New Jersey

Department of Transportation

Standard Specifications

for Road and Bridge Construction

2007

Division 100 – General Provisions

Section 101 – General Information

101.01 Introduction  

The 2007 Standard Specifications for Road and Bridge Construction are written to the Bidder before Award and to the Contractor after Award. Sentences that are written as commands are directed to the Contractor. For example, a requirement to construct a cofferdam would be expressed as, “Construct cofferdams to ensure the stability of the excavation and to keep the excavation free of water,” rather than “The Contractor shall construct cofferdams to ensure the stability of the excavation and to keep the excavation free of water.”

Titles and headings of sections and subsections are for convenience and do not bear on the meaning of the text. Whenever any Section, Subsection, Subpart, or Subheading is amended in the Special Provisions by such terms as changed to, deleted, or added, it is construed to mean that it amends that Section, Subsection, Subpart, or Subheading of the Standard Specifications.

When a publication is specified or referenced, if no issue or effective date for the publication is specified, use the issue or version of the publication that is current at the opening of bids.

101.02 Abbreviations  

The following abbreviations are used in the Contract:

101.03 Terms  

When the following terms are used in the Contract, the meaning is as follows. If the term is capitalized, it is capitalized in the Specifications.

Acceptance. The written acceptance by the Department of the Work.

acceptance testing. Testing conducted by the Department to measure the degree of compliance to the Contract.

actual cost. The computed cost using calculations provided in 104.03.08.

addendum. A Contract revision or response to a Contractor inquiry issued after advertisement and before the opening of bids.

approval. The Department's written notification that a submission or portion of work is believed to be in conformance with the Contract.

as-built quantity. The quantity of a completed Item eligible for payment.

authorized funding amount. The amount of funds authorized by the Department for the Contract.

bridge. A structure, other than a culvert, including supports, erected over a depression or an obstruction, such as water, 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 the structure of more than 20 feet between undercopings of abutments or extreme ends of openings for multiple boxes. Structure dimensions are defined as follows:

1. bridge length. The length of a bridge structure is the overall length measured along the line of survey stationing from back to back of backwalls 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.
2. bridge width. The clear width measured at right angles to the longitudinal centerline of the bridge between the bottom of curbs, or in the case of multiple height of curbs, between the bottoms of the lower risers or, if curbs are not used, between inner faces of parapet or railing.

Change Order. A written order issued by the Department to the Contractor after execution of the Contract authorizing one or more of the following:

1. Changes in the Work.
2. Modifications in the basis of payment.
3. Modifications to Contract Time.

Completion. When all of the following have occurred:

1. The Work has been satisfactorily completed in all respects according to the Contract.
2. The Project is ready for use by the Department as required by the Contract.
3. The Contractor has satisfactorily executed and delivered to the RE all documents, certificates, and proofs of compliance required by the Contract including the Notice of Completion.

construction operations. Physical construction of work done in the performance of the Contract within the Project Limits. Does not include off-site mobilization, procurement and off-site storage of materials and plants, engineering, performance bond and payment bond, surveys, working drawings, off-site field offices, schedules, certificates, forms, or documents.

Contract. The written integrated agreement between the Department and the Contractor setting forth the obligations of the parties, including, but not limited to, the performance of the Work and the basis of payment.

The Contract includes the advertisement, Proposal, Certification as to Publication and Notice of Advertisement for Proposal, bid, Appointment of Agent by Nonresident Contractors, Resolution of Award of Contract, Executed Form of Contract, performance and payment bonds, Specifications, Plans, Right-of-Way Plans, permits, boring logs, pavement core records, addenda, Change Orders, and Field Orders, all of which are to be treated as one instrument whether or not set forth at length in the form of Contract. Other information mailed or otherwise made available to the prospective bidders before the opening of bids is not part of the Contract unless specified as such.

Contract Time. The number of working days allowed to complete the work for a milestone or the date by which work must be completed, as provided in the Contract and as modified by Change Order. When Interim Completion and Completion requirements are specified as a specific date instead of the number of working days, achieve Interim Completion or Completion on or before that date.

Contractor. The individual, firm, partnership, corporation, or any acceptable combination thereof contracting with the Department for performance of the Contract. For the purpose of carrying out the Contract, it also means the Contractor's representative.

day. Every day shown on the calendar.

Department. The Department of Transportation of the State of New Jersey, as created by law, acting through duly authorized representatives, such representatives acting within the scope of the particular duties delegated to them.

Department Laboratory. The main testing laboratory of the Department at 930 Lower Ferry Road, P.O. Box 607 Trenton, New Jersey 08625, or such other laboratory as the Department may designate.

Estimate. Progress payment made to the Contractor by the Department.

Extra Work. New Work and quantity adjustments to Items that are not the result of as-built measurement or calculation.

Field Order. Written direction, signed by the RE, requiring action by the Contractor.

highway, street, or road. A general term denoting a public way for purposes of vehicular travel, including the entire area within the ROW (see Figure 101-1).

holiday. A legal holiday as defined by N.J.S.A. 36:1-1.

inspector. The Department's authorized representative assigned to inspect the Work for conformance to the Contract.

Interim Completion. A milestone other than “Completion of Work,” requiring completion by a specified date or within a specified time.

Item. A specifically described portion of Work for which there is a unit or lump sum price. Items described in the Specifications are designated in all capital letters.

ME. The Department's Manager of the Bureau of Materials, or the Department's Regional Materials Engineer and their designated representatives.

land surveyor. A person who is legally authorized to practice land surveying in New Jersey according to the provisions of N.J.S.A. 45:8-27, et seq.

manufacturer's recommendations. Recommendations and instructions by the manufacturer including but not limited to the construction requirements, drawings, plans, and material requirements.

New Work. Work directed by the Department that is not covered under an existing Item or combination of Items in the Contract. Items established to provide payment modifications as specified in the Contract, such as damages, bonuses, and penalties, are not New Work.

Others. An individual or a legal entity other than the Contractor, the Surety, or an individual or a legal entity in a contractual relationship with the Contractor or the Surety. For example, the term “Others” may include the Department, a Utility, or another contractor on the Project.

pavement structure. The combination of pavement, base courses, and when specified, a subbase course, placed on a subgrade to support the traffic load and distribute it to the roadbed (see Figure 101-1). These various courses are defined as follows:

1. pavement. One or more layers of specified material of designed thickness at the top of the pavement structure.
2. base course. One or more layers of specified material of designed thickness placed on the subgrade or subbase.
3. subbase. One or more layers of specified material of designed thickness placed on the subgrade.

plan. The Contractor's proposed methods of performing work including but not limited to materials, equipment, personnel, and schedules.

Plans. The advertised plans as amended by addenda and Change of Plan. This includes the version of the Standard Details specified on the key sheet.

Professional Engineer. A person licensed to practice engineering in the State of New Jersey.

Project. The specific section of highway or other public improvement constructed under the Contract. The Project may include work performed by Others.

Project Limits. The Project Limits are shown on the key sheet and modified as follows:

1. The areas of construction operations and areas used by the Contractor to perform the work. If only a portion of a lane or shoulder of a road is being constructed, the Project Limits include all lanes and shoulders of the roadway.
2. Where only one direction of a road is being constructed, and the road is divided by a median, island, or barrier curb, the Projects Limits include all of the lanes in that direction and the median. Otherwise, the Project Limits include all lanes in both directions.
3. The longitudinal Project Limits include all safety devices and signs excluding signs greater than 1600 feet outside the Project Limits shown on the key sheet.
4. Areas within the ROW provided for the Contractor's use.

Proposal. The schedule of Items and estimate of the various quantities and kinds of Work to be performed for which bid prices are invited. The Proposal also includes the location and description of the Project and the date and time of the opening of bids.

qualified products list (QPL). A list of specific qualified products maintained by the Department for use in the Work. The complete QPL is available at the following website:

http://www.state.nj.us/transportation/eng/materials/qualified

RE. The Department's field representative having direct supervision of the administration of the Contract.

Right-Of-Way (ROW). The land, property, or interest therein acquired for or devoted to transportation purposes or construction of a public improvement (see Figure 101-1).

Right-Of-Way Plans. The most current revisions of the General Property Parcel Maps and Entire Tract Maps approved for use in setting the existing and proposed ROW, including setting out or laying out the various easements within which Items are to be constructed or used to enable construction.

Specifications. The compilation of provisions and requirements for the performance of prescribed work contained in the Standard Specifications, Special Provisions, and Electrical Materials Specifications as modified by addenda.

State. The State of New Jersey.

subcontractor. An individual, firm, partnership, corporation, or any acceptable combination thereof, to which the Contractor subcontracts part of the Work pursuant to 108.01.

subgrade. The surface of the roadbed upon which the first layer of the pavement structure is constructed (see Figure 101-1).

Substantial Completion. When all work is complete, with the exception of landscaping Items listed in 811.04, removal of SESC measures, FINAL CLEANUP, and repair of unacceptable work; provided the RE has determined that:

1. The Project is safe and convenient for use by the public.
2. Failure to complete work and repairs excepted above will not result in the deterioration of other completed work.
3. The value of the remaining landscaping work, removal of SESC measures, repairs, and FINAL CLEANUP is less than 2 percent of the Total Adjusted Contract Price.

Superintendent. The Contractor's authorized representative responsible for and in charge of the Work and is authorized by the Contractor to receive all communications from the Department.

Surety. The individual, partnership, or corporation, other than the Contractor, that has provided a proposal bond, a performance bond, or a payment bond.

Testing Agency. A privately-owned facility capable of testing and evaluating component parts, or the whole, for certification of the composition or construction of the material or product. The testing agency must be an AASHTO-accredited laboratory for each field of accreditation and type of material to be tested.

Total Adjusted Contract Price. The Total Contract Price as it is adjusted through the issuance of Change Orders and the calculation of as-built quantities.

Total Contract Price. The correctly determined summation of lump sum bids and products of all quantities for Items shown in the Proposal multiplied by the unit prices bid.

traveled way. The portion of the roadway for the movement of vehicles exclusive of shoulders and auxiliary lanes (see Figure 101-1).

Utility. The company, agency, or other entity that provides services, including, but not limited to: electric, water, gas, sewer, fiber optic, communications, and railroad, and the Department with regard to its ITS and electrical facilities.

utility. The rails, lines, facilities, or systems owned by Utilities.

Work. Labor, services, materials, equipment, tools, transportation, supplies, and incidentals necessary or convenient for Completion by the Contractor of the construction described in the Contract and the carrying out of all duties and obligations imposed by the Contract wholly, or any portion thereof, on the Contractor.

work. Particular elements, Items, or portions of the Work.

working day. Any day, exclusive of:

1. Saturdays, Sundays, and holidays.
2. Days on which the Contractor is specifically required by the Contract to suspend construction operations.
3. Days on which the Contractor is prevented by any conditions beyond the control of the Contractor and adverse to the current controlling operation or operations, as determined by the RE, from proceeding with at least 75 percent of the normal labor and equipment force engaged on such operation or operations for at least 60 percent of the total daily time being currently spent on the controlling operation or operations for all shifts.

working drawings. Stress sheets, shop drawings, catalogue cuts, calculations, diagrams, illustrations, schedules, performance charts, brochures, and other supplementary plans or similar data prepared by the Contractor or subcontractors, manufacturers, suppliers, or distributors. The Contractor is required to submit working drawings, as specified in 105.05, for approval or certification.

101.04 Inquiries Regarding the Project  

Submit inquiries regarding discrepancies, errors, or omissions, or concerns regarding the intent or meaning of the Contract to the Department as follows:

1. Before Award of Contract. Submit inquiries and/or view other questions/answers by following the format prescribed on the project’s electronic bidding web page.

   The deadline for submitting inquiries is 12:00 noon, 7 days before the opening of bids.
   
   The Department will investigate the information provided in the inquiry and, if the Department determines that a change or response is necessary, the Department will issue an addendum.
   
   Requests for postponement of bids will not receive a response. The Department will issue an addendum postponing bids if warranted.
   
   

2. After Award of Contract. Submit inquiries to the RE through the office specified in the Special Provisions.

Section 102 – Bidding Requirements and Conditions 

102.01 Qualification to Bid  

The Bidder is an individual, firm, or corporation submitting a bid for the advertised Work. The Department will not accept bids from Bidders who fail to meet all of the following criteria:

1. The Bidder has been prequalified according to regulations covering the Classification of Prospective Bidders as required by N.J.S.A. 27:7-35.1, et seq.
2. Before delivery of the bid, the Bidder has disclosed ownership as required by N.J.S.A. 52:25-24.2.
3. At the time the bid is delivered, the Bidder has an effective maximum and project ratings of not less than the amount of its bid.
4. If the Bidder is a corporation not incorporated in the State, the Bidder has been authorized to do business in the State as required by N.J.S.A. 14A:15-2, et seq.
5. For wholly State funded projects, the Bidder is in compliance with N.J.S.A. 19:44A-20.13, et seq.
6. For wholly State funded projects, the Bidder has a valid business registration with the Division of Revenue in the New Jersey Department of Treasury as required by N.J.S.A. 52:32-44.
7. For wholly State funded projects, the Bidder has a valid, current registration with the New Jersey Department of Labor, Division of Wage and Hour Compliance as required by “Public Works Contractor Registration Act,” N.J.S.A. 34:11-56.48, et seq.

102.02 Bidder Registration and Downloading of the Proposal Documents   

This Contract is being bid by use of an electronic bidding process. Electronic bidding information is available on the Department's website. Registration and a subscription fee are required to access the Proposal documents. The Bidder shall download the bidding software. When installing the bid program, the Bidder enters its vendor code assigned by the Department. The Bidder shall not alter or in any way change the software.

The Bidder shall download all Proposal documents from the Department's website. The Department assumes no responsibility for errors or omissions in the downloaded Proposal documents except as specifically provided for in the Contract. The Bidder shall direct questions or problems with downloading or using the electronic files to the contacts identified on the website.

102.03 Revisions Before Submitting a Bid   

The Department will only issue written, graphic, or electronic information to clarify, correct, or change the Proposal documents, Contract, or bidding notices as addenda posted on the website before the opening of bids. It is the obligation of the Bidder to check the Department's website for addenda. The Department will not post addenda less than 24 hours before the time set for the opening of bids, with the exception of addenda postponing the opening of bids.

The Bidder shall acknowledge all addenda posted through the Department’s website.  The addenda acknowledgement folder is included in the Department’s electronic bidding file.  The Department has the right to reject the bid if the Bidder has not acknowledged all addenda posted.

Certain addenda contain amendments. Amendments require revisions to the schedule of Items to be bid. The Bidder shall ensure that the schedule of Items to be bid submitted contains all applicable amendments. The Department has the right to reject bids that do not contain all applicable amendments to the schedule of Items to be bid.

102.04 Examination of Contract and Project Limits  

The Bidder shall carefully examine the Contract and the Project Limits of the proposed Project before submitting a bid. The Bidder shall provide written notice to the contact specified in 101.04 of the Special Provisions, at least 24 hours in advance of any visits to the Project Limits. The Bidder shall ensure that staff visiting the Project Limits have proper identification.

If conditions of the Project Limits are inconsistent with the Contract or there are discrepancies, conflicts, errors, omissions, or ambiguities within the Contract, the Bidder shall immediately notify the Department as specified in 101.04. The Bidder shall evaluate subsurface conditions to determine how these conditions may affect the methods and cost and time of construction. The Bidder shall evaluate, with respect to possible material sources, the quality and quantity of material available, applicable regulatory requirements, and the type and extent of processing that may be required to produce material conforming to the requirements of the Contract. It is understood and agreed that the Bidder has considered in its bid all of the permanent and temporary utilities in their present, new, or relocated positions to the extent required by the Contract and as revealed by its own investigations. It is also understood and agreed that the Bidder is aware that a Utility's service demands, field conditions, and emergencies may affect the Utility's ability to comply with the proposed schedules for utility work.

The structures and the location(s) of lead paint, if any, are listed in the Special Provisions.

Items 1 through 3 below are not a part of the Contract and are made available for information only. The boring logs and pavement cores are part of the Contract, but any reports or interpretations of them are provided for information only. The Department makes no representation, warranty, or guarantee, expressed or implied, by making reports or interpretations available. It is the Bidder's responsibility to obtain the following information:

1. Evaluation of Subsurface and Surface Conditions. The Bidder may inspect the records of the Department's subsurface investigation through the Department's Engineering Documents Unit, 1035 Parkway Avenue, P.O. Box 600, Trenton, NJ 08625-0600. This investigation is not a substitute for the Bidder's own evaluation or judgment in preparing a bid. The Bidder should not rely on any estimates or quantities included in these investigations. The conditions indicated by such investigations or records thereof, and as shown by the cross-sections in the Plans may not be representative of those existing throughout such areas. The Bidder may encounter materials other than, or in proportions different from, those indicated.
   
