection reports available at the field office. The contractor shall provide copies of all notifications and correspondence to the project engineer. 9.26.b. Abatement. Abatement activities shall conform to Section 681 of the current edition of the Standard Specifications Roads and Bridges. 9.26.c. Demolition. 9.26.c.1. Asbestos Containing Materials Reported. Notifications will be in accordance with paragraph 9.26.d.3. of this rule. 9.26.c.2. No Asbestos Containing Materials Reported. For buildings or bridges that do not contain asbestos, only the notification form must be submitted to the West Virginia Division of Environmental Protection (DEP) and the United States Environmental Protection Agency (EPA) at the address given in paragraph 9.26.d.3. of this rule. 9.26.c.2.A. If an asbestos inspection report indicates that there is no asbestos present on a bridge scheduled for demolition or renovation, the need for a trained individual to be on site during either process is waived. However, the contractor shall have an individual trained in accordance with the provisions as set forth in 40 CFR Part 61, Subpart M on site to observe building demolition and file a report with the project engineer indicating if any suspect (asbestos containing) material was encountered during demolition. A copy of the individual's current training certification must be attached to this report. 9.26.d. Renovation. 9.26.d.1. Asbestos Containing Materials Reported. For projects involving the renovation of a bridge or building that has asbestos containing materials, the contractor shall submit a “Notification of Abatement, Demolition or Renovation” in accordance with paragraph 9.26.d.3. of this rule. 9.26.d.2. No Asbestos Containing Materials Reported. Structures that are being renovated and are free of asbestos, per the inspection report, do not require submittal of the “Notification of Abatement, Demolition or Renovation”. 9.26.d.3. Notifications. In accordance with state and federal regulations, the contractor shall submit a “Notification of Abatement, Demolition or Renovation” to the address shown below prior to the commencement of demolition of any building or bridge (regardless of the presence of asbestos). All notifications must be made a minimum of 10 working days prior to 50 157CSR3 the commencement of demolition or renovation operations. Particular attention is to be made to the “schedule” section of the form. If for any reason, demolition or renovation cannot begin on the date as submitted, the DEP, Office of Air Quality must be notified at the address below: West Virginia Division of Environmental Protection Office of Air Quality 601 57 Street S.E. Charleston, West Virginia 25304 Attn: Asbestos Coordinator Telephone: (304) 926-0499 Fax: (304) 926-0478 United States Environmental Protection Agency Rich Ponak, Asbestos Program Coordinator U.S. EPA Region 3 Pesticides/Asbestos Program and Enforcement Branch 3LC62 1650 Arch Street Philadelphia, PA 19103-2029 Phone: (215) 814-2029 Email: Ponak.Rich@epa.gov 9.26.d.4. If a building or bridge contains asbestos, the notification process as outlined in Section 681 of the current edition of the Standard Specifications Roads and Bridges, shall be followed. 9.27. Construction Access and Environmental Permits. The division has obtained permits for activities shown in the contract documents. The anticipated Temporary Construction Access (TCA) methods are included, if a TCA is not shown in the plans, or the permit, it has been determined that at least one TCA method exists that does not require a permit. A copy of these permits is in the contract documents. 9.27.a. The contractor must comply with the approved permits and exercise best environmental management practices at no additional cost to the division. 9.27.b. The permits do not cover waste or borrow sites, haul roads, storage sites, staging areas or activity not shown in the contract documents or permits. These permits are to be handled in accordance with subsection 9.2 of this rule. 9.27.c. Temporary Construction Accesses. A temporary construction access is any road, cofferdam, causeway and/or stream crossing, access fill, dike, channel retaining structure, etc. that may be required to access the work. This work shall consist of the construction of all temporary construction access required for the project and shall include, but is not limited to, all culverts, structures, excavation, rock borrow and incidental construction as required to construct the access. This work shall also include all necessary work required to maintain and remove the temporary construction access and to restore the area to its original condition. All of the work shall be in accordance with these specifications and in reasonably close conformity with the contract documents, approved permits, or as established by the engineer. 9.27.c.1. No payments shall be made for the temporary construction access unless otherwise stated in the plans. 9.27.d. Changing Temporary Construction Accesses. The contractor may elect to utilize alternate temporary construction access methods from those shown in the contract documents. 51 157CSR3 If the contractor proposes alternate temporary construction access methods, he shall obtain written approval from all affected landowners and shall provide to the engineer all of the permit documents required to obtain additional or revised permits. The division will submit the permit documents to the appropriate agencies for approval. Acceptance of the permit documents by the engineer or forwarding them to the permitting agency does not guarantee or constitute approval of the permit. No work shall be performed on a permittable activity until a copy of all the appropriate approvals and permits are received by the engineer. No time extensions or additional payments will be made for the contractor to obtain additional approvals or permits or for changes to the design of the temporary construction access. 9.27.e. Excavated Material. The excavated material, unless otherwise directed by the engineer, shall be utilized for backfill or embankments. Surplus material shall be disposed in accordance with Section 207.6 of the current edition of the Standard Specifications Roads and Bridges, and in such a manner that the efficiency or appearance of the structure shall not be impaired, and the stream shall not be obstructed or excess sediment introduced into the stream. 9.27.f. Corps of Engineers Permit. If this project has been determined to involve activities, which are regulated by the Department of the Army, Corps of Engineers a permit has been included in the contract documents. These activities involve the discharge of dredge or fill materials into the waters of the United States as regulated by Section 404 of the Clean Water Act or the obstruction or alteration of navigable waters of the United States regulated by Section 10 of the River and Harbor Act of 1899. 9.27.f.1. The engineer will decide all questions that may arise as to the interpretation or violation of these conditions. The contractor shall comply with the conditions of the permits and the following. 9.27.f.1.A. Material will not be stockpiled in the watercourse. 9.27.f.1.B. Bilge, ballast, or wash water pumped from barges or out of cofferdams will not be discharged into the watercourse without acceptable removal of solids, oils and/or toxic compounds. 9.27.f.1.C. Discharges shall be avoided during fish spawning seasons to the maximum extent practicable unless a note prohibiting such discharge is included in the construction plans. §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 52 157CSR3 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 a “Critical Path Method” (CPM) schedule with all graphic and tabular supporting documentation, hereinafter referred to as "schedule.” 10.3.a.2. 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 53 157CSR3 painting, or on which the contract bid amount is $2,000,000 or less. However, on any project that contains an Incentive/Disincentive clause, and all Design Build, Alternative Project Delivery, and Public Private Partnership projects shall require a schedule. 10.3.a.3. 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.4. 