   The soil and rock descriptions shown on the boring logs are determined by a visual inspection of samples from the various explorations, unless otherwise noted. The Department may make these samples available for nondestructive examination. The observed water levels and other water conditions indicated on the boring logs are as recorded at the time of the exploration. These levels and other conditions may vary considerably, with time, according to the prevailing climate, rainfall, and other factors. If a generalized soil profile is described in the text, it is intended to convey trends in subsurface conditions. The boundaries between strata are approximate and idealized and have been developed by interpretations of widely spaced explorations and samples.
   
   The Bidder is charged with knowledge of the State's physical geography and geology, and in performing its Project Limit evaluation is fully aware of the available publications on that subject matter.
   


2. Utility Agreements. In addition to what is specified in 105.07, the Bidder may inspect or request the Utility agreements, modifications, and orders relating to the Contract through the Department's Division of Project Management, 1035 Parkway Avenue, P.O. Box 600, Trenton, NJ 08625-0600. The Bidder shall obtain information regarding existing utilities, proposed construction of utilities, or relocation of utilities through the respective Utility.
   


3. Existing Plans and As-Builts. The Department will provide a list of existing structures within the Project on the Plans. The Department will list the existing plans and as-builts used in the development of the Contract in the Special Provisions. The Bidder may inspect as-built plans of Department-owned facilities or order copies upon written request through the Engineering Documents Unit. Contour maps may be available for some Projects. Bidders may inspect such maps, or the Bidder may obtain copies for their use upon written request to the Engineering Documents Unit. The Bidder shall obtain plans of municipality-owned or county-owned facilities through the municipality or county. The Bidder shall verify information obtained from the existing documents with regard to its application to bidding and performing the Contract.

Submission of a bid is confirmation that the Bidder has made an independent evaluation and examination and is fully aware of the requirements of the Contract, including all restrictions. Further, the Bidder warrants that the bid prices include all costs to complete the Work.

102.05 Interpretation of Quantities in the Proposal   

The quantities appearing in the Proposal are estimates. The Department has a right to increase or decrease the quantities of Work, or has the right to eliminate Items in their entirety, at its sole discretion.

The Department will pay only for the quantities of work completed as specified in the Contract.

102.06 “If and Where Directed”  

The Proposal may include Items for which the Department has designated quantities as “if and where directed.” The estimated quantities set out in the Proposal for “if and where directed” quantities are presented for the purpose of obtaining a representative bid price, but are not indicative of the Department's intent regarding incorporation into the Project. The RE has the right to direct the Contractor to perform work using “if and where directed” quantities.

102.07 Preparation of the Bid  

The bid is the completed Proposal documents that are submitted by the Bidder to the Department at the time for the opening of bids. The Bidder shall submit a bid produced from the software that was downloaded from the Department's electronic bidding website. The Bidder shall include all addenda in the bid. The Bidder shall specify a price in numerals for each Item. The Bidder shall insert the price in the box provided for the lump sum Item under the column designated as “Amounts.” For unit price Items, the Bidder shall insert the per unit price under the column designated “Unit Price” in the appropriate box at the location provided therefore. When the Bidder intends to bid zero ($0.00) for an Item, the Bidder shall insert a “0” in the “Unit Price” and “Amounts” columns for unit price Items or in the “Amounts” column for lump sum Items.

Where no numeral is provided by the Bidder in either the “Unit Price” or the “Amount” columns for one or more Items, or where no figure is provided in the “Amount” column for one or more lump sum Items, the Department will consider the amount bid to be zero ($0.00) for that Item.

When the Proposal contains alternate Items, the Bidder shall insert only the unit price and amount for the lowest priced alternate Item. When alternate Items in the Proposal have a lump sum pay quantity, the Bidder shall insert only the amount for the lowest priced alternate Item. The Bidder shall construct the alternate Item for which a price has been provided. When the Proposal contains groups of alternate Items, the Bidder shall insert only the unit price and amount for each Item within the lowest priced alternate group. The Bidder shall construct the alternate group of Items for which a price has been provided.

The only entries permitted in the bid are the unit or lump sum prices for Items to be bid. The software will perform all extensions of the unit or lump sum prices and calculate the total bid amounts.

The Bidder shall check the bid before submission using the software. The Bidder shall select “tools” and then select “check bid” and ensure that there are no errors before submitting the electronic bid. For bids submitted by Joint Ventures select “tools” from the software menu and mark the electronic bid as “Joint Bid.” The Bidder may print a completed bid for its records after completing the bid.

102.08 Balanced Bids  

The Bidder shall reflect in the bid price for each Item the cost the Bidder anticipates incurring for the performance of that Item, together with a proportional share of the Bidder's anticipated profit, overhead, and costs to perform work for which no Item is provided.

102.09 Proposal Bond  

The Proposal Bond guarantees execution of the Contract by the Bidder receiving Award.

With the bid submission, the Bidder shall complete the electronic bond form. The Proposal Bond must be satisfactory to the Department and for a sum of 50 percent of the total bid amount.

The Bidder shall ensure that the Proposal Bond is properly completed and furnished by a surety authorized to do business in the State as are listed in the current US Treasury Department Circular 570 as of the date for opening of bids for the particular Contract and are authorized to issue bonds in at least the amount of the Proposal Bond.

The Bidder shall ensure that the Proposal Bond has a power of attorney executed by the Surety. The power of attorney shall set forth the limits of authority of the attorney-in-fact who has signed the bond on behalf of the Surety to bind the company and shall further certify that such power is in full force and effect as of the date of the bond.

The Department will not accept Proposal Bonds that do not comply in all respects with the provisions of N.J.A.C. 16:44-5.1(d) and that are not substantiated by a valid power of attorney executed by the Surety.

102.10 Submission of Bids  

Once the Bidder has completed its bid and made all desired changes, the Bidder shall submit the electronically signed bid via the internet using the appropriate software. An authorized representative of the Bidder is required to digitally sign the bid. Information regarding digital signatures is available on the Department's website. The Department may reject internet bids that are not digitally signed by the authorized representative of the Bidder with an approved digital signature.

The Bidder shall ensure delivery of its bid with all required components and attachments, including, but not limited to the following:

1. Schedule of Items.
2. Updated Financial Statement (Form DC-74B).
3. Proposal Electronic Bidding File with Bidder's Certification.
4. For wholly State funded contracts, acknowledgement of compliance with the registrations specified in 102.01.
5. For wholly State funded contracts, acknowledgement of compliance with N.J.S.A. 19:44A-20.13, et seq.
6. Proposal Bond form.
7. Other related documents as specified in the Contract.
8. On the Disclosure of Investment Activities in Iran (Form DC-16) provided by the Department, certify pursuant to N.J.S.A. 52:32-58, that neither the bidder, nor one of its parents, subsidiaries, and/or affiliates (as defined in N.J.S.A. 52:32-56(e)(3)), is listed on the Department of the Treasury's List of Persons or Entities Engaging in Prohibited Investment Activities in Iran and that neither is involved in any of the investment activities set forth in N.J.S.A. 52:32-56(f). If the bidder is unable to so certify, the bidder shall provide a detailed and precise description of such activities to the Department.

When the Bidder submits bids for 2 or more Contracts that the Department will open on the same day, the Bidder may submit a single Updated Financial Statement instead of a separate statement for each Contract.

The Bidder is solely responsible for any and all errors and for timely submission of the bid, all components thereof, and all attachments thereto, through the electronic bidding system; the Department assumes no responsibility for any claim arising from the failure of any Bidder or of the electronic delivery system to cause any bid, bid component, or attachment to not be delivered to the Department on or before the time set for the opening of bids.

102.11 Withdrawal of Bids  

A Bidder may withdraw a bid after it has been submitted to the Department, provided the request for such withdrawal is received by the Department on the Request for Withdrawal of Bids Form, in writing or by fax, before the time set for bid opening. The Bidder may obtain the Department's Request for Withdrawal of Bids Form from the electronic bidding website.

102.12 Public Opening of Bids  

The Department will open and read bids publicly at the time and place indicated in the advertisement or such other time and place as established by addenda. The Department invites Bidders, their authorized agents, and other interested parties to be present.

102.13 Consideration of Bids  

The Department reviews bids for conformity with the Contract and compares bids on the basis of the correctly determined summation of the correctly determined products of all the quantities for Items shown in the bid multiplied by the unit prices bid together with the sums bid for lump sum Items. The Department will make the total bid amount for all bids available.

102.14 Irregular Bids   

The Department will consider a bid irregular and will reject it if the Department determines that the bid contains a material defect.

102.15 Disqualification of Bidders  

The Department will disqualify a Bidder and reject a bid submitted by that Bidder if the Bidder is determined by the Department to lack responsibility. Factors demonstrating a lack of responsibility include, but are not be limited to:

1. Evidence of collusion among Bidders.
2. Uncompleted work, which in the opinion of the Department, might hinder or prevent completion of additional work if awarded.
3. Failure to satisfy the pre-award requirements for DBE or ESBE as specified in the Special Provisions for Federally funded contracts.
4. Failure to satisfy the pre-award requirements for SBE as specified in the Special Provisions for wholly State funded contracts.
5. Submission of a materially unbalanced bid. A materially unbalanced bid is a bid where there is a reasonable doubt that award to the Bidder submitting a mathematically unbalanced bid, which is structured on the basis of nominal prices for some work and inflated prices for other work, will result in the lowest ultimate cost to the Department.
6. Lack of competency or lack of adequate machinery, plant, or other equipment.
7. Unsatisfactory performance on previous or current contracts.
8. Questionable moral integrity as determined by the Attorney General of New Jersey or the Department.
9. Any other outward actions or lack of action that demonstrates the Bidder is not responsible.
10. Disqualification, suspension, or debarment of an individual, firm, partnership, corporation, or any combination as required by N.J.S.A. 16:44-8.1.

102.16 Rejection of All Bids   

The Department has the right to reject all bids when the Department deems it advisable to do so in the best interest of the State or public.

Section 103 – Award and Execution of Contract

103.01 Award of Contract   

The Department will award the Contract to the lowest responsible Bidder whose bid conforms in all respects to the requirements set forth in the Contract. The Department will award the Contract based on the Total Contract Price. The Department will award the Contract or reject all bids within 30 State Business Days after the bids are received. The Department may conditionally award the Contract pending the approval of the Federal Government, another State governmental body, or private party. If the Department does not award the Contract or conditionally award the Contract within 30 State Business Days, all Bidders have the right to withdraw their bids. However, the Department, with the agreement of the lowest responsible Bidder, the second lowest responsible Bidder, or both Bidders, may extend the time that the Department may make an Award or Conditional Award by mutual consent.

At the time of Award or Conditional Award, if the Bidder is not a resident of the State, such Bidder shall appoint, on the form provided by the Department, a proper agent located in the State on whom service of process can be made in the event of litigation of any type arising under the Contract or as a result of performance of the Contract. Said agency shall remain in effect during the performance of the Contract and for 6 years following Acceptance.

The Award or Conditional Award is not binding upon the Department until the Department has executed the Contract. No person shall perform any Work in furtherance of the Contract until notified that the Contract has been executed, and then only as specified in 108.02.

The term “State Business Day” as used in this Subsection is synonymous with the term “Working Day” as used in N.J.S.A. 27:7-31 and N.J.S.A. 27:7-33 and is any day exclusive of Saturdays, Sundays, State recognized legal holidays, and such other holidays or State office closings as declared by the State.

103.02 Cancellation of Award   

The Department reserves the right to cancel an Award or Conditional Award at any time before the execution of said Contract by all parties without incurring any liability of any kind.

103.03 Release of Proposal Bond   

The Department will release all Proposal Bonds except those of the 2 lowest Bidders within 5 days after opening of bids.

The Department will release the Proposal Bond of the lowest and next lowest Bidders when the Contract and performance bond and payment bond have been executed and delivered as specified in 103.04, or, if not executed, when other disposition of the matter has been made by the Department.

103.04 Execution of the Contract  

Within 14 days of the date of Award or Conditional Award, the Bidder shall properly and duly execute the Contract and deliver to the Department the following:

1. If escrowing bid documents, the custody agreement as specified in 103.05.
2. Performance bond and payment bond as specified in 151.03.01.
3. Request for Authorization Form for the New Jersey Pollutant Discharge Elimination System 5G3 – Construction Activity Stormwater General Permit (NJG0088323) when required as shown on the Plans.
4. Proof of the registrations specified in 102.01 for the Department of Treasury and the Department of Labor.
5. For wholly State funded projects, all completed Certification/ Disclosure Forms for compliance with N.J.S.A. 19:44A-20.13, et seq.
6. If the case of non-resident Bidders, the completed form regarding “Appointment of Agent” for compliance with N.J.S.A. 14A:15-2, et seq.

If the Contract is not executed by the Department within 60 days following receipt from the successful Bidder of the signed Contract and the performance bond and payment bond, the successful Bidder may withdraw its bid without penalty. Where the Bidder chooses not to withdraw its bid before the Department executes the Contract, the Bidder shall be deemed to have waived any claim for additional payment or for an extension of time. The Contract does not become effective until it has been fully executed by all parties.

103.05 Escrow of Bid Documents  

1. Purpose. The bid documents are the supporting information, calculations, quotes, and other information used to prepare the bid. The Department may use the Contractor's bid documents to negotiate changes and claims if they are escrowed and a signed custody agreement is provided. The information contained in the bid documents does not modify the terms and conditions of the Contract. If the Contractor fails to escrow bid documents within the time specified in 103.04, the Department will not make payment for a disproportionate allocation of costs for work for which no Item is provided in the Contract, as specified in 102.08, in the renegotiation of costs of Items when there is a major decrease in quantity as specified in 104.03.03.
   


2. Stipulations and Acknowledgements. Escrowed bid documents are the property of the Contractor and are not public records. If a third party requests a copy of the escrowed bid documents, the Contractor, and not the Department, must take the legal steps needed to defend the confidentiality of the escrowed bid.
   


3. Form and Contents. The Department will consider escrowed bid documents reliable only if information is provided for all Items, and the total cost shown in the bid documents for each Item equals the bid price for the Item.
   
   The Contractor may submit escrowed bid documents in its usual cost-estimating format. It is not the intent of the Department to cause the Contractor to expend additional effort in preparing its bid.
   


4. Custody. Escrow bid documents in sealed boxes with a custody agent, and provide a copy of the fully executed custody agreement provided by the Department. Include with the custody agreement a certification that the escrowed bid documents have not been modified, corrected, or otherwise revised in any manner after the opening of bids.

The Department may access the escrowed bid documents with the Contractor's written authorization.

After Acceptance and upon request from the Contractor, the Department will provide a release for the bid documents provided that there are no pending claims.

103.06 Failure to Execute Contract  

Failure on the part of the Bidder, to whom the Contract has been awarded, to execute the Contract as specified in 103.04, in the manner and within the time specified, is just cause for annulment of the Award or Conditional Award and for the exclusion of the Bidder from bidding on subsequent projects for such period as the Department deems appropriate. If the Award is annulled, the Proposal Bond, as specified in 102.09, is forfeited, and the Department has the right to recover under the terms and provisions of the Proposal Bond. The Department has the right to award the Contract to the next lowest responsible Bidder, or to readvertise and construct the Work under the Contract, or otherwise, as the Department decides in its sole discretion.

The successful Bidder may file with the Department a written notice, signed by the Bidder or the Bidder's authorized representative, stating that the Bidder refuses to execute the Contract. The filing of such notice has the same force and effect as the failure of the Bidder to execute the Contract and furnish a performance bond and payment bond within the time specified in 103.04.

103.07 Acquisition of Documents  

After the Award, additional sets of the Plans or additional copies of the Special Provisions are available to subscribers through the Department's website or upon request to the Department's Engineering Documents Unit, at a charge according to the Department rate.

Section 104 – Scope of Work

104.01 Intent   

The intent of the Contract is for the Contractor to construct the Work to be functionally complete and aesthetically acceptable. Perform work that may be reasonably inferred from the Contract as being required to produce the intended result under the Items of the Contract. Perform the Work using the best construction practices and provide materials and workmanship of the first quality to meet the Contract requirements.

Perform the Work to ensure the least possible obstruction to traffic, while adhering to the highest safety standards, and with the least inconvenience to local residents and the general public.

104.02 Value Engineering  

104.02.01 Purpose and Scope

The intent of value engineering (VE) is to promote Contractor innovation, for which the Department will share with the Contractor 50 percent of the value of cost savings generated as a result of a Department approved VE proposal.

The Department will only consider VE proposals that produce a cost savings to the Department without, in the sole judgment of the Department, impairing essential functions or characteristics of the Project. Essential functions that cannot be adversely impacted include, but are not limited to, safety, service life, economy of operation, ease of maintenance, environmental compliance, and desired appearance. The Department will not consider VE proposals that change the Project's original design criteria; merely eliminate work; are based on an unknown factor; do not show a cost savings; or extend Contract Time.