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.5. The contractor shall provide an activity or milestone that designates the substantial completion date of the project. Except as noted below, 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.6. The contractor may submit a schedule with a substantial completion date earlier than the contract completion date set forth in the proposal. However, the Division is not and under no circumstances will it be liable for the Contractor’s failure to complete the Project prior to the specified contract completion date. Should the schedule indicate an earlier completion than the time for completion set forth in the contract, the schedule will define any positive float developed between an early completion point and the contract completion date as part of the overall project float. It is understood by the Contractor and Division that positive float is a shared commodity, not for the exclusive use or benefit of either party. 10.3.a.7. 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.8. 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.9. 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.10. Preliminary Construction Schedule. Within 30 calendar days of the contract award date, the contractor may submit a 60 calendar day preliminary construction 54 157CSR3 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.11. 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.11.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.12. Construction Schedule Requirements. The preliminary schedule and the official detailed construction schedule shall be submitted in both an electronic format (.XER file) and in hard copy which 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.12.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.12.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.12.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.12.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 schedules requiring resource loading the contractor shall provide the labor and equipment involved with each activity. For all 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 schedules, including the official detailed construction schedules, required updates, and any revised Schedules. 55 157CSR3 10.3.a.12.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. The schedules shall be prepared using scheduling software Primavera Project Manager P6 and 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.1. 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.2. 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. Scheule Resource Loading Criteria. For projects where the Contract Bid Amount is between $2,000,000 and $7,500,000, the schedule shall meet the requirements of the schedule as provided above with the exception of 3. Major equipment and corresponding hours for activity and 4. Manpower by Trade or entity and corresponding hours for activity. Schedule resource loading will be required on all projects on which the Contract Bid Amount is equal to or exceeding $7,500,000. 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). Non-resource loaded 56 157CSR3 projects that require 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 where the Contract Bid Amount is greater than or equal to $7,500,000 that require a schedule 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 non-resource loaded 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: 1. A delay greater than 10 calendar days in the completion of any critical activity; 57 157CSR3 2. The performance of any work in a sequence or manner which varies from that represented on the schedule; 3. 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 58 157CSR3 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. 59 157CSR3 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 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 60 157CSR3 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. 61 157CSR3 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: 62 157CSR3 1. The extra time allowances as agreed on and specified in the change order that covers the additional or increased work; or 2. 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 table in the Standard Specifications Roads and Bridges, current edition. 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 63 157CSR3 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. 64 157CSR3 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 65 157CSR3 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. 66 157CSR3 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: Error! Objects cannot be created from editing field codes. Then Error! Objects cannot be created from editing field codes. Then Error! Objects cannot be created from editing field codes. Where: Contract billing A = amount Contractor’s total B = billings for Contract period Contractor’s total C = overhead for contract period 67 157CSR3 overhead allocable to D = Contract E = days of performance F = daily contract overhead number of days of G = 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. §157-3-11. Measurement and Payment. 11.1. Measurement of Quantities. All work completed under the contract will be measured by the engineer according to United States standard measure. 11.1.a. The method of measurement and computations to be used in determination of quantities of materials furnished and of work performed under the contract will be those methods generally recognized as conforming to good engineering practice. 11.1.b. Unless otherwise indicated, the requirements prescribed hereinafter shall govern. 11.1.c. Earthwork will be computed by the average end area method, using the horizontal length measured along the centerline as the distance between sections, applying corrections for curvature where the apparent error exceeds 25 percent of the volume in any one cut. Other acceptable methods may be used. 11.1.d. Unless otherwise specified, longitudinal measurements for area computations will be made horizontally and no deductions will be made for individual fixtures having an area of nine square feet or less. Unless otherwise specified, transverse measurements for area computations will be the neat dimensions shown on the plans or ordered in writing by the engineer. 11.1.e. Structures will be measured according to neat lines shown on the plans or as altered to fit field conditions. 11.1.f. All items which are measured by the linear foot, such as pipe culverts, guardrail, underdrains, etc., will be measured parallel to the base or foundations upon which such structures are placed. The term "gage," when used in connection with the measurements of plates, will mean the U. S. Standard Gage. 68 157CSR3 11.1.g. The galvanized sheet thicknesses to be used in the manufacture of metal cribbing, corrugated iron or steel culvert pipe, underdrain pipe, plate pipe, pipe arches, plate pipe arches and plate arches shall be as specified in AASHTO M 36 or AASHTO M 167. 11.1.h. The sheet thicknesses to be used in the manufacture of corrugated aluminum alloy culvert pipe, underdrain pipe, plate pipe, pipe arches, plate pipe arches and plate arches shall be as specified in AASHTO M 196 or AASHTO M 219. 11.1.i. The "size number" used in the measurement of wire will be as specified in AASHTO M 32 or AASHTO M 225. 11.1.j. The term ton will mean the short ton consisting of 2,000 lb. All materials which are measured or proportioned by weight shall be weighed on approved scales by competent, qualified personnel. Scales for weighing shall be of either the beam type, springless-dial type or digital recorder type. 11.1.k. All plant and truck scales and metering devices shall be inspected, approved and sealed in accordance with the requirements of the West Virginia Division of Labor, Bureau of Weights and Measures, or other appropriate agencies of the state or its political subdivisions. Poises shall be designed to be locked in any position to prevent unauthorized changes. When the beam type scales are used, provisions for a "telltale" dial shall be made for indicating to the operator that the required load in the weighing hopper is being approached. A device on the weighing beams shall clearly indicate the critical position. 11.1.l. Truck scales shall be provided by the producer or contractor, except that truck scales are not required where the material is weighed at properly calibrated automatic batching plant facilities which are equipped with digital print-out equipment. The scales shall be of sufficient size and capacity to weigh the heaviest loaded trucks that are used for delivery of the material. All truck scales shall be mounted on solid foundations which will ensure their remaining plumb and level. 11.1.m. A weigh person shall be provided by the producer. The weigh person shall certify that the weight of the material, as determined either by the truck scales or from the digital print- out of the weights, is correct. To signify the certification of weight the weigh person must either sign their full name on each ticket, or if the ticket printer prints the weigh person’s full name, they must at least initial each ticket. 11.1.n. Each truck shall be weighed empty prior to each load, except at automatic batch plants approved to operate without truck scales. A digital recorder shall be required on all truck scales. The digital recorder shall produce a printed record of the gross, tare and net weights, and the time, date, truck identification and project number. Provision shall be made for constant zero compensation and further provision shall be made so that the scales may not be manually manipulated during the printing process. The system shall be interlocked so as to allow printing only when the scale has come to rest. 11.1.o. In case of a breakdown of the automatic equipment, the engineer may permit manual operation for a reasonable time, normally not to exceed 48 hours, while the equipment is being repaired. 11.1.p. If material is shipped by rail, the car weight may be accepted provided the actual weight of material only will be paid for. However, car weights will not be acceptable for material to be passed through mixing plants. 69 157CSR3 11.1.q. Devices used to meter or measure component or other materials in a simultaneous manner shall be located so as to be readily accessible and visible to a single inspector, unless otherwise directed by the engineer. 11.1.r. Materials to be measured by volume in the hauling vehicle shall be hauled in approved vehicles and measured at the point of delivery. Vehicles for this purpose may be of any size or type acceptable to the engineer, provided that the body is of such shape that the actual contents may be readily and accurately determined. All vehicles shall be loaded to at least their water level capacity, and all loads shall be leveled when the vehicles arrive at the point of delivery. 11.1.s. When approved by the engineer, material specified to be measured by the cubic yard (meter) may be weighed and these weights converted to cubic yard (meter)s for payment purposes. Further, when it is impractical to measure the material by weighing, or in its original position, the material will be measured in its final position and adjusted by a volume change factor. These conversion factors will be determined by the engineer and shall be agreed to by the contractor before these methods of measurement are used. 11.1.t. When bituminous material is measured by volume, the measured volume at loading temperature shall be converted to volume at 60° F (15° C) using the temperature correction factors in 705 for asphaltic materials and 706 for tar materials, except that when volume is measured by an approved temperature compensated metering device, no further volume correction for temperature shall be required. When bituminous material is measured by weight, the actual specific gravity, API gravity, or weight per gallon (liter) of the material shall be used to convert the measured weight to volume at 60° F (15° C). The contractor shall furnish all information necessary as determined solely by the division to determine the amount of bituminous material actually incorporated into the project. 11.1.u. Net certified scale weights or weights based on certified volumes in the case of rail shipments will be used as a basis of measurement, subject to correction when bituminous material has been lost from the car or the distributor, wasted, or otherwise not incorporated in the work. 11.1.v. When bituminous materials are shipped by truck or transport, net certified weights or volume, subject to correction for loss or foaming may be used for computing quantities. 11.1.w. Cement will be measured by the cwt (hundredweight = 100 lb) (kilogram). For the purpose of determining the total amount used in the mixture, one bag of cement shall be considered as weighing 0.94 cwt (42.64 kg), and one barrel of cement shall be considered as weighing 3.76 cwt (175.55 kg). 11.1.x. Timber will be measured by the thousand feet board measure (mfbm) (cubic meters) actually incorporated in the structure. Measurement will be based on nominal widths and thicknesses and the extreme length of each piece. 11.1.y. The term "lump sum" when used as an item of payment will mean complete payment for the work described in the contract. 11.1.z. When a complete structure or structural unit (in effect, "lump sum" work) is specified as the unit of measurement, the unit will be construed to include all necessary fittings and accessories. 11.1.aa. When standard manufactured items are specified such as fence, wire, plates, rolled shapes, pipe conduit, etc., and these items are identified by gage, unit weight, section dimensions, etc., such identification will be considered to be nominal weights or dimensions. 70 157CSR3 Unless more stringently controlled by tolerances in cited specifications, manufacturing tolerances established by the industries involved will be accepted. 11.2. Scope of Payment. The contractor shall receive and accept compensation provided for in the Contract as full payment for furnishing all materials and for performing all work under the contract in a complete and acceptable manner and for all risk, loss, damage, or expense of whatever character arising out of the nature of the work or the prosecution thereof, subject to the provisions of subsection 9.20 of this rule. 11.2.a. If the "Basis of Payment" clause in the specifications relating to any unit price in the bid schedule requires that the unit price cover and be considered compensation for certain work or material essential to the item, this work or material will not also be measured or paid for under any other pay item which may appear elsewhere in the specifications, except as provided in subsection 6.6 of this rule. 11.2.b. When the contract specifies payment of an item or of a portion of an item on a plan quantity basis, the quantities for payment will be those shown on the Plans with deductions from or additions to such quantities resulting from authorized deviations from the plans. 11.2.c. If the contractor believes that a quantity which is specified for payment on a plan quantity basis is incorrect, he or she may request the division in writing to check the questionable quantity. The request shall be accompanied by calculations, drawings, or other evidence indicating why the plan quantity is believed to be in error. If the plan quantity is found to be in error, payment will be made in accordance with the corrected plan quantity. 11.2.d. The division reserves the right to check the quantity of an item which is specified for payment on a plan quantity basis if there is reason to believe that it is inaccurate. If the quantity is found to be in error, payment will be made in accordance with the corrected plan quantity. 11.2.e. Should the division determine during construction that conditions have varied from those anticipated in design to the extent that actual measurement of a plan quantity item is warranted, the Division will make such measurement, and payment will be based thereon in lieu of the plan quantity. 11.2.e.1. General Basis of Adjusted Payment. 11.2.e.1.A. Single Deficiency: In the case of the single characteristic deficiency, the resulting deficiency shall be used directly to determine an adjusted price. 11.2.e.1.B. Multiple Deficiency: In the case of a multiple deficiency, the related adjusted percentage of contract price as determined by the acceptance plan for each characteristic shall be determined and the resulting percent of contract price to be paid shall be the product of these related adjusted percentages. 11.2.e.2. Basis of Charges for Additional Testing. When additional acceptance testing is performed by the division for reworked lots or sub-lots in accordance with subparagraph 8.3.c.1.B of this rule the cost of such testing will be deducted on current estimates from the amount due the contractor by the division. The cost of such testing will be determined in accordance with the unit costs per test as shown in Table 9-1, published in MP 109.00.20. 