104.02.02 Conditions

The Department will consider VE proposals only after Award of the Contract and only in accordance with the following terms and conditions:

1. In the event that the Department rejects a VE proposal during any step of the process, the Contractor is required to complete the Work as specified in the Contract. The Contractor recognizes that the Department has the right to reject VE proposals and cannot base its bid on the anticipated approval of a VE proposal.
2. All VE proposals, approved or not approved by the Department for use in the Contract, apply only to the ongoing Contract or Contracts referenced in the VE proposal. The VE proposals shall become the property of the Department and shall contain no restrictions imposed by the Contractor on their use or disclosure. The Department will have the right to use, duplicate, and disclose in whole or in part any data necessary to use the VE proposal. The Department retains the right to use any accepted VE proposal or part thereof on any other or subsequent project without any obligation to the Contractor. This provision is not intended to deny rights provided by law with respect to patented materials or processes.
3. If the Department already has under consideration certain revisions to the Contract that are subsequently incorporated in a VE proposal, the Department will reject the Contractor's VE proposal and has the right to proceed with such revisions without obligation to the Contractor.
4. The RE will determine whether a VE proposal qualifies for consideration and evaluation by the Department, including whether the savings generated by the VE proposal are sufficient to warrant review and processing. The Department may still reject a final VE proposal after approval of the initial VE proposal.
5. The RE has the right to reject all or any portion of work performed according to an approved VE proposal if the RE determines that results do not meet the requirements of the VE proposal or the Contract. The RE has the right to direct the removal of such rejected work and require the Contractor to proceed according to the original Contract. If the Contractor is directed to proceed according to the original Contract, the Department will not make payment for the rejected work performed under the VE proposal, or for its removal. The Contractor is responsible for the consequential costs arising from the rejected work to complete the work as proposed under the original Contract, including the cost to Others.
6. The Contractor may only submit VE proposals based on Items scheduled to be performed by the Contractor. The Department will not consider anticipated cost savings based on revisions to utility relocations or other work to be performed by Others. The Contractor is responsible to obtain the concurrence of Utilities, property owners, governing bodies, and agencies for any work affected by the VE proposal. The Department has the right to reject VE proposals that may increase the time or cost of work done by Others.
7. In calculating the value of cost savings, the Department has the right to disregard the Contract bid prices, if such prices do not represent the value of the work to be performed or to be deleted, and has the right to calculate the savings based on reasonable costs for such work.
8. Ensure that VE proposals are designed according to the Department design manuals and other Department standards for the proposed work.
9. If additional information is needed to evaluate VE proposals, provide this information in the Department specified time period, otherwise the Department will reject the VE proposal. Additional information may include, where design changes are proposed, results of field investigations and surveys, design computations, and field change sheets.
10. The Department will not deduct the Department's costs for review and processing of the VE proposal from the cost savings.
11. The Department will not make payment for the Contractor's costs for development and submission of the VE proposal. The Contractor waives its right to claim for costs or delays incurred due to the Department's review or rejection of a VE proposal. These costs include, but are not limited to, development costs, loss of anticipated profits, or increased material or labor costs resulting from delays in the review of such VE proposal.
12. The Department will not use the value of cost savings for: additional vehicle operating and delay costs incurred by the traveling public, compared to normal operating conditions, resulting from the establishment of construction, maintenance, or rehabilitation work zones (road user costs), or for costs to oversee the Project (construction engineering costs).
13. The Contractor may submit VE proposals for an approved Subcontractor, provided that payment is made by the Department to the Contractor and that the terms of the payment to the Subcontractor are satisfactorily negotiated and accepted before the proposal is submitted to the Department. Submit revised agreements as specified in 108.01.1. Subcontractors may only submit a VE proposal through the Contractor.

104.02.03 Submittals

The Contractor may submit VE proposals electronically. With electronic submissions, submit the appropriate attachments and a printed copy.

If the initial VE proposal is only submitted in printed form, provide at least 3 sets of documents. If the final VE proposal is only submitted in printed form, the Department will designate the required number of sets of documents.

Submit initial and final VE proposals as follows:

1. Initial VE Proposal. Submit to the RE an initial VE proposal outlining the general technical concepts associated with the VE proposal and the estimated savings that will result.
   
   The Department will review the initial VE proposal and, if found to be conceptually acceptable, will grant approval to submit a final VE proposal. A finding of conceptual acceptability of the initial proposal in no way obligates the Department to approve the final VE proposal.
   
   
2. Final VE Proposal. The Department will consider a final VE proposal only after the approval of the initial VE proposal. With each final VE proposal, submit, at a minimum, to the RE the following information:
1. A statement that the final VE proposal is submitted as a VE proposal with a reference to the approval of the initial VE proposal.
2. A description of the differences between the existing Contract requirements and the proposed change, and the comparative advantages and disadvantages of each. Document the effects on safety, service life, economy of operations, ease of maintenance, environmental requirements, and desired appearance.
3. Complete plans, specifications, and calculations showing the proposed changes relative to the original Contract features and requirements. Ensure that plans and engineering calculations are signed and sealed by a Professional Engineer.
4. A complete cost analysis indicating the final estimated costs and quantities to be replaced by the VE proposal, the new costs and quantities generated by the final VE proposal, and the cost effects of the proposed changes on operational, maintenance, and other considerations.
5. An evaluation of the effect the final VE proposal has on Contract Time, including a revised schedule and a time impact evaluation as specified in 108.11.01.C.
6. A description of any previous use or testing of the final VE proposal on another Department project or elsewhere and the conditions and results. If the final VE proposal was previously submitted on another Department project, indicate the date, the project, and the action taken by the Department.
7. A letter of concurrence to the VE proposal from Others that are affected.
8. The specific date that the Change Order adopting the final VE proposal must be executed to obtain the maximum cost reduction. Ensure that this date allows the Department ample time, usually a minimum of 60 days, for review and processing a Change Order. If the Department finds that there is insufficient time available for review and processing, it has the right to reject the final VE proposal solely on such basis. If the Department fails to respond to the final VE proposal by the date specified, the Contractor shall consider the final VE proposal rejected and shall make no claim against the Department as a result thereof.
9. Additional information requested by the Department.

104.02.04 Final Documents

If the final VE proposal is approved, submit working drawings for approval. The Department will designate the number of sets to be submitted.

104.02.05 Payment

If the VE proposal is approved, the Department will issue a Change Order incorporating the VE proposal and establishing payment for the cost savings.

The Department will make payment to the Contractor for 50 percent of the cost savings from the VE proposal. It is understood that the payment includes all costs resulting as a consequence of the change, including but not limited to quantity increases to Items, and unanticipated work or expenses arising out of the change.

104.03 Changes to the Contract   

104.03.01 Authority to Make Changes

The Department has the right to make changes to the Work at any time, including altering the Contract, altering the requirements of an Item, increasing or decreasing the quantities of any Item, or deleting any Item. Such changes neither invalidate the Contract, nor release the Surety. The Contractor agrees to perform the Work as changed.

The Contractor may request changes to the Contract.

The Department will direct changes using a written Field Order or Change Order as follows:

1. Field Orders. The RE has the right to unilaterally direct Contractor performance with a written Field Order. Upon receipt of a Field Order, proceed as directed by the Field Order. A Field Order will state whether the directions provided by the Field Order are eligible for payment or modification of Contract Time. The Department will provide such payment or modification to Contract Time in a subsequent Change Order.
   
   
2. Change Orders. The Department will modify the Contract with a Change Order.

The Department has the right to unilaterally make the following changes: make minor increases or decreases in quantity; modify Contract Time as specified in 108.11; direct New Work to be performed on a force account basis; and establish payment modifications for damages, credits, bonuses, and penalties provided for in the Contract.

For changes that require the Contractor's assent, the RE will negotiate the terms of the change and the Department will offer a Change Order. If the Contractor accepts the offer, the Contractor will sign the Change Order, whereupon the Department may approve and issue the Change Order. By signing a Change Order, the Contractor agrees that the Change Order constitutes the full extent of the agreement between the Department and the Contractor, including the full extent of payment and modified Contract Time for the work and for any effects upon all and any part of the Work, and supersedes any prior written or oral agreement between the parties. Additionally, the Contractor acknowledges the sufficiency and propriety of the consideration for the work detailed in the Change Order, and understands that the agreement is binding.

Upon receipt of an approved Change Order, proceed as directed by the Change Order.

Do not deviate from the requirements of the Contract unless and until a Field Order is issued by the RE or a Change Order is approved by the Department.

Notwithstanding the issuance of a Field Order or Change Order, do not expend or cause to be expended any sum in excess of the Contract's current authorized funding amount. The Department will notify the Contractor when the authorized funding amount for the Contract has been modified. Any expenditure by the Contractor that exceeds the Contract's authorized funding amount is at the Contractor's risk and the Contractor waives any right to recover from the Department any sum in excess of the amount appropriated.

104.03.02 Protests to Change Orders

If the Contractor disagrees with any terms or conditions set forth in a Change Order, submit a written protest to the Department within 15 days after the date of receipt of the Change Order.

A protest is notice that the terms and conditions for proposed work are not in accordance with the Contract, quantity adjustments are incorrect, or that the modification for Contract Time is incorrect. A protest is not a substitute for notice as specified in 104.03.04. Providing a protest within 15 days after the date of the receipt of a Change Order may not meet the requirements of 104.03.04 or N.J.S.A. 59:13-5 and the Department will not make payment for the costs of a claim if recovery is barred by other provisions in the Contract.

In the protest, list the points of disagreement, and, if possible, the specification references, quantities, and costs involved. Ensure that the protest is a specific, detailed statement of the points of disagreement. The Department will reject general protests. If the Department rejects a protest for being a general protest, provide a specific, detailed statement within 7 days of such rejection.

If an acceptable written protest is not submitted within 15 days after the date of receipt of the Change Order or within 7 days of the initial rejection, the Department will make payment and modify Contract Time as set forth in the Change Order. Such payment is full payment for all work included or required by the Change Order and is conclusive as to any Contract Time modifications provided for therein or in establishing that no Contract Time modification was warranted.

For Change Orders that require the Contractor's assent, if the Department processes the Change Order within 15 days of receiving the Contractor's signature, the Contractor is barred from protesting the approved Change Order.

Protest does not relieve the Contractor from the obligation to proceed with work directed by an approved Change Order.

104.03.03 Types of Changes

The Department will address all changes under one or a combination of the following types:

1. Quantity Increases and Decreases. The Department has the right to increase or decrease the quantities of work to be performed. If the quantity of an Item is cumulatively increased or decreased by 25 percent or less from the Proposal quantity, the Department will consider the quantity adjustment to be a minor change in quantity. If the quantity of an Item is cumulatively increased or decreased by more than 25 percent from the Proposal quantity, the Department will consider the quantity adjustment a major change in quantity. For the purpose of this subsection, the term “Proposal quantity” is the quantity indicated in the Proposal less the quantities designated on the Plans as “if and where directed.”
   
   For minor changes in quantity, the Department will make payment for the quantity of the Item performed at the bid price for the Item.
   
   For major increases in quantity, the Department or the Contractor may request to renegotiate the price for the quantity in excess of 125 percent of the Proposal quantity. For Items that are measured by Unit, the Department will not renegotiate a price for a fraction of a Unit, rather a Unit is eligible for renegotiation if it causes the quantity to be in excess of 125 percent of the Proposal quantity. If a mutual agreement cannot be reached on a renegotiated price, the Department will make payment by force account as specified in 104.03.08.
   
   For major decreases in quantity, the Department or the Contractor may request to renegotiate the price for the quantity of work performed. If a mutual agreement cannot be reached on a renegotiated price, the Department will make payment by force account as specified in 104.03.08. However, the Department will not make payment in an amount that exceeds 75 percent of the value of the bid price multiplied by the Proposal quantity.
   
   The Department will consider making payment for costs attributed to a disproportionate allocation of costs for work for which no Item is provided in the Contract if the Contractor has escrowed its bid documents as specified in 103.05. The Department will not make payment for lost anticipated profits.
   
   If the cost (C) is less than $5000, the Department will not make a modification, and will make payment for the quantity of the Item performed at the bid price. Calculate C as follows:
   



C = Q × (PB – PR) Where: C = Cost. PB = Bid price. PR = Renegotiated price. Q = Quantity of work performed at the renegotiated price.


If a change results in a major change in quantity and results in a renegotiated price for the quantity in excess of 125 percent from the Proposal quantity, the RE will determine the locations of which work is to be performed at the renegotiated price and which locations of work is performed at the bid price. For subsequent increases in quantities, perform the work at the renegotiated price. However, if the quantities of subsequent increases exceed 25 percent of the Proposal quantity and 25 percent of the adjusted quantity for the Item at the renegotiated price, either party may request to re-renegotiate the price for the excess quantity. When the locations of the work to be performed at a renegotiated price are established, subsequent decreases in quantities of work at the bid price will not affect the quantity of work at the renegotiated price.

Deleted work is work deleted from the Contract by decreasing the quantity of an Item, except the provisions for deleted work do not apply to quantities designated as “if and where directed.”

If the Department deletes work from the Contract, immediately cancel orders for materials for that Item. If the Contractor has ordered acceptable material for work deleted from the Contract before the date the RE notified the Contractor that the work was deleted and the material cannot be returned to the vendor, the Department will make payment based on the cost of the material, as evidenced by paid invoices. In that event, the Department becomes the owner of the material, and the Contractor will deliver the material to a location as directed by the RE. The Department will only make payment for material that meets the requirements of the Contract.

If the Contractor has ordered acceptable material for work deleted from the Contract before the date the RE notified the Contractor that the work was deleted, the material is returnable to the vendor, and the RE directs the material be returned, the Contractor shall return the material. The Department will make payment for actual vendor charges for returning and restocking the material.

For deleted work, the Department will make payment for material costs and vendor restocking charges as specified in 104.03.08; except that the Department will not apply profit, and the total payment may not exceed the bid price multiplied by the deleted quantity. If the Department directs the material to be delivered to a designated location, the Department will make payment for the associated handling and delivery costs. If a price for these handling and delivery costs cannot be agreed upon, the Department will make payment by force account as specified in 104.03.08.

When the entire quantity of an Item is designated “if and where directed,” and is increased by more than 100 percent of the Proposal quantity, the Department or the Contractor may request to renegotiate payment for the quantity in excess of 200 percent of the Proposal quantity. If a mutual agreement for a renegotiated price cannot be achieved, the Department will make payment by force account as specified in 104.03.08.

When the entire quantity of an Item is designated “if and where directed,” and is decreased by any amount, the Department will make payment for work performed at the rate of the bid price. When the entire quantity of an Item is designated “if and where directed,” and is deleted, the Department will not make a modification, and will not make payment for the quantity of the Item performed at the bid price.


2. New Work. When requested by the RE, submit to the RE a detailed cost proposal for performance of New Work. If a price for a New Work cannot be mutually agreed upon, the Department will make payment by force account as specified in 104.03.08.
   
   
3. Changes in the Character of Work. A change in the character of work is a change that causes the work to substantially differ in kind or nature from the original proposed construction. The Department may make payment for a change in the character of work whether the change directly causes a change in the character of the work or causes other work to become significantly different in character. Efficiencies or inefficiencies resulting from minor increases or decreases in quantities of work are not a change in the character of work. If a change in the character of the work results in a decreased cost to perform the work, the RE will revise the price to reflect this reduced cost.
   
   For changes in the character of work, the Department will base the modification on the difference between what the actual cost to perform the work of the Item or portion thereof involved would have been if there were no change, and the actual cost of performing the work or portion of work as changed. The modification shall only apply to the portion of the work for an Item actually affected by the change.
   
   If a modification cannot be reached by agreement, the Department will make payment by force account as specified in 104.03.08.
   
   Specific changes in character of work have the following requirements:
   
   
   
   1. Differing Site Condition. A condition is considered to be a Type 1 Differing Site Condition when a subsurface or latent physical condition at the site differs materially from those specified in the Contract. A condition is considered to be a Type 2 Differing Site Condition when unusual conditions are encountered that differ materially from those ordinarily encountered or is generally recognized as inherent in the work that could not have been reasonably anticipated from the pre-bid examination as specified in 102.04 or from the preparation of the bid as specified in 102.07.
      
      The Department will make payment for increased costs resulting from a Type 1 or Type 2 Differing Site Condition as a change in the character of work; however, the Department will not consider making payment for a differing site condition unless the resulting change in cost exceeds $7,500. Except, if the Contractor incurs cost as the result of multiple differing site conditions, with the cost of each separate differing site condition having a value of at least $1,500 but not more than $7,500, the Department will consider making payment for such costs if the aggregate cost of the multiple differing site conditions exceeds $7,500. If the change in cost exceeds these amounts, the Department will base the modification on the total cost of the change, and the Department will not deduct the threshold amount of $7,500 from the cost of the change.
      