11.3. Compensation for Altered Quantities. When the accepted quantities of work vary from the quantities in the bid schedule, the contractor shall accept as payment in full, so far as contract items are concerned, payment at the original contract unit price for the accepted quantities of work done. No allowance except as provided in subsection 6.2 of this rule will be made for any 71 157CSR3 increased expense, loss of expected reimbursement, or loss of anticipated profits suffered or claimed by the contractor resulting either directly from such alterations or indirectly from unbalanced allocation among the contract items of overhead expense on the part of the bidder and subsequent loss of expected reimbursements therefore or from any other cause. 11.3.a. Increased work involving supplemental agreements will be paid for as stipulated in such agreements. The contractor shall furnish substantiating data required in the preparation of these agreements. 11.4. Force Account Work. If directed by the division, as provided for in subsection 6.3 of this rule, the contractor shall perform extra or unforeseen work on a force account basis and shall be compensated in the following manner: 11.4.a. Labor. For all labor and for foremen and superintendence in direct charge of the specific force account operations, the contractor or subcontractor shall receive the actual current local rate of wage, agreed to in writing before beginning work, paid for each and every hour that the labor and foremen are actually engaged in the work. 11.4.a.1. The contractor or subcontractor shall also receive the actual costs paid to, or in behalf of, workmen by reason of subsistence and travel allowances, Worker's Compensation insurance premiums, unemployment insurance contributions, Social Security and Medicare taxes, health and welfare benefits, and pension fund benefits when such amounts are required by employment contract generally applicable to the classes of labor employed on the work. The contractor or subcontractor shall furnish satisfactory evidence of the rate or rates and the amount paid for insurance premiums and taxes. 11.4.a.2. For overhead and profit, an amount equal to sixteen percent of the sum of the above labor costs shall also be paid to the contractor or subcontractor. 11.4.b. Materials For all materials used in the specific force account operation and incorporated into the project, the contractor or subcontractor shall receive the actual cost of materials delivered including labor charges for employees of the material supplier who are required to perform an incidental amount of work in conjunction with the material furnished and freight charges paid exclusive of equipment rentals as hereinafter set forth. The contractor or subcontractor shall furnish invoices to document actual materials costs; however, if materials used on the force account work are not specifically purchased for such work but are taken from the contractor's or subcontractor's inventory, then in lieu of the invoices the contractor or subcontractor shall furnish an affidavit certifying that such materials were taken from inventory, that the quantity claimed was actually used, and that the price and freight claimed represent the contractor's or subcontractor's actual cost. 11.4.b.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above materials costs shall also be paid to the contractor or subcontractor. All materials paid for will become the property of the division. 11.4.c. Equipment. The movement of equipment to and from the specified force account operation shall be as directed by the engineer. All equipment must be in good operating condition to qualify for rental payment. For all contractor or subcontractor equipment either rented or owned, the rental rates and operating costs include full compensation for major repairs, repairs due to normal wear and tear, labor and parts needed for routine daily servicing of the equipment, operating expendables such as fuel, lubricants, tires and ground engaging components, and the percentage of mechanic's wages and related maintenance vehicles chargeable to preventive and field maintenance. 72 157CSR3 11.4.c.1. Payable time periods shall not include time elapsed before the engineer has advised the contractor or subcontractor that the equipment is required for use in the force account or time elapsed after the engineer has advised the contractor or subcontractor that the equipment is no longer needed exclusive of costs for transportation, assembly and disassembly set forth in paragraph 11.4.c.6 of this rule, time elapsed while equipment is broken down or time spent repairing equipment. No separate payment will be made for any type of repairs to equipment. 11.4.c.2. When equipment is rented from a rental agency which the contractor or subcontractor owns or is part owner, the equipment shall be treated as owned equipment and rental rates determined accordingly. 11.4.c.3. Rented Equipment. For required equipment which is not owned and must be obtained by rental, the contractor or subcontractor shall be paid the actual rental cost for the equipment for the time that the equipment is required solely for use in the force account work. The contractor or subcontractor shall furnish invoices to document actual equipment rental costs. Estimated operating costs shall also be paid for each hour the rented equipment is actually operated in the force account work, not to exceed the estimated operating cost per hour set forth for the equipment in the current Rental Rate Blue Book for Construction Equipment published by Dataquest, Inc. 11.4.c.3.A. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for rented equipment shall also be paid to the contractor or subcontractor. 11.4.c.4. Owned Equipment. For owned equipment, other than small tools costing less than $500 each, the contractor or subcontractor shall be paid a rental rate determined from the current Rental Rate Blue Book for Construction Equipment published by Dataquest, Inc. The hourly rate shall be determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region. The hourly rate for overtime work shall be determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region. The estimated operating cost per hour set forth in the Rental Rate Blue Book shall also be paid for each hour the equipment is actually operated in the force account work. 11.4.c.4.A. If the owned equipment is not referred to in the current Rental Rate Blue Book, the hourly rental rate will be an agreed amount not to exceed the hourly rate computed as follows: A monthly rental rate equivalent to six percent of the contractor's or subcontractor's original acquisition cost of the equipment shall be established. The hourly rental rate shall then be determined by dividing this monthly rental rate by 176. Operating costs in such cases shall be a reasonable agreed-upon amount for each hour the equipment is actually operated in the force account work. 11.4.c.4.B. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for owned equipment shall also be paid to the contractor or subcontractor. 11.4.c.5. Idle Equipment. For required equipment held on the site of force account work on an idle basis at the request of the engineer, the contractor or subcontractor shall be paid for such idle time at an adjusted hourly rental rate exclusive of estimated operating costs. For owned equipment, such payment shall be made at one-half the hourly rate determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region. 73 157CSR3 11.4.c.5.A. Payment of idle time for owned equipment on force account work shall not exceed 8 hours each day less the hours the equipment operates that day. Payment for idle time shall not be made on Saturday, Sunday, holidays set forth in subsection 2.51 of this rule, when equipment is operated more than 8 hours per day or 40 hours per week, when equipment is idle due to the contractor's or subcontractor's decision not to work on potential working days or when equipment is idle due to weather. 11.4.c.5.B. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for idle owned equipment shall also be paid to the contractor or subcontractor. 11.4.c.6. Miscellaneous. Transportation charges for owned or rented equipment to and from the site of the force account work shall be paid provided the equipment is obtained from the nearest approved source, the return charges do not exceed the delivery charges, haul rates do not exceed the established rates of licensed haulers, and charges are restricted to those units of equipment not already available and not on or near the project. In the case of owned equipment, the contractor or subcontractor shall be paid idle time rates for the equipment being hauled in addition to the applicable rental rates for the hauling equipment. All costs associated with the assembly and disassembly of the equipment for transport shall also be paid. All charges by persons or firms other than the contractor or subcontractor shall be supported by satisfactory invoices. 11.4.d. Taxes. When the work is done by the contractor, the amount of state and municipal taxes related to the force account work required to be paid by the contractor will be reimbursed to the contractor. For work performed by a subcontractor, the amount of extra cost paid by both the contractor and the subcontractor for corporate and business taxes levied by the state and municipalities due to the force account work shall be paid to the contractor. 11.4.d.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for state and municipal taxes shall also be paid to the contractor or subcontractor. 11.4.d.2. For work performed by a subcontractor, the amount of extra cost incurred by the contractor for increased business and corporate taxes shall be computed on the gross amount of the force account work, exclusive of the increased corporate and business taxes incurred by the subcontractor. 11.4.e. Contract Bond. The cost of premiums for contract bond required by subsection 5.5 which is extra cost and related to the force account work will be paid to the contractor. 11.4.e.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for contract bond shall also be paid to the contractor or subcontractor. 11.4.f. Insurance. The cost of premiums for Contractor's Public Liability and Property Damage Liability Insurance required by paragraph 5.6.a.1. and Contractor's Protective Public Liability and Property Damage Liability Insurance required by 5.6.b of this rule which is extra cost and related to the force account work will be paid to the Contractor. 11.4.f.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for insurance shall also be paid to the contractor or subcontractor. 11.4.f.2. When the force account work involves a railroad and the contractor is required to carry Railroad's Protective Public Liability Insurance or Railroad's Protective Property 74 157CSR3 Damage Liability Insurance, or both, the cost of premiums for this insurance which is extra cost and related to the force account work will be paid to the contractor. 11.4.f.3. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for railroad insurance shall also be paid to the contractor or subcontractor. 11.4.g. Administrative. Allowance for force account work performed by an approved subcontractor, the contractor shall be paid an administrative allowance equal to sixteen percent of the total amount paid for all work performed by the subcontractor on the specific force account operation exclusive of additives paid for overhead and profit. 11.4.h. Records. The contractor's representative and the Engineer shall compare records daily of the cost of work done as ordered on a force account basis, and shall indicate agreement by signature on such records. 11.4.h.1. No payment will be made for work performed on a force account basis until the contractor has furnished the engineer an itemized statement of the cost of such force account work detailed as follows: 11.4.h.1.A. Name, classification, date, daily hours, total hours, wage rate, fringe benefit rate and extended amounts for each laborer and foreman. 11.4.h.1.B. Quantities of materials, unit prices and extended amounts. 11.4.h.1.C. Transportation of materials. 11.4.h.1.D. Designation, dates, daily hours, total hours, rental rate/hour, operating cost/hour, and extended amount for each unit of equipment. 11.4.h.1.E. Transportation of equipment. 11.4.h.1.F. Rates for property damage insurance, liability insurance, bond, municipal tax, subsistence and travel allowance, Worker's Compensation insurance, unemployment insurance, Social Security and Medicare taxes. 11.4.h.2. The contractor must also furnish satisfactory evidence of the actual cost for each of the charges listed on the itemized statement (excluding those charges for owned equipment determined from the Rental Rate Blue Book). 11.4.i. Basis of Payment. The compensation provided in subdivision 11.4.a to 11.4.g of this rule, inclusive, shall be received by the contractor as payment in full for extra work done on a force account basis, including all labor, materials, equipment, fuel, lubricants, maintenance of equipment, administration, overhead, use of small tools and equipment for which no rental is allowed, profit, taxes, bond costs, insurance premiums, unemployment contributions and any other expense arising from the performance of the force account work. 11.5. Eliminated Item. Should any items contained in the proposal be found unnecessary for the proper completion of the work, the engineer may, upon written order to the contractor, eliminate such items from the contract, and such action will in no way invalidate the contract. When a contractor is notified of the elimination of items, he or she will be reimbursed for actual work done and all costs incurred, including mobilization of materials prior to the notification. 11.6. Partial Payments. The engineer will make current estimates in writing, once each month on or before the date set by the engineer at the time of starting the work, or from time to time as 75 157CSR3 the work progresses, of the materials complete in place and the amount of work performed in accordance with the contract, during the preceding month or period and the value thereof figured at the unit prices contracted. Current estimates may be prepared for payment on a semi-monthly basis at the discretion of the engineer when the amount due the contractor for work during the semi-monthly period exceeds $10,000. Should there be any doubt by the engineer as to the integrity of any part of the completed work, the estimates for that portion will not be allowed until the cause for such doubt has been removed. 11.7. Payment for Material on Hand. Partial payment may be made to the extent of the delivered costs of material to be incorporated into the work, provided the material meets the requirements of the plans and specifications when delivered in the vicinity of the project or at approved off-site locations. In any event, partial payment for material on hand will not exceed the bid price. Such material shall be stored in acceptable storage places, and the contractor shall furnish evidence of payment for the delivered cost of the material within 90 days of the cut-off date of the estimate on which this material was paid. 11.8. Acceptance and Final Payment. When the project has been accepted, as provided in subsection 7.16 of this rule, the engineer will prepare the final estimate of the quantities of the various classes of work performed. Before final payment is made, the contractor shall execute the statement of acceptance on the back of the final estimate. After the contractor executes such final estimate or if the contractor fails or declines to execute the final estimate within 30 days after receipt, the division will consider the estimate approved and accepted and he or she will be paid the entire sum found to be due after deducting all previous payments and all amounts to be retained or deducted under the provisions of the contract. Upon written request from the contractor received within 30 days of his or her receipt of the final estimate, the time for review and execution of the final estimate will be extended up to 60 additional calendar days. No time beyond the original 30 days allowed for this review will be considered for interest payment under the provisions in the following paragraphs. Should the contractor desire to reserve the right to file a claim with the state court of claims for any sum or compensation not included in the final estimate, growing out of the contract, then a reservation of right stipulating the nature, each item and the amount claimed shall be added at the end of the acceptance statement. This claim must be filed with the state court of claims within 120 days of execution of the final estimate. 11.8.a. All prior partial estimates and payments will be subject to correction in the final estimate payment. 