   
   
   2. Constructive Acceleration. The Department will make payment for costs resulting from constructive acceleration as a change in the character of work if there was an excusable compensable delay for which the Department improperly rejected the Contractor's notice requesting an extension of Contract Time, and for which the Contractor incurred additional costs. Payment for constructive acceleration may not exceed the cost of liquidated damages saved by the actions of constructive acceleration. The Department will not make payment for claims for constructive acceleration if the Contractor fails to have an approved progress schedule as specified in 153.03.
      
      Before constructively accelerating, provide the RE with a plan detailing the methods and activities of the constructive acceleration. Include how the plan accelerates the Work relative to the current approved progress schedule. Do not deviate from the submitted plan without providing the RE with a revised plan.
      
      
   3. Inefficiencies. If the source of the loss of productivity cannot be isolated and priced separately, the Department will consider making payment for inefficiency costs based on a Measured Mile analysis comparing the productivity of work impacted by a change to the productivity of similar work under unimpacted conditions.If the source of the inefficiency is working out of the scheduled sequence, use the current approved progress schedule to show that the work was performed out-of-sequence.
      
   
   
   4. Delays. The Department will modify Contract Time as specified in 108.11. The Department will make payment for delay damages resulting from excusable, compensable delays as specified in 104.03.09.
      

104.03.04 Contractual Notice

It is the responsibility of all parties to promptly provide written notice to the other party when circumstances are believed to constitute a change to the Contract.

Immediately provide written notice to the RE of a circumstance that is believed to be a change to the Contract. If notice is not provided on Contractual Notice (Form DC-161), include the following in the initial written notice:

1. A statement that this is a notice of a change.
2. The date when the circumstances believed to be a change were discovered.
3. A detailed and specific statement describing the nature and circumstances of the change.
4. If the change will or could affect costs to the Department.
5. If the change will or could affect Contract Time as specified in 108.11.01.C.

In addition to the hard copy of the notice, email the notice to the RE. It is not necessary to attach listed documents to the email.

The Department will not modify the Contract for work performed or for expenses incurred due to a change before the date notification is provided to the RE. The Contractor waives its right to file a claim for costs incurred before providing notice to the RE.

Following submission of written notice, diligently continue with the unaffected work to the maximum extent possible. If a Type 1 or Type 2 Differing Site Condition is encountered, do not disturb the existing site condition until directed by the RE.

Within 5 days after receipt of each written notice, the RE will respond in writing with one of the following:

1. Reject the notice for providing insufficient information. The Department will not accept general notices. The RE may request resubmission of the notice with additional information. If the Department rejects the written notice for insufficient information, the Department will deem the Contractor to have not provided notice even if the RE issues directions based on the information provided.
2. Reject the notice because the Contractor failed to submit the notice within the specified time frames of N.J.S.A. 59:13-5, or 104.03.02.
3. Acknowledge that notice has been provided, and state that the Department has not determined whether the circumstances constitute a change that may be eligible for additional payment or time or both. If necessary, the RE may direct the mode of further performance. The RE may require the Contractor to submit additional information within a specified time period.
4. Acknowledge that notice has been provided, and confirm that the circumstances constitute a change that may be eligible for additional payment or time or both. If necessary, the RE may direct the mode of further performance. The RE may require the Contractor to submit additional information within a specified time period.

104.03.05 Unrecoverable Costs

For all changes, the Department will not make payment or modify Contract Time for the following:

1. Loss of anticipated profits.
2. Consequential damages.
3. Expense related to claim preparation and submission, including but not limited to attorney's fees and expenses, consultant's fees and expenses, and litigation expenses.
4. Interest.
5. Reimbursement for home office overhead in excess of that provided by the Contract.

104.03.06 Unacceptable Cost Calculation Methods

The Contractor has the burden of substantially proving entitlement to and quantifying its costs. The Department will not make payment for costs calculated using the following methods:

1. Total Cost Method. Method based on calculating costs as the difference between the Contractor's bid for the Work from the Contractor's calculation of costs for the Work.
2. Modified Total Cost Method. Method based on calculating damages as the difference between the Contractor's bid for a portion of the Work and the Contractor's calculation of cost for that portion of the Work.
3. Productivity Factors. Costs for inefficiency based on industry productivity factors such as those provided by the Mechanical Contractors Association of America (MCAA) Factors Affecting Labor Productivity.
4. Eichleay Formula. Eichleay and other formulas or approaches to calculating home office overhead costs due to delay other than as specified in 104.03.08.

104.03.07 Tracking Costs

For all work directed to be paid for by force account, and for all costs for which the Contractor will pursue reimbursement through a claim, track and maintain complete records to provide a clear distinction between the costs for that work and the costs of other operations. On a daily basis, submit for review by the RE a daily work report for the work involved in the force account or claim, signed by the Contractor's authorized representative. For days with multiple shifts of work, submit a separate report at the completion of each shift. Provide the following in the daily or shift work report:

1. For labor, provide the name, classification, date, daily hours, and whether the hours are straight time or overtime for each worker and foreperson.
2. For equipment, provide the description, dates, daily hours worked, daily hours idle, and whether each unit of equipment or component thereof is rented or Contractor-owned.
3. For materials, provide the description, quantities delivered and placed, and whether the materials were for temporary use or permanent construction.
4. Indicate the description of work associated with the force account or claim performed for that day or shift.

If there are separate instances of work being tracked, provide separate daily or shift reports for each instance.

Submit in writing to the RE for review before using special equipment, materials, or labor. The Department will not make payment for costs that the Contractor fails to document as required in the daily work report.

104.03.08 Force Account

Payment made for the work directed to be performed by force account represents full payment for that work. Upon request, submit to the RE a detailed cost estimate of the work to be paid by force account using the electronic format provided by the Department. Submit daily or shift reports for force account costs as specified in 104.03.07. For work directed to be paid for by force account, and when approved by the RE in the daily or shift reports, the Department will make payment for the following:

1. Direct Labor. The Department will make payment for all necessary direct labor and the supervising foreperson of the specific operation, whether the employer is the Contractor, or subcontractor, based on the gross rate of wage paid to the employee as shown in its certified payrolls for each and every hour that said labor and foreperson are actively engaged in such work.
   
   For specific extraordinary operations, the Department may allow supervising or other special types of employees, which would usually be considered as overhead, to be considered direct labor, but only for that time allowed by the RE. Submit justification in writing for the RE's approval before using such employees.
   
   
2. Labor Fringe Benefits. The Department will make payment for the cost of benefits paid by the Contractor on direct labor costs allowed under 104.03.08.1, to or on behalf of, workers when required by collective bargaining agreements or other employment contracts generally applicable to the classes of labor employed on the work.
   
   
3. Indirect Labor Costs. The Department will make payment for the cost of FICA, Workers Compensation Insurance, Federal and State unemployment insurance and other payroll taxes paid by the Contractor on direct labor costs allowed under 104.03.08.1.
   
   
4. Insurance. The Department will make payment for the actual increased cost of insurance, necessarily and directly resulting from the force account work, as evidenced by certified documentation of insurance rates and premiums.
   
   
5. Materials. The Department will make payment for the cost of materials and shipping charges as evidenced by paid invoices, except as follows:
   
   
   1. If a cash or trade discount is offered by the actual supplier or available to the purchaser, credit the Department notwithstanding the fact that such discount may not have been taken.
   2. If materials are procured by the purchaser by any method that is not a direct purchase from and a direct billing by the actual supplier to such purchaser, the cost of such materials is the price paid to the actual supplier as determined by the RE, plus the costs, if any, incurred in the handling of such materials.
   3. If in the opinion of the RE the cost of such materials is excessive, then the Department will limit the cost of such materials to the prevailing market price for such materials as are available in the quantities concerned, delivered to the Project Limits, and deducting any discounts as specified in 104.03.08.5.1.
   4. For materials not incorporated into the permanent construction, the Department will deduct the reasonable salvage value of the material after the performance of the work.
   
   The Department will only allow sales tax on materials that are not permanent and do not qualify for an exemption under the Sales and Use Tax Act.
   
   The Department reserves the right to furnish materials, and the Department will not make payment for costs and markup on such materials.
   
   
6. Extraordinary Expenses. The Department will make payment for permit and disposal fees, if approved before incurring the cost and evidenced by paid invoices. If the cost is, in the opinion of the RE, excessive, then the Department will limit the payment for such expenses to reasonable costs as available in the prevailing market.
   
   
7. Equipment. The Department will make payment for Contractor-owned or rented equipment required for the force account work. The Department will not provide payment for equipment that is determined to be unsuitable by the RE for the force account work or that is inoperable due to breakdown or during periods of repair. In the event the Contractor proposes to use equipment of a higher cost than that suitable for the work, the Department will make payment at the rate applicable to the suitable equipment. The Department will make payment for Contractor-owned or rented equipment as follows:
   
   
   1. Contractor-Owned Equipment. For equipment owned directly by the Contractor or by entities that are divisions, affiliates, subsidiaries, or in any other way related to the Contractor or its parent company, submit in writing to the RE for approval the type of equipment and proposed cost before starting the work. The Department will make payment for equipment rental, operating, and idle time costs based on the calculated cost. The Department will determine the calculated cost using the Rental Rate Blue Book (Blue Book), published by Equipment Watch, as follows:
      
      
      1. The Department will calculate the “rental” hourly rates by dividing the monthly rate by 176. The Department will not use weekly, daily, or hourly rates. The Department will apply rental hourly rates for every hour the equipment is in active use, except that for any 30-day period, the Department will limit the total amount paid for each piece of equipment to a maximum of the monthly rate.
      2. The Department will apply the operating cost rate for every hour the equipment is active.
      3. The Department will apply the rental and operating rates that are current on the first day that the equipment is in use for the force account work throughout the next 6 months that the force account is in progress. The Department will apply updated rates for every following 6 month period the force account is in progress. Submit to the RE documentation establishing the Blue Book rates for the equipment proposed and the age of the equipment. The Department will adjust rates for each 6-month period thereafter.
      4. The Department will not permit area adjustments. The Department will adjust rental rates for equipment age adjustments according to the rate adjustment tables.
      5. The Department will not make payment for idle time for equipment required for only portions of the force account work, except where the equipment has been held on the work site on a standby basis at the request of the RE and, but for this request, would have left the work site. Portions of the work include hours when the equipment is inactive within a working day. For the idle time for each piece of equipment, the Department will make payment at one-half the rate established as specified in 104.03.08.7.a.1. Idle time is limited to the Contractor's normal working hours. Idle time is further limited to a maximum of eight hours a day and a maximum of 176 hours in a 30-day period.
      6. The Department will make payment for costs for transporting equipment to and from the work site, if said costs are solely required as a direct result of the Force Account activity.
      
      The payment established is full payment for all equipment costs, including the cost of fuel, repairs, maintenance, depreciation, storage and incidentals.
      
      If a rate is not established in the Blue Book for a particular piece of equipment, the RE will establish a rate for that piece of equipment that is consistent with its cost and use in the industry.
      
      
   2. Rented Equipment. In the event that the Contractor does not own a specific type of equipment and must obtain it by rental, submit in writing to the RE for approval the need to rent the equipment and the rental rate for that equipment before using it on the work. The Department will make payment for the rental of the equipment as specified in the rental agreements and as evidenced by paid invoices for the time that the equipment is used to accomplish the work, plus the cost of moving the equipment to, on, and away from the work site.
   
   
8. The Department will make payment for profit at the rate of 10 percent applied on the following:
   
   
   1. Total direct labor cost as specified in 104.03.08.1.
   2. Total labor fringe benefit costs as specified in 104.03.08.2.
   3. Total material cost as specified in 104.03.08.5 excluding transportation, shipping, handling, and taxes.
   
   
9. Overhead. The Department will make payment for overhead at the rate of 15 percent applied on the following:
   
   
   1. Total direct labor cost as specified in 104.03.08.1, except for the direct labor cost of any extraordinary supervisory or special employees.
   2. Total labor fringe benefit costs as specified in 104.03.08.2.
   3. Total material cost as specified in 104.03.08.5 excluding transportation, shipping, handling, and taxes.
   
   The above 15 percent allowance is full compensation for the Contractor's field and home office overhead including, but not limited to, the following:
   
   
   1. Salaries and expenses of executive officers, supervising officers, or supervising employees, except as provided for specific extraordinary operations under 104.03.08.1.
   2. Salaries and expenses of clerical and administrative employees.
   3. Charges for minor equipment, such as small tools, including shovels, picks, axes, saws, bars, sledges, lanterns, jacks, cables, pails, wrenches, and other miscellaneous supplies and services; and equipment consumed during operations, such as saw blades, drill bits, and milling teeth.
   4. Costs for preparing documents and records, including reproduction and mailing costs.
   
   
10. Subcontractors. The Department will make payment for work performed by subcontractors in the same manner as for the Contractor as specified in 104.03.08.
    
    The Department will make payment for markup on subcontracted work at the rate of 5 percent applied on the total amount of all costs for subcontracted force account work up to $500,000 and 2% applied on the total amount of all costs for subcontracted force account work over $500,000.

104.03.09 Delay Damages

If the Department grants an extension of Contract Time for excusable, compensable delays, as specified in 108.11.01, beyond the completion time requirements specified in 108.10, the Department will make payment for the following:

1. Non-Productive Activity. The Department will make payment for the following non-productive activities:
   Submit inquiries regarding discrepancies, errors, or omissions, or concerns regarding the intent or meaning of the Contract to the Department as follows: Before Award of Contract. Submit inquiries and/or view other questions/answers by following the format prescribed on the project’s electronic bidding web page. The deadline for submitting inquiries is 12:00 noon, 5 days before the opening of bids. The Department will investigate the information provided in the inquiry and, if the Department determines that a change or response is necessary, the Department will issue an addendum. Requests for postponement of bids will not receive a response. The Department will issue an addendum postponing bids if warranted. After Award of Contract. Submit inquiries to the RE through the office specified in the Special Provisions.
   
   1. Direct Labor. For all necessary non-productive labor and supervising forepersons of specific operations who must remain on the Project during such periods of delay due to collective bargaining contracts or other reasons approved by the RE and cannot be assigned to other work not affected, the Department will make payment at the prevailing rate of wage as shown in its certified payrolls. This includes the necessary labor required for maintenance within the Project Limits, maintenance of traffic control devices, maintenance of SESC measures, and similar activities resulting from the delay and approved by the RE. This rate is inclusive of all employee contributions to taxes, insurance, and other benefits.
      
      
   2. Labor Fringe Benefits. The Department will make payment for the costs for benefits paid by the Contractor on direct labor costs allowed under 104.03.09.1.a to or on behalf of, workers when required by collective bargaining agreements or other employment contracts generally applicable to the classes of labor employed on the work.
      
      
   3. Indirect Labor. The Department will make payment for the costs for FICA, Workers Compensation Insurance, Federal and State Unemployment Insurance and other payroll taxes paid by the Contractor on direct labor costs allowed under 104.03.09.1.a.
      
      
   4. Insurance. The Department will make payment for the actual increased cost for insurance, necessarily and directly resulting from the delay, as evidenced by certified insurance rates and premiums.
      
      
   5. Equipment.If as the result of the delay, equipment cannot be used for any active work, and is directed by the RE to remain on the work site during the delay, the Department will make payment as specified in 104.03.08.7.a.5. If as the result of the delay, equipment cannot be used for any active work, and the RE determines that it is not necessary for the equipment to remain on the work site, the Department will make payment for labor and equipment costs to remove the equipment and to return it to the work site at the end of the delay period.
      
      If equipment is required for additional maintenance within the Project Limits, maintenance of traffic control devices, maintenance of SESC measures, and similar activities resulting from the delay and approved by the RE, the Department will make payment as specified in 104.03.08.7.
      
      
   6. Contractor's Field Office. If the Contractor has a field office dedicated for the Project, and if the extension of time is for more than one month, the Department will make payment for the costs to maintain the Contractor's field office, as evidenced by paid invoices. These costs may include property rent or leases, trailer rentals, utility and sanitation services, and fixed monthly telephone services required for a field office directly established for the Project.
      
      
   7. Profit. The Department will not make payment for profit.
      
      
   8. Overhead. The Department will make payment for overhead at a rate of 15 percent of the sum of labor and labor fringe benefits. This is full payment for all field and home office overhead and general superintendence.
   
   
2. Labor Escalation. If, as the result of the delay, an activity, which had a planned late-finish date occurring before a labor rate increase date, is required to start after the labor rate increase date, the Department will make payment for the following:
   
   
   1. Increased Direct Labor. For all necessary non-salaried labor and supervising forepersons of the specific activity, the Department will make payment for the difference between the gross rate of wage paid to the employee as shown in its certified payrolls and the gross rate of wage for the planned period of performance, for each and every hour that the employee was actively engaged in such work.
      