11.9. Price Adjustment Of Fuels. Because of the uncertainty in estimating the costs of fuels that will be used during the life of this contract, adjustment in certain contract items is provided for as follows: 11.9.a. Product price quotations for fuel oil No. 2 (diesel fuel), as published by the Oil Price Information Service (OPIS) will be utilized to establish the contract base price as well as the monthly base price thereafter. These prices will be the average of the individual prices for the following locations: Charleston, West Virginia Ashland, Kentucky Pittsburgh, Pennsylvania Roanoke, Virginia Marietta, Ohio as published on the Wednesday prior to the date of the first letting of the month. 76 157CSR3 11.9.b. If the Wednesday prior to the first letting date of the month falls on a holiday or the price is otherwise not published for that date, the index prices will be based on the next earliest date published by OPIS. 11.9.c. The contract base price (Cbp) and the monthly base price (Mbp) may be found posted on contract administration’s website for fuel and asphalt prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.asp x 11.9.d. Any dispute concerning the (Cbp) shall be resolved during the first voucher estimate review. 11.9.e. The portion of the contract unit price which reflects the cost of the specified material will be adjusted for the change in accordance with the following formulae: a = [(Mbp ÷Cbp) – 1.00] x Cbp x x Q here: a = Price Adjustment bp = Monthly base price at time of placement bp = Contract Base Price at time of bidding = Cost Adjustment Factors per Unit of Contract Item Bid as outlined in chart below = ‘As Constructed’ Quantity 11.9.f. Adjustments in compensation for any period may be either plus or minus. If (Mbp) is greater than (Cbp), the adjustment will be plus. If (Cbp) is greater than (Mbp), the adjustment will be minus. 11.9.g. The adjustment in compensation for diesel fuel used for the listed items will be made on the separate items on the basis of the average diesel fuel requirements for processing a unit of the item as shown in the table below. 11.9.h. The gallons (liters) of diesel fuel for price adjustment will be determined by multiplying the usage factors listed in the table below by the amount of acceptable work performed on the separate adjustable items during an estimate period. 11.9.i. All adjustments will be made based on the gallons (liters) of diesel fuel indicated in the table below and no changes will be made for variations between these usage factors and the actual factors. COST ADJUSTMENT FACTORS FOR FUEL USAGE Class Units Factor 77 157CSR3 1 Excavations under sections 207 and Gallons per cubic yard 0.25 211 of the Standard Specifications Roads and Bridges 2 Crushed aggregate under sections Gallons per ton* 0.62 307, 311, and 405 of the Standard Specifications Roads and Bridges 3 Bituminous Concrete under sections Gallons per ton 1.06 401 and 402 of the Standard Specifications Roads and Bridges 4 Rigid concrete pavement under Gallons per cubic yard 0.76 sections 501 and 502 of the Standard Specifications Roads and Bridges * Where the pay item for aggregate is in cubic yards, conversion to tons for the purpose of fuel price adjustment will be made on the basis that one cubic yard equals 1.75 tons. 11.9.j. Any difference between the checked final quantity and the sum of quantities shown on the monthly estimates for any item will be adjusted by the following formula: FA = (FCQ PRQ) x EA where: FA = Final Adjustment (dollars) FCQ = Final Checked Quantity PRQ = Total Quantity Previously Reported on Monthly Estimates EA = Total Adjustment Shown on Monthly Estimates (dollars) 11.9.k. The monthly base price for determining price adjustments for all work performed after the contract completion date, as revised by approved time extensions, will be the monthly base price (Mbp) at the time of the contract completion date (as extended) or at the time the work was performed, whichever is less. 11.9.l. The final adjustment will consider any error(s) that may have been made in the computation of monthly adjustments. 11.10. Price Adjustment of Asphalt Binder. Because of the uncertainty in estimating the cost of petroleum products that will be used during the life of this contract, adjustment in compensation for certain contract items is provided for as follows: 11.10.a. The contract items listed in the table of materials to be adjusted for price of asphalt at the time of placement will be adjusted in accordance with the division’s indices for asphalt binder. The bidding index (Ib) for asphalt binder will be equal to the placement index for the month immediately prior to the month in which the project is bid. The placement index (Ip) will be the price in effect for the month in which the specified adjustable material was actually placed. Both the bidding index (Ib) and the placement index (Ip) will be based on the average of the posted prices of PG 64-22 asphalt binder per ton/megagram as reported from the following sources for the first day of each calendar month: 78 157CSR3 Marathon Petroleum Company, LLC, Catlettsburg, Kentucky Marathon Petroleum Company, LLC, Floreffe, Pennsylvania Asphalt Materials, Inc., Marietta, Ohio NuStar Asphalt Refining Company, Baltimore, Maryland Associated Asphalt, Martinsburg, West Virginia 11.10.b. The bidding index (lb) and the placement index (Ip) may be found posted on contract administration’s website for fuel And asphalt prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.asp x 11.10.c. If one of the sources listed above changes ownership and/or name the posted price for that terminal will continue in use as though the ownership and/or name change had not occurred. 11.10.d. If one of the sources used for determining either the bidding index or the placement index goes out of business, any future index will be based on the average of the remaining sources. Thus, the bidding index (Ib) could be based on the average of five sources and the placement index (Ip) on the average of four sources or vice-versa. If a source that goes out of business reopens at a later date, the placement index would once again be based on the average of five sources as indicated above. 11.10.e. The posted price for each source will be compared to the average of all sources. If the difference between the average and the individual price is greater than 25 % of the average, that individual source will be excluded from the calculation of the average price (Ib) or (Ip) and a new average will be calculated using the remaining sources. 11.10.f. Sources chosen for the index are required to report their posting to the division no later than the Wednesday prior to the first day of each month. Failure to report in a timely manner may impact source approval. 11.10.g. The portion of the contract unit price which reflects the cost of the specified material will be adjusted for the change in accordance with the following formulae: Pa = [(Ip ÷ Ib) – 1.00] x Q x Applicable “C” Factor (C1 or C2) Where: Pa = Price Adjustment Ip = Price Index at time of placement Ib = Price Index for Bidding C1, C2 = Adjustable Material Cost per Unit of Contract Item Bid Q = ”As Constructed” Quantity 11.10.h. The price index for determining price adjustments for all work performed after the contract completion date, as revised by approved time extensions, will be determined as follows: The price index (Ip) shall be for the month in which the contract completion date (as extended) alls, or the price index for the month in which the work was performed, whichever is less. 11.10.i. Table of Materials to Be Adjusted for Price of Asphalt at the Time Of Placement: 79 157CSR3 TABLE OF MATERIALS TO BE ADJUSTED FOR PRICE OF ASPHALT AT THE TIME OF PLACEMENT (English & Metric) Adjustable Bidding Adjustable Material Index Material (Ib) Cost (C), (C1) or (C 2 Dollars Per Unit of Asphalt Mixture or Per Gallon (Liter) or Liquid Asphalt Material Asphalt Binder under * (C1) Sections 401 and 402 Asphalt Binder under Section * (C ) 2 311 *The bidding Indexes (Ib) and the placement indexes (Ip) may be found posted on Contract Administrations website for Fuel And Asphalt Prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.asp x 11.10.j. The bidding index for asphalt binder will be the price in effect for the month prior to the month in which this contract is let. 11.10.k. Any dispute concerning the bidding index shall be resolved during the first voucher estimate review. 