      
   2. Increased Labor Fringe Benefits. The Department will make payment for the increased costs for benefits paid by the Contractor on direct labor costs allowed in 104.03.09.2.a, to, or on behalf of, workers when required by collective bargaining agreements or other employment contracts generally applicable to the classes of labor employed on the work.
      
      
   3. Increased Indirect Labor Costs. The Department will make payment for the costs for FICA, Workers Compensation Insurance, Federal and State Unemployment Insurance, and other payroll taxes paid by the Contractor on increased direct labor costs allowed under 104.03.09.2.a.
      
      
   4. Profit. The Department will make payment for profit at the rate of 10 percent applied on the following:
      
      
      1. Total direct labor cost as specified in 104.03.09.2.a.
      2. Total labor fringe benefit costs as specified in 104.03.09.2.b.
      
      
   5. Overhead. The Department will not make payment for overhead for labor escalation costs. Provide the RE with the following documentation for all labor escalation costs:
      
      
      1. A breakdown of costs by Item, activity, and date detailing the labor classification and hours for each.
      2. For each activity, an analysis demonstrating that the entire activity was forced to be performed when labor costs were higher than the labor rates in effect on the planned late-finish date.
      3. Collective bargaining agreement information detailing the increase in direct wages and fringe benefits.
      
      
3. Material Escalation and Storage. If the delay forces the Contractor to purchase material when material costs are higher than the cost of material would have been for the planned late-finish dates of an activity using the material, or if the Contractor incurs additional storage costs as a result of the delay, provide the RE with the following documentation:
   
   
   1. A breakdown of costs by Item, activity, and date the material cost was incurred.
   2. Cost basis for the material at the time of an activity's late start date as evidenced from documented vendor quotes.
   3. The cost of materials and transportation charges as evidenced by paid invoices.
   4. An analysis demonstrating that the activity or portions of the activity were forced to be performed when material costs were higher than those that were in effect on the planned late-finish date.
   
   For such material escalation and storage, the Department will make payment as follows:
   
   
   1. Increased Material Costs. The Department will make payment for the difference between the costs of materials, as specified in 104.03.08.5, and the cost of such materials that were available for the planned late-start to late-finish dates of an activity using the material. However, the cost of unacceptable material, and cost increases for fuel and asphalt are not eligible for payment. Furthermore, the Department will not make payment for quantities in excess of the amount necessary for construction, except where lesser quantities cannot be economically purchased and the excess has no significant reuse value. If the cost basis of materials is, in the opinion of the RE, excessive, the Department will establish the cost of the materials from market prices.
      
      
   2. Increased Storage Costs. Obtain the RE's approval before storing materials. The Department will make payment for additional storage costs as evidenced by certified vendor quotes detailing the terms of the storage agreement, and paid invoices.
      
      
   3. Profit. The Department will make payment for profit at the rate of 10 percent applied on the following:
      
      
      1. Total increased material costs as specified in 104.03.09.3.a.
      2. Total increased storage costs as specified in 104.03.09.3.b.
      
      
   4. Overhead. The Department will make payment for overhead at the rate of 15 percent applied on the following:
      
      
      1. Total increased material costs as specified in 104.03.09.3.a.
      2. Total increased storage costs as specified in 104.03.09.3.b.

From the total value of delay damages, when the Total Adjusted Contract Price cost is greater than the Total Contract Price, the Department will deduct the amount of 10 percent applied to the difference between the Total Adjusted Contract Price and the Total Contract Price. If this deduction is greater than the total value of delay damages, the Department will not deduct the difference from the Contractor.

Section 105 – Control of Work

105.01 Authority of the Department  

105.01.01 RE

The RE has the authority to direct work and the Contractor has an obligation to proceed as directed. The RE has the authority to reject work that is not in conformance with the Contract and direct its removal and replacement. If the Contractor fails to promptly remove or replace defective work as directed by the RE, the RE has the authority to direct Others to remove or replace the work. The Department has the right to recover costs incurred for such removal and replacement from the Contractor.

Unless otherwise specified, send correspondence with the Department to the RE. Where correspondence is specified to be directed to persons other than the RE, send a copy to the RE. Ensure that correspondence complies with the following:

1. Assign every correspondence sent to the Department a unique correspondence serial number in the subject line, numbered sequentially beginning with Contractor Correspondence No. 1.
2. If the correspondence includes a request for information or asks for an interpretation of the Contract, also assign a unique RFI serial number in the subject line numbered sequentially beginning with RFI-1.
3. If the correspondence constitutes a notice of change as specified in 104.03.04, assign a unique change notice serial number in the subject line numbered sequentially beginning with Change Notice No. 1. For subsequent correspondence referring to a change notice or to the events that are the subject of a previous change notice, refer in the subject line to the original change notice number.

The RE will decide questions that arise concerning the following:

1. Quality and acceptability of the work.
2. Progress of the Work.
3. Interpretation of the Contract.
4. Modifications to the Contract.
5. The percentage for partial payments made in Estimates, as specified in 109.05.

The RE has the authority to suspend the Work wholly or in part and to suspend Estimates, as specified in 109.05, for failure of the Contractor to correct conditions unsafe for the workers or the general public, for failure to carry out provisions of the Contract, or for failure to comply with RE direction. The RE also has the authority to suspend the Work wholly or in part for unsuitable weather, for conditions considered unsuitable for the prosecution of the Work or portion of the Work, or for any other condition or reason deemed to be in the interest of the public.

105.01.02 Inspection

Inspectors employed or contracted by the Department are authorized to inspect work. Inspection may extend to the preparation, fabrication, or manufacture of the materials to be used. The inspector is not authorized to waive the provisions of or modify the Contract. The inspector is not authorized to act as foreman or perform other duties that are the responsibility of the Contractor. The inspector has the authority to reject work subject to confirmation by the RE.

Each part or detail of the Work is subject to inspection by the Department. If the Department determines that work requires special inspection, testing, or approval not specified in the Contract, the Department will perform such inspection, testing, or approval.

If an agency or entity financially participates in the Contract or has jurisdiction over portions of the Work, the agency or entity also has the right to inspect the Work. Such financial participation or inspection does not make an agency or entity a party to the Contract.

Provide safe access for inspection to all parts of the Work. Provide the necessary assistance, including but not limited to traffic control, lighting, and scaffolding in order to allow a complete and detailed inspection. When the Department is within the Project Limits, the Department is an invitee of the Contractor.

At any time before Acceptance, the RE has the right to direct the Contractor to expose specified portions of the finished work. If the exposed work is unacceptable, correct the work and restore the exposed area. Also, if subsequent work prevents inspection of the previous work, the RE has the right to direct the Contractor to remove and replace the subsequent work. The Department will not make payment for exposing, correcting, or restoring work or removing and replacing nonconforming work and any subsequent work that was required to be removed.

The Department will make payment and may modify Contract Time for exposing the work and restoring the area as Extra Work if all of the following conditions are met:

1. The exposed work was acceptable as specified in the Contract.
2. The daily communications, as specified in 108.03, were given to the Department reasonably before the exposed work was originally performed.
3. The work was not covered by subsequent work if the RE directed that such subsequent work not be performed.

The Contractor is responsible for carrying out the provisions of the Contract at all times and for control of the quality of the Work regardless of whether an authorized inspector is present or not. Neither the observations of the RE in the administration of the Contract, nor inspections, tests, or approvals relieve the Contractor from its obligation to perform the Work in accordance with the Contract.

105.02 Responsibilities of the Contractor   

105.02.01 Labor and Equipment

Provide labor and equipment sufficient to prosecute the Work, as specified in the Contract, to Completion. Ensure that the labor and equipment used to prosecute the Work do not cause damage to public or private property. Provide labor and equipment as follows:

1. Labor. Employ workers that have sufficient skill and experience to properly perform the work assigned to them. Do not engage or employ current Department employees or workers that would cause the worker to be in violation of N.J.S.A. 52:13D-17.
   
   Upon written direction by the RE, the Contractor will remove Contractor employees or subcontractor employees who, in the opinion of the RE, are not performing the Work in a proper or skillful manner, or are intemperate, disorderly, or create a hostile environment. Do not allow the removed employee to be re-employed to perform any portion of the Work without written approval by the RE.
   
   
2. Equipment. Provide equipment of sufficient size and mechanical condition to meet the requirements of the Contract. Ensure that each piece of equipment has an automatic audible warning signal when operating in reverse.
   
   
Do not provide equipment that is owned or operated by firms or individuals suspended or debarred by the Department or included in the State of New Jersey Consolidated Debarment Report as maintained by the Department of the Treasury, Division of Building and Construction, Bureau of Contractor Prequalification or in the Federal Government's General Services Administration document titled “List of Parties Excluded from Federal Procurement and Nonprocurement Programs (GSA List).”

Equip construction equipment powered by an internal combustion engine with a properly maintained muffler. Fit air-powered equipment with pneumatic exhaust silencers. Ensure air compressors meet EPA noise emission standards. Do not operate stationary equipment powered by an internal combustion engine within 150 feet of noise sensitive sites without portable noise barriers placed between the equipment and the noise sensitive sites. Noise sensitive sites include but are not limited to residential buildings, motels, hotels, schools, churches, hospitals, nursing homes, libraries, and public recreation areas.

Whenever automatically-controlled equipment is specified and a breakdown or malfunction of the automatic controls occur, the Contractor may operate the equipment manually for the remainder of the day provided such operation produces results that comply with the Contract. Repair or replace the equipment so that it is controlled automatically before starting construction operations the next day.

105.02.02 Superintendent

Provide a competent, English-speaking superintendent and alternate who are experienced in the type of construction being performed and are capable of reading and understanding the Contract.

Ensure that the superintendent and alternate have the authority to represent the Contractor. Ensure that the superintendent and the alternate have the authority to execute orders or direction from the RE, without delay, and to promptly supply materials, equipment, tools, labor, and incidentals as necessary.

Ensure that the superintendent gives the Work the constant attention necessary to ensure its successful prosecution. Ensure that the superintendent cooperates with the RE, the Department inspectors, and Others. Ensure that the superintendent or the alternate is present at the work site at all times while the Work is in progress.

The RE has the right to suspend the Work if the superintendent or the alternate is not present at the work site. The Department will not modify Contract time or make payment for such suspensions.

105.02.03 Subcontracted Work

Consent of the Department to allow work to be subcontracted, as specified in 108.01, does not relieve the Contractor of its responsibility for the Work, nor does it relieve the Surety of its obligations under the bond. The Contractor is responsible for the work of subcontractors. Ensure that the work performed by subcontractors conforms to the Contract. The Department's consent to subcontract any part of the Work shall not be construed as approval of the subcontract or its terms, but only as approval of the Contractor's request to subcontract to its chosen subcontractor.

105.02.04 Fabricators and Suppliers

If the Contractor is not the owner of the place where fabrication, preparation, or manufacture is in progress, the owner thereof is deemed to be the agent of the Contractor.

105.03 Conformity with Contract  

The Contract is comprised of complementary documents that together describe the requirements of the Project. Requirements occurring in one are as binding as though occurring in all. Keep one set of Plans, Special Provisions, addenda, Change of Plan, Right of Way Plans, Standard Specifications, and Standard Details within the Project Limits at all times.

In the event the Contractor discovers a discrepancy, error, omission, or ambiguity in the Contract, or if the Contractor has any doubt or question as to the intent or meaning of the Contract, the Contractor must immediately notify the RE as specified in 104.03.04. Do not take advantage of a discrepancy, error, omission, or ambiguity in the Contract. The Department will promptly make, in writing, interpretations or corrections if necessary. The Contractor is not relieved of the obligation to complete work because of a discrepancy, error, omission, or ambiguity. Do not make changes to the Work without written direction from the Department.

If the RE determines that work is not in conformance with the Contract or RE direction, remove and replace the work. The Contractor may request RE approval to perform corrective action rather than remove and replace nonconforming work. Submit a plan detailing a proposed method of performing corrective action to the RE for approval. Approval of a corrective action plan does not relieve the Contractor from providing work that is in conformance with the Contract.

The Department will not make payment or modify Contract Time to correct or replace nonconforming work.

If the RE identifies work that, while not in full conformance with the Contract, is reasonably acceptable, the RE will determine if the work may remain in place. The RE and the Contractor will negotiate an appropriate reduction in the Contract price. If the Department loses Federal funding for the nonconforming work, on the basis of permitting nonconforming work to remain, the Department will not pay for the work permitted to remain in place. If an appropriate modification cannot be negotiated, remove and replace or otherwise correct the work. Processing an Estimate or making payment, as specified in 109.05, does not imply or establish that the work is in conformance with the Contract.

105.04 Plans and Specifications   

Perform work in conformity with the lines, grades, cross-sections, dimensions, material requirements, and to the tolerances specified in the Contract. Whenever a slope is indicated in the Specifications, it is given in horizontal to vertical dimensions. The horizontal is indicated with an “H” and the vertical is indicated with a “V.” In case of discrepancy, calculated dimensions will govern over scaled dimensions; Plans will govern over Specifications; Department issued documents will govern over Contractor-submitted documents, ROW Plans will govern over Plans when setting monuments; Special Provisions will govern over Standard Specifications, and Project-specific Plans will govern over Standard Details.

105.05 Working Drawings  

When working drawings are specified, submit methods of construction, material designations, design calculations, catalogue cuts, illustrations, schedules, performance charts, brochures, and other information necessary to construct the work as specified in the Contract. Do not submit working drawings that are repetitious or duplicative of Items specified or detailed within the Contract or that change the Plans or Specifications.

Ensure that working drawing submissions also conform to the Department design manuals and other Department standards for the proposed work. After Award, the Department will provide additional formatting information, the number of copies required, and the address of the receiving designated design unit.

Submit working drawings on 22 × 36-inch sheets. The Department may approve the use of 8-1/2 x 11 inch sheet on a case by case basis. Submit design calculations required for the working drawings on 8-1/2 × 11-inch paper. Submit 7 copies of the working drawings to the designated design unit for review with a copy of the transmittal letter to the RE. For railroad-carrying structures, submit 4 additional copies to the designated design unit. Submit an additional copy for each outside testing agency or authority involved in the Project.

For 22 × 36-inch sheets, locate the title block in the lower right-hand corner of each sheet. For 8-1/2 × 11-inch sheets, provide a cover sheet with the title block. Do not include the title block on subsequent 8-1/2 × 11-inch sheets. Include in the title block the following minimum information:

1. Route and Section or Contract number.
2. Name of bridge/structure (on structural drawings only)
3. Municipality and county.
4. Contractor's name.
5. Fabricator's name (if applicable).
6. Data Processing Number and Federal Project Number (if applicable).
7. Title of drawing.
8. Sheet number.

For 22 × 36-inch sheets, include a revision block located to the left and adjacent to the title block and a block for an embossed Professional Engineer's seal on each sheet. For 8-1/2 × 11-inch sheets, include a revision block and a block for an embossed Professional Engineer's seal on the cover sheet. Do not include the revision block and the block for an embossed Professional Engineer's seal on subsequent 8-1/2 × 11-inch sheets.

For 22 × 36-inch sheets, include the structure number shown on the Plans for each structure in the upper right-hand corner of each sheet. For 8-1/2 × 11-inch sheets, include the structure number shown on the Plans for each structure on the cover sheet.

Review, sign, and submit working drawings in an orderly sequence so as not to delay the Work, or the work performed by Others. By submitting working drawings for review and approval, the Contractor certifies that it has verified all field measurements and that all dimensions shown conform to the Contract. The Contractor further certifies that catalog numbers, field construction criteria, materials, and other criteria have been coordinated with the requirements of the Contract and the Work for each submitted working drawing. Working drawing notes regarding materials do not satisfy the requirements for materials approval as specified in 106.04. The certification or approval of working drawings does not constitute an approval of any materials noted.

The Department's certification or approval of working drawings signifies only that the drawings are in general conformance with the Contract. The Department's certification or approval of working drawings does not relieve the Contractor from responsibility for errors and omissions in the working drawings and their correction.

Submit working drawings for certification or approval as specified in Table 105.05-1. This list is not all inclusive. Ensure that the working drawings submitted for approval are signed and sealed by a Professional Engineer. The working drawings submitted for certification are not required to be signed and sealed by a Professional Engineer unless they alter the original Contract

Submit working drawings for certification and approval as follows:

1. Certified Working Drawings. For working drawings requiring certification, include 2 blank blocks directly above the title block. Designate one block for design unit certification, and designate the other block for the Contractor’s approval stamp and a signed statement stating that the Contract has not been altered. The Department will require 30 days for review and certification or rejection and return of certified working drawings.
   
   The designated design unit, upon receipt of working drawings submitted for certification, will review the working drawing for conformance with the Contract. The designated design unit may certify compliance, conditionally certify compliance with notation or comment, or reject working drawings as submitted. The designated design unit will sign and stamp the submitted working drawings as follows:
   
   
   1. “CERTIFIED” for certification without condition.
   2. “CERTIFIED AS NOTED” for conditional certification.
   3. “REVISE AND RESUBMIT” for rejection or non-certification.
   
   For submitted working drawings that are stamped “revise and resubmit,” the designated design unit will return the submitted working drawings directly to the Contractor with a copy to the RE. Make the required revisions, corrections, and additions, and otherwise comply with the directions of the designated design unit. Ensure that revisions, corrections, additions, and other changes that were not directed are emphasized on the working drawings. Promptly re-submit the specified number of copies to the designated design unit. Only resubmit the sheets stamped “REVISE AND RESUBMIT,” and other sheets that are revised with corrections, additions, and other changes that were not directed. Do not perform work or order materials relating to the submitted working drawings before the designated design unit stamps the working drawings “CERTIFIED” or “CERTIFIED AS NOTED.”
   
   For the working drawings stamped “certified as noted,” submit to the RE the revised working drawings incorporating or satisfying the conditions of the certification in the designated design unit's notes or comments. Ensure that the revised working drawings are submitted to the RE within 30 days of receipt of the conditional certification.
   
   
2. Approved Working Drawings. For working drawings requiring approval, include 3 blank blocks directly above the title block. Designate one block for design unit recommendation for approval, designate the second block for the Department's approval, and designate the third block for the Contractor's approval stamp. The Department will require 45 days for review and approval or rejection and return of working drawings.
   
   The designated design unit, upon receipt of working drawing submitted for approval, will review the working drawing for conformance with the Contract and the design concept of the Project. The designated design unit may recommend approval to the Department or may reject working drawings as submitted. The designated design unit will sign and stamp the submitted working drawings as follows:
   
   
   1. “Recommended for approval” for submission to the Department.
   2. “REVISE AND RESUBMIT” for rejection or non-approval.
   
   When the designated design unit signs and stamps the working drawings “Recommended for approval,” the designated design unit will submit the working drawing to the Department for approval. The Department will sign and stamp the submitted working drawings as follows:
   
   
   1. “Approved” for approval.
   2. “REVISE AND RESUBMIT” for rejection or non-approval.
   
   For submitted working drawings that are stamped “revise and resubmit,” the designated design unit or Department will return the submitted working drawings directly to the Contractor with a copy to the RE. Make the required revisions, corrections, and additions and otherwise comply with the directions of the designated design unit or Department. Ensure that revisions, corrections, additions, and other changes that were not directed are emphasized on the working drawings. Promptly re-submit the specified number of copies to the designated design unit. Only resubmit the sheets stamped “REVISE AND RESUBMIT,” and other sheets that are revised with corrections, additions, and other changes that were not directed. Do not perform work or order materials relating to the submitted working drawings before the Department stamps the working drawings “Approved.”

After the submitted working drawings have been stamped “certified,” “certified As Noted,” or “Approved,” submit the final drawings on 3.15-mil minimum polyester film to the RE at least 30 days before Completion. Also, submit the specified number of copies on bond. Ensure that lines and lettering are opaque and of sufficient height and width so that legible 11 × 17-inch reductions may be made. Include the Contractor's approval stamp, containing the word “APPROVED,” and the Contractor's original signature and date.

Do not deviate from the approved, certified, or conditionally certified working drawings without obtaining prior written approval from the RE.

Ensure future revisions to the original tracing have the date within the approval stamp updated with each revision to verify that the revision was reviewed and approved by the Contractor.

105.06 Cooperation with Others   

At any time during the Contract, the Department has the right to procure, permit, and have work performed by Others on or near the Project. The Department will provide available information for work to be performed by Others.

Conduct Work so as not to interfere with or hinder the progress of the work being performed by Others. The Contractor assumes the positive obligation of cooperating with and coordinating its activities with the work done by Others. If there is a difference of opinion regarding the rights of the Contractor and Others doing work, the RE will decide the rights of the various parties involved.

105.07 Cooperation with Utilities  

105.07.01 Working in the Vicinity of Utilities

1. Initial Notice. For the Utilities specified in the Special Provisions, at least 10 days before beginning construction operations, submit notice to each Utility, with a copy to the RE, that includes the following:
   
   
   1. Name and location of the Project.
   2. Name and contact information of the Contractor and superintendent.
   3. Portion of the approved preliminary schedule or baseline schedule that affects the Utility.
   
   If the Work requires or causes the Contractor to enter railroad ROW, obtain the regulations from the railroad, including fouling parameters, before beginning construction operations.
   
   
2. Locating Existing Facilities. Before performing construction operations, obtain the location of utilities and Department electrical and ITS facilities as follows:
   
   
   1. Notify the State's One Call System (811) to obtain the location of public utilities.
   2. For the Department's fiber optic network, submit a Traffic Operations Markout Form to the Traffic Operations location specified in the Special Provisions. Obtain and complete the form as specified on the Department's website. The Department will complete the markout within 15 days after Traffic Operations receives the form. Provide the RE a copy of the form, and maintain the markout until construction operations in the vicinity of the Department's fiber optic network are completed.
   3. For the Department's electrical facilities and other ITS facilities, obtain the as-built information as specified in 102.04 contact the Department as specified in the Special Provisions.
   
   At least 15 days before excavating test pits, as specified in 202.03.02, to determine utility locations, contact each affected Utility.
   
   
3. Protection of Utilities. If required by the Utility, provide the required advance notice before beginning the work within the vicinity of the utility. If utilities need to be supported or protected, submit a plan to the Utility for approval that includes the method of support or protection to provide for uninterrupted service. At least 20 days before beginning the work, provide a copy of the plan and the Utility's approval to the RE. Protect and support utilities according to the approved plan.
   
   Protect and support existing Department electrical and ITS facilities and ensure that there is no interruption of service. Use hand tools only while working within two feet of the fiber optic network. At least 30 days before beginning the work, submit a plan to the RE for approval showing the method of support and protection.
   
   When high voltage lines are within the Project Limits, comply with N.J.S.A. 34:6-47.1 to N.J.S.A. 34:6-47.9, 29 CFR 1926.550, and N.J.A.C. 16:25. Obtain written approval from the Department of Labor, Office of Safety Compliance, and the respective Utilities for construction operations that do not provide the minimum clearances under these regulations.
   
   

   Access within railroad right-of-way is restricted.  Before beginning work within the railroad ROW or on railroad facilities, obtain the railroad’s written approval for access, the method of construction, and the schedule of the work.  Provide a copy of the submittal and approval to the RE.  Comply with the railroad’s requirements for working within the railroad right-of-way.

   If the Contractor wants to use crossings other than those indicated in the Contract, obtain written approval from the railroad. At least 14 days before beginning the work, provide the RE with a copy of the approval.
   
   When working in proximity of the railroad, do not interfere with the continuity of railroad operations. The Department will provide the estimated railroad train schedules in the Special Provisions. Ensure that construction operations do not affect the tracks appurtenances, and other property of the railroad. Ensure that the work is performed following the railroad’s access and safety restrictions.
   
   Do not store or operate equipment or material within the fouling distance of railroad facilities without written approval from the railroad. Provide the RE a copy of the approval at least 7 days before beginning the work.
   
   
4. Access. Provide Utilities or their agents access to their facilities at all times, including the opportunity to monitor the work.
   
   
5. Damage. If the Contractor damages a utility, including service connections, the Contractor shall immediately notify the affected Utility and the RE.

105.07.02 Work Performed by Utilities

The Contractor is responsible for coordinating work performed by Utilities, and is responsible for delays and costs resulting from failure to coordinate. Provide a written request to each Utility in the time specified for the advance notice requirements specified in the Special Provisions. Include the following:

1. Name and location of the Project.
2. Name and contact information of the Contractor and superintendent.
3. Portion of the approved preliminary schedule or baseline schedule that affects the Utility.

Provide a copy of the notice and response to the RE.

Where Utilities jointly use poles or duct banks, the Utilities will perform the work sequentially.

Ensure that the work site is in a condition that allows the Utility to perform its work at the scheduled time. If the Contractor fails to provide the work site at the scheduled time, the Contractor is responsible for the resulting delays and costs to the Project. If the Contractor causes the Utility to incur additional costs, or delays the Utility without prior written approval of the RE, the Contractor is responsible for these costs and delays. The Department has the right to recover the cost of damages from the Contractor.

Immediately notify the RE of failure by the Utility to respond or complete its work as specified in the Special Provisions.

105.08 Environmental Protection  

Perform the Work in compliance with environmental requirements of the Contract and the terms and conditions of permits, grants, licenses, authorizations, certifications, and other approvals procured for the Work. Maintain a copy of Department-obtained permits, grants, licenses, authorizations, certifications, and other approvals within the Project Limits. Keep a copy of Contractor-obtained permits, grants, licenses, authorizations, certifications, and other approvals for the Work within the Project Limits.

Obtain all permits, grants, licenses, authorizations, and other approvals, for off-site disposal, storage, and borrow locations. These may include but are not limited to wetlands, floodplains, regulated waste, threatened and endangered species, and historic properties (archeological sites, historic buildings, and historic districts). Conduct the studies required to obtain the necessary environmental clearances, permits, grants, licenses, authorizations, and other approvals for off-site disposal, storage, and borrow locations. Provide the RE a copy of all of the permits, grants, licenses, authorizations, and other approvals.

The Department's authority to certify SESC plans does not include off-Project borrow pits, disposal sites, or storage areas that the Contractor uses or establishes to accomplish the Work of the Project. If the land disturbance for off-Project work is 555 square yards or greater, provide the RE with a copy of the SESC plan certified by the soil conservation district according to N.J.S.A. 4:24-39, et seq.

Do not use treated timber products in shellfish areas and other environmentally sensitive areas such as, but not limited to, essential fish habitat, endangered or threatened species habitat, category one waters, trout-associated waters, and wetlands. Use non-polluting materials such as fiberglass composites in these areas. Before using treated timber products in areas other than those specified in the Contract, obtain the Department's approval.

Take the necessary precautions to prevent pollution, caused by construction operations, of land, air, waterbodies, wetlands, and groundwater within and beyond Project Limits. Employ methods and controls to minimize noise caused by construction operations. Before beginning construction operations, ensure that SESC methods are in place and functioning as specified in 158.03.02. Also, comply with the following:

1. Historical and Archeological Sites. Ensure that locations eligible for or listed on the State or National Registers of Historic Places are not used for disposing, storing, or obtaining borrow excavation. For information about historical places, consult the New Jersey Department of Environmental Protection Historic Preservation Office website at www.state.nj.us/dep/hpo/1identify/nrsr.htm.
   
   When prehistoric or historic artifacts or remains are encountered, immediately cease construction operations in that area and notify the RE. Do not resume construction operations until the Department provides direction.
   
   
2. Forests. When performing work within or adjacent to State or National Forests or Parks, comply with the regulations of the State Fire Warden, State Division of Parks and Forestry, or other authority having jurisdiction.
   
   
Take reasonable precautions to prevent forest fires caused by construction operations and also other precautions requested by Forestry officials. If a wild fire occurs, immediately notify a Forestry official and the RE of the location and extent of the fire.


3. Navigable Waters. If work is required over, on, or adjacent to navigable waters, do not interfere with the free navigation of the waterways, and ensure that the existing navigable depths are not reduced, except as allowed by permits issued for the Project. Before beginning work in or over a navigable waterway for which a Coast Guard permit has been issued, notify the Coast Guard and other agencies specified by permit condition.
   
   
4. Hazardous Material. If evidence of hazardous material not specified in the Contract is discovered, immediately cease construction operations and notify the RE. Do not resume construction operations in that area until the Department provides direction.

105.09 Load Restrictions   

Do not haul equipment or loads whose weight may damage structures, roadways, or construction. The RE may limit hauling of materials over the pavement structure. When hauling outside of the Project Limits, do not exceed legal load limits unless a permit is obtained from the New Jersey Motor Vehicle Commission.

If the Contractor is provided a certified weigh ticket by the material supplier, submit a copy of the certified weigh ticket to the RE.

If a certified weigh ticket is not provided by the material supplier, and when the Contractor will haul more than 5000 cubic yards of material for that Item to or from the Project Limits, submit to the RE a list of the trucks to be used for the operation. Include the certified tare weight of the truck, license plate number, and the motor vehicle classification. At least 5 days before starting hauling, provide the RE notice when hauling will begin. Provide to the RE a certified weigh ticket indicating the gross weight for the first load for each truck.

If the RE finds that trucks are in violation of the legal weight limits under N.J.S.A. 39:3-84, the RE has the right to reject that load of material. The RE has the right to suspend the Work for repeated violations until the condition is corrected.

105.10 Use of Explosives  

When using explosives, conform to N.J.S.A. 21:1A-128, et seq. and N.J.A.C. 12:190. When storing explosives within the Project Limits, store safely under lock and key at a location approved by the RE. Clearly mark the storage places as DANGEROUS EXPLOSIVES. Ensure that the storing and handling of explosives and highly inflammable materials conform to the regulations of the New Jersey Department of Labor and Workforce Development Safety Compliance Unit and local regulations.

Submit a blasting plan as specified in 202.03.03.A.3.a. Attend a pre-blasting meeting scheduled by the RE with the New Jersey Department of Labor and Workforce Development Safety Compliance Unit. Do not blast before the pre-blasting meeting and obtaining RE approval.

When using explosives for the prosecution of the Work, exercise the utmost care not to endanger life or property, including work completed under the Contract.

Section 106 – Control of Material

106.01 Source of Supply and Quality Requirements  

Ensure that materials furnished for the Project are new, unless otherwise specified in the Contract. Use materials that conform to the requirements of the Contract. When required by the Contract, use only products and suppliers listed on the QPL. Use sources of materials that have been approved by the Department on a Materials Questionnaire as specified in 106.04.

Within 12 hours of receiving a shipment of material, notify the RE of the type, size, quantity, and location of the material. Within 2 days of the receipt of material, provide the RE with the delivery ticket indicating the Project, Contractor, material supplier, date shipped, material description, quantity, Item, and Item number.

Do not change the source, brand, or type of material from that which has been approved for use, without the consent of the Department as specified in 106.04.

106.02 Department-Furnished Material  

If the Department furnishes materials, the Department will deliver or make the materials available at the points specified in the Special Provisions. After the Contractor picks up or takes possession of Department-furnished material, submit written notice to the Department certifying that the material was received, inspected, and accepted by the Contractor. After the notice is submitted, the Contractor is responsible for the material. The Department has the right to recover costs from the Contractor for losses, deficiencies, or damage to materials that occur after receipt by the Contractor. The Department may require the Contractor to replace, at no cost to the Department, the lost, deficient, or damaged material with material that is acceptable to the Department.

106.03 Foreign Materials  

Comply with the appropriate statutes and regulations concerning the use of foreign materials as follows:

1. Wholly State-Funded Projects. Comply with N.J.S.A. 52:32-1 and N.J.S.A. 52:33-1, et seq., which prohibits the use by the Contractor or subcontractors of farm products or materials produced or manufactured outside of the United States on public work. The Department may allow exceptions if its enforcement would be inconsistent with the public interest, where the cost of enforcing the prohibition would be unreasonable, or where the material in question is not of a class or kind mined, produced, or manufactured in the United States.
2. Federal Aid Projects. Comply with the Federal statutes and regulations that establish the “Buy America” requirements applicable to the Project. These Federal requirements, which are contained in 23 CFR 635.409 and 23 CFR 635.410, mandate among other things that manufacturing processes for iron and steel materials and all iron and steel coatings must be performed in the United States.

For steel and iron products incorporated into the Project, provide a certification from the manufacturer stating the country where the steel or iron product was melted and manufactured including application of coatings which protect or enhance the value of the material.  Ensure that 4 copies of the manufacturer’s certification are provided with each delivery of steel and iron products.  Retain 1 copy and submit 3 copies to the RE.  Ensure that the certification includes, materials description, quantity of material represented by the certification, country of manufacture, and notarized signature of a person having legal authority to bind the supplier.  If a Certification of Compliance as specified in 106.07 contains a statement regarding the country of manufacture, a separate certification is not necessary.

If the use of foreign materials is allowed, the Department may require the Contractor to deliver the material to a Department-approved site for sampling, inspection, and testing. Do not use or incorporate the foreign material into the Work before the Department approves the material.

If the Department finds the Contractor failed to comply with the Federal or State provisions regarding foreign materials, the Department may require the unapproved foreign material be removed and replaced with acceptable material. If the Department decides not to remove the unapproved foreign material, the Department will not make payment for the Item incorporating unapproved foreign material, and will make the findings, including the Contractor's name, public.