11.10.l. In order to determine the applicable adjustable material cost (“C”) factor for asphalt material under sections 405 and 636, multiply the bidding index (I b by 0.0027 for English or 0.001 for metric. 11.10.m. The “C” values given per gallon of liquid asphalt material is based on the use of an emulsion which is assumed to contain 65% asphalt material and a gallon of emulsion weighs 8.43 pounds of a liter of emulsion weights 1.00 kg. If a cut-back asphalt is used “C” as given in the above table must be multiplied by 1.54 to arrive at a modified “C” factor for use in the formula. No change will be made in the adjustable material cost (C) for variations between these assumptions and actual factors. 11.10.n. The adjustable materials costs (C )1and (C )2are based on the approved job mix formula for the specific asphalt mixture being placed in accordance with the following formulae: (C1) = b x Acx 1 ton or [ (C )1= I b x c 1 megagram ] 80 157CSR3 where A ecuals the approved asphalt content expressed in decimals, i.e. 5.8% asphalt content equals 0.058. When reclaimed asphalt pavement (RAP) is used in the mix, A is the c virgin or new asphalt added to the mix. 3 (C2) = b x A c 1.6 tons/cy or [ (C ) 2 I b x c 1.9 mg/m x 1 meter ] where A ecuals approved asphalt content expressed in decimals and it is assumed that a cubic yard of asphalt treated open-graded free draining base weights 1.6 tons or 1.9 Mg. No change will be made in C 2or variations between this assumption and the actual factor. 11.11. Load Limit Violations and Weigh Tickets. The allowable gross weight for any vehicle being used to haul materials on publicly maintained highways under the terms of this contract shall be as follows. 11.11.a. Title 23 Code of Federal Regulations, Section 658.17, establishes maximum allowable gross weight on the Interstate System. The maximum allowable gross weight on WV and US Routes will be as established in W. Va. Code §17C- 17-1 et seq. and §17C-17A-1 et seq. The public service commission, weight enforcement section is responsible for the enforcement of these provisions. 11.11.b. A weigh ticket shall be required with each load of material from a commercial source which would normally have truck scales. This includes, but is not limited to, all asphalt paving materials and all aggregates regardless of the contract pay unit. The weigh ticket shall include gross, tare, and net weights, time and date of loading, item number or description of materials, contract number or project number, number of axles on haul unit, license number of haul unit, and signature of the weigher certifying that all information on the ticket is correct. If the weigher’s name is printed by the computer on the ticket, then it only needs to be initialed by the weigher. 11.11.c. For material from a commercial source or a batch plant, which would not normally have truck scales, a weigh ticket documenting the tare weight, number of axles on the haul unit, license number of haul unit, date weighed, location of scales, and signature of the weigher certifying that all information on the ticket is correct, may be supplied for each haul unit as an alternate to the ticket required in the previous paragraph. The tare weight ticket shall be supplied for each contract on a yearly basis and when modifications are made to the vehicle or combination of vehicles. The weight of the material delivered shall be calculated and furnished by the vendor/supplier shipping the material to the project site or DOH facility. This includes, but is not limited to, concrete, structural steel, piling, reinforcing steel and all prepackaged material of known weight, such as cement, grout, fertilizer, lime, abrasives, etc. 11.11.d. If the haul unit is a combination of vehicles, the license number shall be supplied for each component. The tare weight shall be for the complete haul unit. 11.11.e. All weighing shall be done on scales approved and sealed by the West Virginia Division of Labor, Bureau of Weights and Measures. If the scales are moved or upon the request of the engineer, the scales shall be reapproved and sealed. The engineer shall be notified of any scale malfunctions. The division may, at its option, accept inspection and sealing by out of state agencies when the material is being loaded outside West Virginia. 11.11.f. Any material covered by this provision which is delivered without the proper weigh ticket shall not be accepted by the division. 11.11.g. Nothing in this provision relieves any party from compliance with the State Law on load limits or any fines which may be assessed for violation of said law. 81 157CSR3 11.11.h. In addition, for asphalt, precast concrete products, pipe, reinforcing steel, aggregate, and concrete, electronic ticket delivery (e-tickets) shall be required with the standard information provided as on the paper ticket. The e-ticketing system must interface with the WVDOH e-ticketing portal. A digital signature of the weigh person on an e-ticket shall be considered the equivalent as a hand-signed/initialed, printed ticket. §157-3-12. Miscellaneous Provisions. 12.1. Common Carrier Rates. The common carrier rates and taxes thereon which are current on the date of opening the bids shall be considered applicable to all items subject to transportation charges there under. 12.1.a. If such rates or taxes are thereafter increased by public authority on any materials entering into and forming a part of the contract, an amount equal to the sum of all such increases, when evidenced by receipted common carrier bills, will be paid to the contractor by the division. All claims for such payments shall be made within 60 days after final acceptance of the work. 12.1.b. If such rates or taxes thereafter reduced by public authority on any materials entering into and forming a part of the contract, an amount equal to the sum of all such decreases, when evidenced by receipted common carrier bills, will be deducted by the division from the monies due the contractor on the work performed under the contract. 12.1.c. When deliveries of materials are performed by means other than common carriers, an increase or decrease in price will not be allowed or charged for changes in rates or methods of delivery. 12.2. Minimum Wage Determinations. The contractor shall comply with the requirements of the Davis-Bacon Act on all Federal-Aid construction projects, as applicable. https://www.dol.gov/agencies/whd/government-contracts/construction#:~:text=Davis- Bacon%20Act%20and%20Related%20Act%20contractors%20and%20subcontractors,Labor%2 0to%20determine%20such%20locally%20prevailing%20wage%20rates. 12.3. Nondiscrimination of Employees (Governor's Executive Order). During the performance of this contract for public work or for goods or services, the contractor agrees as follows: 12.3.a. The contractor and subcontractors shall provide equal employment opportunity for all qualified persons and shall not discriminate against any employee or applicant for employment because of race, creed, color or national origin. 12.3.b. Contractors and subcontractors are required to give written notice to any labor union with which they have a collective bargaining or other agreement, that they have complied with the requirements of the executive orders by the Governor of the State of West Virginia, dated October 16, 1963, and December 15, 1965. These provisions shall be fully and effectively enforced and any breach of them will be regarded as a material breach of the Contract. 12.4. Provisions for West Virginia State Funds Contracts. In addition to the forgoing requirements, contractors on a project funded with state funds must comply with the West Virginia Jobs Act, West Virginia Code | §21-1c (wvlegislature.gov) 82 157CSR3 §157-3-13. Disqualification Suspension, and Revocation of Pre-qualified Contractors. 13.1. General Purposes. This section provides procedures regarding the Division of Highways' disqualification, suspension, and revocation of pre-qualified contractors in instances where there is cause to believe that a pre-qualified contractor is not complying with laws or regulations that pertain to the competition for or the performance of contract work awarded by the Division of Highways. 13.2. Disqualification. The Commissioner may, in his or her sole discretion, disqualify a pre- qualified contractor or its affiliates from bidding on division contracts for any of the following causes: 13.2.a. Conviction, judgment or admission of a bidding crime. This paragraph includes any admission in the presentation of testimony of an unindicted co-conspirator or any admission in testimony protected by a grant of immunity to the contractor in any jurisdiction. 