106.04 Materials Questionnaire  

At least 30 days before shipment of a material, and at least 30 days before fabrication of structural steel, precast concrete, and prestressed concrete Items, notify the RE of the proposed source of materials using the Materials Questionnaire form provided by the Department. For soil aggregate and dense graded aggregate (DGA) material, submit a copy of recently performed test results for washed gradation test, proctor test, and other tests, as specified in 901.11, for the source with the Materials Questionnaire. For ITS systems as specified in Section 704, obtain approval of system working drawings including individual components and Electrical material instead of submitting a Materials Questionnaire.

The Department will approve the source of material based on conformance of the source or material with the requirements of the Contract. If the material is required by the Contract to be listed on the QPL, the Department will base approval on the QPL. A material is not approved for use solely because the product is on the QPL; the Contractor must submit the material for approval. Do not order, fabricate, or procure materials before obtaining material source approval by the Department.

Approval by the ME of a proposed source of aggregate materials does not constitute approval of materials delivered to the Project Limits from that source, but is permission to select and use materials from that source only so long as they conform to the Specifications. As the work progresses, ensure that materials selected from approved sources continue to conform to the Specifications.

The Department will not approve material from firms and individuals suspended or debarred by the Department, included in the State of New Jersey Consolidated Debarment Report as maintained by the Department of the Treasury, Division of Building and Construction, Bureau of Contractor Prequalification, or in the Federal Government's General Services Administration document titled “List of Parties Excluded from Federal Procurement and Nonprocurement Programs (GSA List).”

106.05 Materials Inspections, Tests, and Samples  

All materials being used are subject to inspection and testing at any time before Acceptance. For materials that are stored, locate the materials so that the Department may promptly and conveniently inspect them. The Department's test results are the official test results for acceptance or rejection of materials. The Department will base acceptance or rejection on acceptance testing results or Certifications of Compliance for the various materials as specified in the respective methods of test or in the Subsections applicable to that particular material or work. After inspection, store materials to ensure the preservation of their quality. The Department has the right to re-inspect or retest materials regardless of previous approvals.

The Department may require additional samples to determine the quality and suitability of materials for their intended uses. The provisions in Section 106 do not limit the rights of the Department to order special inspections or tests as specified in 105.01.02.

Submit to the RE a request for HMA plant and field inspection, concrete plant and field inspection, and in-place testing for soil aggregate by 1:00 p.m. of the day before the requested inspection, or by 1:00 p.m. of the previous Friday for inspections requested for a Monday. With the request, provide the RE with the locations, estimated quantities, and estimated start times for each type of material. If the start time for a material delivery is delayed by more than 2 hours, the Department has the right to cancel the request, and require the Contractor to submit a new request.

The Department will not pay for unapproved materials, and the Contractor shall remove and replace unapproved materials at no cost to the Department.

When the Department performs testing on materials, the Department will bear the expense of the testing except as otherwise specified.

For aggregates that do not meet the requirements of the Contract for gradation or density or are not used in the Work, the Department has the right to charge the Contractor for the cost of sampling and testing at Departmental rates. The Department will charge $300.00 per failing sample tested for gradation and $200.00 per failing lot or sub-lot tested for density.

106.06 Plant Inspection  

The ME has the right to inspect the materials at the source and has the right to inspect manufacturing plants periodically for compliance with specified manufacturing methods. The ME may obtain material samples for laboratory testing for compliance with materials quality requirements at the plant or may use plant inspection as the basis for the acceptability of manufactured materials.

In the event plant inspection is undertaken, meet the following conditions:

1. Ensure that the ME has the cooperation and assistance of the Contractor and the producer.
2. Ensure that the ME has full access at all times to such parts of the plant as may concern the manufacture or production of the materials being furnished.
3. If required for the use of the ME, provide office space located conveniently in or near the plant.
4. Ensure that adequate safety measures for the ME are provided and maintained.

The Department reserves the right to retest or re-inspect materials that have been approved at the source of supply after they have been delivered and to reject materials which, when retested or re-inspected, do not meet the requirements of the Contract.

106.07 Certification of Compliance  

The Department will accept materials, as specified, on the basis of Certificates of Compliance stating that the materials or assemblies fully comply with the requirements of the Contract.

The Department has the right to sample and test materials or assemblies accepted on the basis of Certificates of Compliance at any time. The Department will reject materials or assemblies, whether in place or not, if found not to be in conformance with the Contract requirements.

Ensure that 4 copies of the manufacturer's Certificates of Compliance are provided with each delivery of materials, components, and manufactured items that are accepted by certification. Retain 1 copy and submit 3 copies to the RE. With the Certificate of Compliance, provide a transmittal identifying the Item for which it is submitted. Ensure that Certificates of Compliance contain the following information:

1. Project Name.
2. Name of the Prime Contractor.
3. Material description.
4. Quantity of material represented by the certificate.
5. Means of identifying the consignment, such as label marking and seal number.
6. Date and method of shipment.
7. A statement that the material conforms to the Contract material requirements and that representative samples have been sampled and tested.
8. If the submission is for an assembly of materials, a statement that the assembly conforms to the Contract.
9. Signature of a person having legal authority to bind the supplier.
10. Signature attested to by a notary public or other properly authorized person.

The Department will not make payment for work for which material is accepted on the basis of a Certificate of Compliance until the RE has received the required Certificate of Compliance and inspected and accepted the material or assembly.

106.08 Unacceptable Material  

Materials, whether in place or not, that do not conform to the requirements of the Contract, are considered unacceptable. The Department will reject unacceptable materials. Immediately remove rejected materials, unless approved by the RE as specified in 105.03. Do not use rejected material, for which the defects have been corrected, until approval has been given by the RE.

106.09 Substitutes for Proprietary Items  

If material or equipment is specified in the Contract by using the name of a proprietary item or the name of a particular supplier, the Contractor may propose a substitute except when the Special Provisions state that no substitution is permitted. To request approval for using a substitute item of material or equipment, submit a written request to the RE including the following:

1. Certification that the proposed substitute performs the functions and achieves the results called for by the design, is similar and of equal substance to that specified, and is suited to the same use as that specified.
2. Details or catalogue cut sheets on the material properties of the substitute.
3. A statement that the evaluation and approval of the proposed substitute does not hinder the Contractor's ability to complete the Contract as specified in 108.10.
4. A statement that the proposed substitute for use in the Work does not change or modify the Contract.
5. Difference between the proposed substitute from that specified.
6. Manufacturer's recommendations, maintenance requirements, and repair or replacement requirements for the substitute.

Submit additional information as requested by the Department to assist the Department's evaluation. The Department will evaluate the request and notify the Contractor in writing of approval or rejection of the proposed substitute. The Department has the right to require the Contractor to provide, at no cost to the Department, a special performance guarantee or other bond with respect to a substitute.

If, during the use of the substitute material or equipment, the RE determines that the work produced is not in conformance with the Contract, immediately discontinue the use of the substitute and complete the remaining work with the specified material or equipment. Remove the deficient work and replace it, or take corrective action as directed by the RE. The Department will not make payment or modify Contract Time to remove and replace work resulting from an authorized substitution.

Section 107 – Legal Relations

107.01 Legal Jurisdiction  

107.01.01 Applicable Law

This Contract shall be construed and governed by the Constitution and laws of the State. It is the Contractor's responsibility to be aware of and comply with Federal, State, and local laws, ordinances, rules, and regulations, and orders and decrees of bodies or tribunals having jurisdiction or authority that affect those engaged or employed on the Work, or that affect the conduct of the Work. The Contractor shall observe and comply with, and ensure the Contractor's agents and employees observe and comply with, laws, ordinances, rules, regulations, orders, and decrees. Defend and indemnify the State and its representatives against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by the Contractor or the Contractor's agents or employees, subcontractors of any tier, or suppliers. If discrepancies or inconsistencies are discovered between any document of the Contract and any law, ordinance, regulation, order, or decree, immediately notify the RE in writing.

107.01.02 Permits, Licenses, and Approvals

Procure permits, grants, licenses, authorizations, certifications, and other approvals for the prosecution of the Work, except where the Department has procured such permits, grants, licenses, authorizations, certifications, and other approvals.

For existing permits previously obtained by the Department, submit proposed modifications to the permits to the Department for approval before submitting them to the regulatory agencies having jurisdiction and interest. After receiving the Department's approval, obtain the necessary approvals from the appropriate regulatory agencies. Do not begin work covered by the proposed permit modification until the necessary approvals are obtained from the designated regulatory agencies. Before beginning the work affected by the modification, provide a copy of the approval, authorization, or modification to the RE.

Keep copies of current permits, grants, licenses, authorizations, certifications, other approvals, and modifications within the Project Limits. Clearly post a copy of each so that it is publicly available for inspection. Before beginning work that requires Contractor-procured permits, grants, licenses, authorizations, certifications, or other approvals, provide a copy to the RE.

If the Contractor is not in compliance with required permits, grants, licenses, authorizations, certifications, or other approvals, the Contractor shall take corrective actions immediately. The RE has the right to suspend the Work as specified in 108.13, until the Contractor is in full compliance. Provide to the RE, whenever requested, documentation pertaining to the noncompliance and related corrective actions taken. The Department will not make payment for or modify Contract Time for performing corrective and remedial work required to bring the Contractor into compliance.

The Contractor is responsible to pay fines levied against the Contractor, its agents, employees, and subcontractors that arise out of or are alleged to arise out of noncompliance with permits, grants, licenses, authorizations, certifications, or other approvals. The Department will recover from the Contractor costs due to fines levied against the Department that arise out of, or are alleged to arise out of, noncompliance by the Contractor, its agents, employees, and subcontractors with permits, grants, licenses, authorizations, certifications, or other approvals. The Department may hold the Contractor responsible for all engineering, inspection, and administration costs (including overhead) incurred as a result of the Contractor's noncompliance.

107.01.03 Sovereign Immunity

The Department, by entering into this Contract, does not waive its Sovereign Immunity, except as provided under N.J.S.A. 59:13-1, et seq. The rights or benefits provided the Contractor in this Contract that exceed those provided under N.J.S.A. 59:13-1, et seq., are contractual in nature, and do not expand the waiver of Sovereign Immunity provided under N.J.S.A. 59:13-1, et seq.

107.02 Discrimination in Employment on Public Works  

Pursuant to N.J.S.A. 10:2-1, the Contractor agrees that in the hiring of persons for the performance of work under the Contract or any subcontract, or for the procurement, manufacture, assembling, or furnishing of materials, equipment, supplies, or services to be acquired under the Contract, the Contractor, subcontractor, or any person acting on their behalf shall not discriminate against any person who is qualified and available to perform the work to which the employment relates by reason of race, creed, color, national origin, age, ancestry, marital status, gender, or affectional or sexual orientation.

The Contractor, subcontractor, or any person acting on their behalf shall not, in any manner, discriminate against or intimidate any employee engaged in the performance of the Work under the Contract or any subcontract hereunder, or engaged in the procurement, manufacture, assembling, or furnishing of any such materials, equipment, supplies, or services to be acquired under such Contract, by reason of race, creed, color, national origin, age, ancestry, marital status, gender, or affectional or sexual orientation.

The Department has the right to deduct a penalty of $50.00 for each person for each day that the person is discriminated against or intimidated in violation of the provisions of the Contract pursuant to N.J.S.A. 10:2-1. The Department has the right to terminate the Contract, and any monies due the Contractor under the Contract may be forfeited, for any violation of this Subsection occurring after notice to the Contractor from the Department of any prior violation of this Subsection.

107.03 Affirmative Action, Disadvantaged Business Enterprises, or Emerging Small Business Enterprise  

It is the public policy of the State and of the United States that no individual, group, firm, or corporation working on or seeking to work on a Public Works Project should be discriminated against on the basis of race, creed, color, national origin, age, ancestry, nationality, marital or domestic partnership status, gender, disability, liability for military service, affectional or sexual orientation, atypical cellular or blood trait, or genetic information (including the refusal to submit to genetic testing). The Department has developed Affirmative Action, Disadvantaged Business Enterprise, or Emerging Small Business Enterprise Programs to implement this policy, and the regulations and requirements applicable to the Contract are contained in the Special Provisions. The Department will resolve conflicts between these regulations and requirements and the other provisions of the Contract to further the above stated public policy.

107.04 New Jersey Contractual Liability Act  

The Contractor agrees to be responsible for compliance with N.J.S.A. 59:13-1, et seq. The Contract does not in any way waive or amend the Contractor's duties under N.J.S.A. 59:13-1, et seq.

The various notice provisions specified in the Contract are contractual obligations that are in addition to the Contractor's notice obligations under N.J.S.A. 59:13-1, et seq. The Contractor must submit a fully completed Contractual Notice Form in order to comply with the notice requirements of N.J.S.A. 59:13-5, et seq.

The Contractor acknowledges that it will be forever barred from recovering against the State if it fails to give timely notice in accordance with N.J.S.A. 59:13-1, et seq., on the Contractual Notice Form, of any happening of an event, thing, or occurrence or of an act or failure to act, by the Department, and that the Contractor is solely responsible for complying with the various notice requirements and the timeliness of a claim as set forth under N.J.S.A. 59:13-1, et seq.

For purposes of determining the date of “completion of the contract” pursuant to N.J.S.A. 59:13-5, “completion of the contract” occurs on the date that the Contractor provides written notice to the Department of Acceptance or conditional Acceptance of the Proposed Final Certificate or the 30th day after the Department issues the Proposed Final Certificate, whichever event occurs first.

Subcontractors, suppliers, manufacturers, and fabricators are barred from making claims against the Department as a matter of law by N.J.S.A. 59:13-1, et seq.

107.05 Limitations of Liability  

Regarding any claim arising from a breach of Contract, tort (including negligence), or otherwise, the State will not be liable to the Contractor for any special, consequential, incidental, or penal damages, including, but not limited to, loss of profit or revenues, loss of rental value for contractor-owned equipment, damages to associated equipment, cost of capital, or interest, except as permitted by N.J.S.A. 59:13-8.

107.06 Personal Liability of Public Officials  

There shall be no liability upon the Department or authorized representatives of the Department, either personally or as officials of the State, in carrying out any of the provisions of the Contract or in exercising any power or authority granted to them by or within the scope of the Contract, it being understood that in all such matters they act solely as agents and representatives of the State. Similarly, for projects on county or local roads, there shall be no liability, either personally or in an official capacity, upon the Board of Chosen Freeholders of the county or counties, or upon the governing body of the municipality or municipalities within the Project Limits.

107.07 Assignment  

Do not assign the performance of the Contract.

Do not transfer or assign to any party any Contract funds, due or to become due, or claims of any nature the Contractor has against the Department, without obtaining the written approval of the Department. The Department, by sole discretion, may grant or deny such approval.

107.08 Non Waiver  

Provisions of the Contract do not waive other provisions of the Contract unless specifically stated.

If the Department waives a provision of the Contract for a particular occurrence, this waiver does not constitute a continued waiver by the Department of that provision or any other provision of the Contract.

107.09 Independent Contractor  

The relationship of the Contractor to the State is that of an independent contractor. Conduct business consistent with such status. Do not hold out or claim to be an officer or employee of the Department by reason hereof. Do not make a claim, demand, or application to or for the rights or privileges applicable to an officer or employee of the Department, including, but not limited to, Workers Compensation Insurance, unemployment insurance benefits, social security coverage, or retirement membership or credit.

107.10 Non-Third Party Beneficiary Clause  

No provision of the Contract is intended to make the public or any member thereof a third party beneficiary, or to authorize anyone not a party to the Contract to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of the Contract.

It is the further intent of the Department and the Contractor in executing the Contract that no individual, firm, corporation, or any combination thereof, that supplies materials, labor, services, or equipment to the Contractor for the performance of the Work becomes thereby a third party beneficiary of the Contract. The Department and the Contractor understand that such individual, firm, corporation, or combination thereof, has no right to bring an action in the courts of this State against the Department, by virtue of this lack of standing, and also by virtue of the provisions of N.J.S.A. 59:13-1, et seq., which allows suit against the State in Contract only on the basis of express contracts or contracts implied in fact.

107.11 Risks Assumed by the Contractor  

The Contractor shall take every precaution, as allowed by the Contract, against injury or damage to any part of the Project by the action of the elements, the traveling public, vandalism, or from any other cause, whether arising from the execution or the non-execution of the work.

The Contractor cannot impute the negligence of consultants, other contractors, Utilities (other than the Department), other public entities, persons or entities to the Department.

The Contractor assumes the following distinct and several risks, whether they arise from acts or omissions, whether negligent or not, and whether such risks are within or beyond the control of the Contractor, as specified in 107.11.1 to 107.11.4. Excepted from this assumption of risks are only those risks that arise from solely affirmative acts by the State subsequent to the execution of the Contract with actual and willful intent to cause loss, damage, or injury. The risks are assumed by the Contractor as follows:

1. Damage Caused by the Contractor. The Contractor bears the risk of all loss or damage caused by the Contractor, the Contractor's agents or employees, subcontractors of any tier, suppliers, or agents making deliveries. Protect and preserve public and private property from damage or loss in the prosecution of the Work. Promptly repair or replace such damage or loss as directed by the RE. The Department will not make payment or modify Contract Time for such repair or replacement.
   