13.2.b. Conviction, judgment or admission of any other crime for an illegal act(s) that pertains to competition for or performance of contract work for the division. 13.2.c. Debarment by the Federal Highway Administration. 13.2.d. Deliberate and repeated violation of regulations promulgated by the Commissioner in accordance with the West Virginia Code. 13.2.e. That a vendor who has been debarred pursuant to the provisions of W. Va. Code §5A-3-33d, may not bid on or be awarded a contract. 13.2.f. Any other cause affecting the performance of contract work for the division that is of a serious and compelling nature. 13.3. Suspension. 13.3.a. The Commissioner may, in his or her sole discretion, suspend the Certificate of Qualification of a pre-qualified contractor where there is reasonable belief that any of the reasons set forth in subsection 13.3 of this rule for disqualification is present. If the Commissioner determines a suspension is proper, he or she shall furnish written notice by registered mail to the contractor and any named affiliates stating: 13.3.a.1. that a suspension has been imposed; 13.3.a.2. the effective date of the suspension; 13.3.a.3. the cause or causes giving rise to the suspension; 13.3.a.4. that the suspension is for a temporary period pending the completion of an investigation and any ensuing legal or disqualification proceedings; 13.3.a.5. that the pre-qualified contractor may within l0 days of receipt of the notice, request in writing an informal hearing, which will be held at a mutually agreeable date, but 83 157CSR3 no later than 60 days subsequent to the receipt of the pre-qualified contractor’s request for an informal hearing. 13.3.b. A suspension shall be for a temporary period pending the completion of investigation or any ensuing legal or disqualification proceeding unless terminated by the Commissioner. A suspension shall not continue for more than six (6) months from its effective date, unless civil or criminal action regarding the alleged violation has been initiated within that period, or unless disqualification proceedings have been initiated. The suspension may continue until the legal or disqualification proceedings are completed. 13.4. Disqualification Procedures. 13.4.a. After determining that cause exists under subsection 13.3 of this rule to disqualify a pre-qualified contractor, the Commissioner or his or her duly authorized representative shall furnish written notice of a hearing to the pre-qualified contractor and any named affiliates. The notice shall state: 13.4.a.1. that disqualification is being considered; 13.4.a.2. the facts or allegations giving rise to the proposed disqualification; 13.4.a.3. the cause or causes under subsection 13.3 of this rule relied upon for proposing disqualification; 13.4.a.4. the time, place and date of the hearing; 13.4.a.5. the name and mailing address of the hearing examiner; 13.4.a.6. if a suspension is not in effect before the notice is sent, that contracts may not be awarded to the contractor by the division pending the decision of the hearing examiner. 13.4.b. The hearing will be conducted in accordance with 157CSR1-3 of the West Virginia Division of Highways' Rules. The hearing examiner may extend the date of any hearing upon request of the contractor, but the hearing shall not be extended to later than sixty (60) days from the date the notice was sent. A transcribed record of the hearing shall be made unless the Commissioner and the contractor waive that requirement. At the conclusion of the hearing, the hearing examiner shall issue to the Commissioner and the contractor and all named affiliates written findings of fact and the recommended administrative action. 13.4.c. The Commissioner, after receiving the record, findings of fact and recommendations of the hearing official shall determine the administrative action to be taken. The Commissioner shall notify the named contractor or contractors of his or her determination in writing. If the determination is to impose disqualification, the determination shall set forth the period of time for which disqualification is imposed. 13.4.d. The determination made by the Commissioner may include all named affiliates of the contractor, provided that each decision to include an affiliate is made only after allowing the affiliate to participate in the hearing with the same procedural rights afforded the contractor. 13.5. Period of Disqualification. 13.5.a. The Commissioner may disqualify a pre-qualified contractor for a period of three months to three years. 84 157CSR3 13.5.b. At the sole discretion of the Commissioner the disqualification may be reduced, lifted or suspended at any time, if it is in the public interest to do so. Any mitigating circumstances may be considered in the decision to impose, reduce, lift or suspend disqualification and may include, but shall not be limited to: 13.5.b.1. the degree of culpability of the disqualified contractor; 13.5.b.2. restitution by the disqualified contractor to the Division for any overcharges or other damages; 13.5.b.3. cooperation by the disqualified contractor with any investigation undertaken by appropriate State agencies or other sovereign bodies; 13.5.b.4. elimination of the causes for which the disqualification was imposed. 13.6. Revocation. Revocation occurs when a contractor’s prequalification status is revoked for a period of 12 months for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises. 13.7. Revocation Procedures. The following procedures shall be followed when a contractor’s prequalification status is revoked for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises: 13.8. The Division shall promptly notify the contractor in writing and provide them with an opportunity to appeal the decision. The Division shall follow the hearing procedures set forth in W. Va. Code St. R. § 157-1-3. Furthermore, pursuant to this rule the contractor’s pre-qualification status will be suspended during an investigation to determine if revocation is applicable or an ensuing legal challenge to the revocation. 13.8.a. Within 30 days of the notice that the contractor’s pre-qualification status has been revoked, the contractor may send a written request for an informal appeal to Contract Administration Division at DOHContractProcure@wv.gov or to West Virginia Department of Transportation, Commissioner of Highways (c/o Contract Administration Division), Building Five, Room 840, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305. 13.8.b. Within 30 days of receipt of the request for an informal appeal, the Director of Contract Administration Division, or his or her designee, will review the request and make a determination. 13.8.c. The Director of Contract Administration, or his or her designee, will present the determination and any associated terms to the Chief Engineer of Construction for approval. 13.8.d. Within 30 days of receipt of the informal appeal, the Contractor shall be notified in writing by the Contract Administration Division Director, or his or her designee, of the determination, and any other terms set forth. 13.8.e. Should the contractor not agree with the determination and/or terms set forth by the Contract Administration Division Director, the contractor may request in writing a formal hearing to be presided over by the Commissioner, or his or her designee. 85 157CSR3 13.8.f. The Commissioner, or his or her designee, shall give all parties involved not less than 10 days’ notice of the time and place of hearing, in writing. 13.9. Effect of Disqualification, Suspension, or Revocation by Other Jurisdictions. The Commissioner shall not be bound by the disqualification, suspension, or revocation of a contractor by other jurisdictions, but may consider any and all information available from whatever source to determine if a contractor lacks the qualities of moral and/or ethical integrity so long as there is compliance with the procedures set forth in these regulations. 13.10. List of Disqualified, Suspended, or Revoked Contractors. The Commissioner shall maintain a list of all contractors and affiliates who have been disqualified, suspended, or revoked in accordance with these rules. 13.11. Notice to Contractors. A copy of this rule shall be mailed to each pre-qualified contractor. 86