   If the Contractor damages the Department's fiber optic network, the Contractor shall immediately notify the RE and the Traffic Operations Center. The Contractor shall include in the notification if the Contractor shall perform the repairs or if it is necessary for the Department to perform the repairs. If the Contractor can not complete the repairs in the time specified by the RE, the Department has the right to repair the damage and recover the cost for the repair from the Contractor. The Department will assess liquidated damages for lost services at the rate of $1000 per hour.
   
   
2. Risks of Loss or Damage to the Construction. Until Acceptance, the Contractor bears the risk of all loss or damage to materials and to construction performed under the Contract. Promptly repair or replace such damage or loss. The Department will not make payment or modify Contract Time for repairing or replacing loss or damage.
   
   The Contractor shall not bear such risk of loss or damage for the repair or replacement of any permanent element of work if the element of the work damaged is completed and is serving its intended function, is subsequently damaged by a public traffic accident, and the Contractor provides the RE satisfactory evidence that such damage was caused by a public traffic accident. Satisfactory evidence is limited to:
   
   
   1. Accident reports filed with the New Jersey Motor Vehicle Commission.
   2. Documents supporting the damage issued by police agencies or insurance companies.
   3. Statements by reliable, unbiased eye witnesses.
   4. Identification of the vehicle involved in the accident.
   
   The Contractor shall not bear the risk of loss or damage that arises from acts of war, floods, tidal waves, earthquakes, cyclones, tornadoes, hurricanes, or other cataclysmic natural phenomenon, unless such loss or damage is covered by the Contractor's insurance.
   
   
3. Risks of Claims on Account of Injury, Loss, or Damage. The Contractor bears the risk of claims, just or unjust, by third persons made against the Contractor or the State, on account of injuries (including wrongful death), loss, or damage of any kind whatsoever arising or alleged to arise out of or in connection with the performance of the Work. The risk of claims, whether or not actually caused by or resulting from the performance of the Work or out of or in connection with the Contractor's operations or presence at or within the Project Limits, whether such claims are made and whether such injuries, loss, and damages are sustained, applies at any time both before and after Acceptance.
   
   
4. Risks of Loss to Property of Those Performing the Work. The Contractor bears the risk of loss or damage to any property of the Contractor, and of claims made against the Contractor or the State for loss or damage to any property of subcontractors, workers, and others performing the Work, and to lessors. Said risk occurs at any time before removal of such property from the Project Limits, the State's ROW, or any other property procured by the Contractor for the Project.

Defend and indemnify the State from any and all claims or alleged claims described in 107.11.3 and 107.11.4, and for all expense incurred by the State in the defense, including legal and related costs, settlement, or satisfaction thereof. If so directed by the State, the Contractor shall at its own expense defend against such claims, in which event it shall not, without obtaining express advance permission from the State, raise any defense involving in any way jurisdiction of the tribunal, immunity of the State, governmental nature of the State, or the provisions of any statutes respecting suits against the State.

The provisions of this Subsection are also for the benefit of the State, its agents, officers, and employees so that they have all the rights that they would have under this Subsection if they were named at each place above at which the State is named, including a direct right of action against the Contractor to enforce the foregoing indemnity except, however, that the State may at any time in its sole discretion and without liability on its part cancel the benefit conferred on any of them by this Subsection, whether or not the occasion for invoking such benefit has already arisen at the time of such cancellation.

Except as specified in 107.11.2, Acceptance, the Final Certificate, or Termination does not release the Contractor from its obligations under this Subsection.

The enumeration in this Subsection or elsewhere in this Contract of particular risks assumed by the Contractor or of particular claims for which it is responsible shall not be deemed:

1. To limit the effect of the provisions of this Subsection or of any other provision of the Contract relating to such risks or claims; or
2. To imply that the Contractor assumes or is responsible for risks or claims only of the type enumerated in this Subsection; or
3. To limit the risks that the Contractor would assume or the claims for which the Contractor would be responsible in the absence of such enumerations.

The Contractor expressly understands and agrees that any insurance protection required by the Contract, or otherwise provided by the Contractor, in no way limits the Contractor's responsibility to defend and indemnify the State. Such insurance requirements are designed to provide greater assurance to the State that the Contractor is financially able to discharge its obligations under this Subsection and as to the risks assumed elsewhere in the Contract, and are not in any way construed as a limitation on the nature and extent of such obligations.

107.12 The Contractual Claim Resolution Process  

107.12.01 Satisfying the Notice Requirements

If the Contractor has provided the RE notice of change as specified in 104.03.04, the RE and the Contractor may negotiate a resolution, even if the full impact has not been determined. If a notice of change has not been resolved, the Contractor may initiate the contractual claims resolution process.

To initiate the contractual claims resolution process, submit to the RE a Contractual Notice Form for the claim. At a minimum, include the following information with the Contractual Notice Form:

1. A detailed factual statement of the claim providing all necessary dates, locations, and Items affected by the claim.
2. The date on which facts arose that gave rise to the claim.
3. A copy of notice given to the Department pursuant to any other Subsection of the Contract that relates to the matter giving rise to the claim.
4. The name, function, and activity of each individual involved in or knowledgeable about the claim.
5. The specific provisions of the Contract that support the claim and a statement of the reasons why the provisions support the claim.
6. A detailed factual statement of the actions taken by the Contractor to mitigate the claim.
7. If the claim relates to a decision of the Department that the Contract leaves to the Department's discretion or as to which the Contract provides that the Department's decision is final, the Contractor shall set out in detail the facts supporting its contention that the decision of the Department was fraudulent, arbitrary, or capricious.
8. The identification of documents and the substance of communications relating to such claim.
9. If an extension of Contract Time is sought, the specific days sought and the basis for the claim, supported by the Contractor's approved baseline progress schedule and updates, as well as relevant fragnets. Include a time impact evaluation of the delay as specified in 108.11.01.C.
10. If additional payment is sought, provide a breakdown of the amount sought in the manner specified in 104.03.08, or other calculations and basis of the amount sought.
11. If additional payment is sought, the Contractor may provide the bid documents when escrowed with an escrow custody agent, as specified in 103.05.
12. The Contractor must state in writing that all documentation in support of the claim has been provided to the Department and that the Contractor has requested that the review process begin.

Upon request, provide the RE with 3 copies of all documentation submitted in support of the claim.

If the Department determines that the submitted Contractual Notice Form does not provide sufficient information, the Department will consider the Contractual Notice Form incomplete for the purpose of processing the claim under the Contractual Claim Resolution Process, and the Department will notify the Contractor of the missing components required to start the process. The Department will not initiate formal discussions or meetings concerning a claim submitted on an incomplete Contractual Notice Form.

The Department will review alleged liability and damages at the same time.

107.12.02 Steps

The Department will not process or review claims submitted by a subcontractor or supplier at any tier. Claims submitted by the Contractor are eligible only for payment when there is an obligation or liability on the part of the Contractor and shall not be a pass through of a claim by a subcontractor or by a supplier.

A Contractor may initiate the Contractual Claims Resolution Process up to 30 days after the issuance of the proposed Final Certificate.

The Contractual Claims Resolution Process may continue beyond the “completion of the contract” as defined in 107.04; however, the Contractual Claims Resolution Process will not extend any statute of limitation that may apply to a claim.

The Contractual Claims Resolution Process is sequential in nature and is composed of the following steps:

1. Step I – Review by the RE.
2. Step II – Review by the Dispute Review Board.
3. Step III – Review by the Claims Committee.
4. Step IV – Non-Binding Mediation.

The Department will not allow a claim to proceed to the next level of review unless and until the claim has been reviewed at the preceding step. Additionally, the Department will not allow the claim to proceed to the next level until the Contractor indicates in writing that the decision of the previous step is unacceptable and requests that the claim be forwarded to the next step within the specified timeframe. If during any step in the process, a claim is resolved, the Contractor must sign an unconditional release, provided by the Department, as to all matters arising from the claim.

The Contractor is limited to the documentation provided to the Department at the beginning of Step I throughout all steps of the Contractual Claims Resolution Process. Submission of additional information by the Contractor at any subsequent step is cause for the claim to be returned by the Department to Step I for review. The Department will inform the Contractor in writing if the claim is returned to Step I. If a claim is returned, it must proceed through all completed steps in the process again.

The Department will not pay interest on the amount of any payment made in resolution or settlement of a claim resolved through the Contractual Claims Resolution Process.

When the value of the claim submitted by the Contractor is $20,000 or less, the Step II review will be the final step in the Contractual Claims Resolution Process. For such claims, the decision of the Dispute Review Board is final and terminates the Contractual Claims Resolution Process.

Where there has been a determination at Step I or Step II that the Contract does not provide a basis for the claim or that the Contractor has failed to timely submit a notice of claim pursuant to N.J.S.A. 59:13-1, et seq., the Department reserves the right to terminate the Contractual Claims Resolution Process at the end of Step II. For such claims, the Secretary of the Department Claims Committee will provide the Contractor with the reasons for the termination of the Contractual Claims Resolution Process and the rejection of the claim. The review of a claim at any step does not constitute a waiver by the Department of its defenses that the Contract does not provide a basis for the claim or that the Contractor failed to timely submit a notice of claim pursuant to N.J.S.A. 59:13-1, et seq.

When the Contractual Claims Resolution Process is terminated for a claim as a result of the Contractor's act or failure to act, the Contractor waives its rights to further participation in the Contractual Claims Resolution Process for that claim.

The Contractual Claims Resolution Process is as follows:

1. Step I, RE. The RE will render a written decision regarding the claim presented by the Contractor within 20 days after the RE has determined that sufficient information was provided by the Contractor on the Contractual Notice Form as specified in 107.12.01. This time limit may be extended by mutual agreement of the parties.
   
   Within 10 days of the receipt of the decision by the RE, the Contractor shall either accept or reject the decision in writing; or upon failure to accept or reject the decision in writing, the Department will terminate the Contractual Claims Resolution Process. If the Contractor rejects the decision and intends to proceed to a Step II review, the Contractor must request a Step II review within 10 days of receipt of the RE's decision.
   
   
2. Step II, Dispute Review Board (DRB). The DRB is comprised of 3 delegated members of the Department.
   
   If the Contractor provides a timely written rejection of the RE's decision and a timely request to forward the claim to Step II, the RE will forward the claim and supporting information previously submitted by the Contractor to the DRB within 7 days of receipt of the Contractor's request to forward the claim to the next step. The DRB will schedule and hold a meeting to review the claim with the Contractor within 30 days of receipt of the claim information from the RE. This time limit may be extended by mutual agreement of the parties. The DRB will issue a written decision regarding the claim within 20 days of the meeting.
   
   Within 15 days of the receipt of the decision by the DRB, the Contractor shall either accept or reject the decision in writing; or upon failure to accept or reject the decision in writing, the Department will terminate the Contractual Claims Resolution Process. If the Contractor rejects the decision and intends to proceed to a Step III review, the Contractor must request a Step III review within 15 days of receipt of the DRB's decision. Submit the request to the Secretary of the Department Claims Committee, P.O. Box 600, Trenton, New Jersey 08625-0600.
   
   
3. Step III, Claims Committee. The Claims Committee is comprised of 3 delegated voting members of the Department's management. Additional non-voting members may include a Deputy Attorney General, the Secretary of the Claims Committee, and a member of the FHWA. For issues involving the Claims Committee or Mediation, contact the Secretary of the Claims Committee.
   

   The Claims Committee will not review a claim or combination of claims valued less than $250,000 until after the receipt of conditional release as specified in 109.11.  If the Contract is 75 percent complete or greater as measured by Contract Time or Total Adjusted Contract Price, the Claims Committee will not review a claim or combination of claims valued more than $250,000 until after receipt of conditional release as specified in 109.11.  If the Claims Committee does not review a claim or combination of claims before Completion, the Claims Committee will review the claim or combination of claims at a single session of the Claims Committee after the receipt of the conditional release as specified in 109.11 and all claims have been reviewed at Steps I and II of the Claims Resolution Process.  When reviewing a combination of claims, the Claims Committee will not review any individual claim valued less than $20,000.

   Regarding a request for a Step III review that meets the applicable requirements, the Secretary of the Claims Committee will schedule a Claims Committee review to be held within 60 days of the receipt of the request from the Contractor. This time limit may be extended by mutual agreement of the parties. The Claims Committee will notify the Contractor in writing of its decision on the claim within 60 days of the review. Within 20 days of the receipt of the decision by the Claims Committee, the Contractor shall either accept or reject the decision in writing, or upon failure to accept or reject the decision in writing, the Department will terminate the Contractual Claims Resolution Process. If the Contractor rejects the decision and intends to proceed to a Step IV Non-Binding Mediation, the Contractor must request a Step IV Non-Binding Mediation within 60 days of receipt of the Claims Committee's decision. Submit the request to the Secretary of the Claims Committee.
   
   
4. Step IV, Non-Binding Mediation.
   
   
   1. Conditions. If the Contractor submits a timely request for a Step IV Non-Binding Mediation, and the Department tentatively agrees to participate in non-binding mediation, the Contractor must satisfy the following conditions to proceed:
      1. The Contractor has entered into the Department's standard Step IV Non-Binding Mediation Agreement (Step IV Agreement), a copy of which is available on the Department's website.
      2. The Contractor has submitted the names of 6 proposed mediators. Include the fee schedule and the biographical background listing the experience and qualifications of each candidate. If a candidate was previously engaged by the Department or Contractor, identify the project and when the candidate served. If a candidate was employed by the Department or Contractor, identify when the candidate was employed and the candidate's job duties. The Contractor may propose candidates that have been used for mediation purposes for this Project or another project.
      
      
   2. Mediator. The Department will select the mediator for the Non-Binding Mediation from the list of candidates submitted by the Contractor. If the Department rejects the proposed candidates, the Department will request the Contractor to submit 4 additional candidates that meet the original criteria. Submit this additional list within 15 days of the receipt of a written request from the Department. The mediator must be acceptable to both the Contractor and to the Department for the Non-Binding Mediation to proceed. Upon mutual agreement, the mediator can be an individual proposed by the Department.
      
      
   3. Meeting. Upon selection of the mediator and the return of the executed Step IV Agreement, the Secretary of the Claims Committee will schedule a meeting for the Non-Binding Mediation.
      
      
   4. Decision. If an agreement is reached at non-binding mediation, it will be forwarded for Department approval.

107.13 Litigation of Claims by the Contractor  

The Contractual Claims Resolution Process is not an administrative procedure but is contractual in nature, intended to review properly filed and documented claims. The exhaustion of the Claims Resolution Process is not a prerequisite to the filing of a legal action against the Department. The Contractor, however, must fully comply with all of the terms and conditions of N.J.S.A. 59:13-1, et seq. before commencing a legal action. Therefore, where a Contractor brings a legal action, arising out of a Contract, against the Department, its agents, officers, or employees, arising out of or related, directly or indirectly, to a claim pending against the Department, the Contractual Claims Resolution Process, at any step, shall terminate as to that claim(s) or related claims being litigated, no matter which level of review the claim may be at when the legal action is filed. The Department will, thereafter, resolve such claim(s) under the legal action, subject to the provisions of N.J.S.A. 59:13-1, et seq. The Contractor may submit claims to the Department for processing through the Contractual Claims Resolution Process that are unrelated to pending litigation, subject to the terms of the Contract and N.J.S.A. 59:13-1, et seq.

In a legal action, the Contractor's remedy for additional payment or an extension of Contract Time shall not exceed the actual additional costs incurred by the Contractor resulting directly from the change. In addition, the damages sought by the Contractor shall not exceed the amount allowed by force account as specified in 104.03.08. The Contractor bears the burden of proving compliance with the requirements of the Contract, and must maintain all records required under the Contract.

107.14 Patented Devices, Materials, and Processes  

Observe patent and copyright laws. If a design, device, material, or process covered by letters of patent or copyright is used in the Work, obtain permission for such use by suitable legal agreement with the patentee or owner. Pay the costs for the use of patented materials, equipment, devices, or processes used on or incorporated in the Work. Defend and indemnify the State and the Department, affected third parties, or political subdivision from any and all claims filed against the State or Department for infringement of patented designs, devices, materials, or processes, or any trademark or copyright. The Contractor is responsible for all costs, expenses, and damages that the Contractor may be obliged to pay by reason of an infringement during the performance of the Work or after Acceptance.

107.15 Taxes  

N.J.S.A. 54:32B-9 provides that any sale or service to the State, or any of its agencies, instrumentalities, public authorities, public corporations (including a public corporation created pursuant to agreement or compact with another state), or political subdivisions where the State is the purchaser, user, or consumer, is not subject to the sales and use taxes imposed under the Sales and Use Tax Act. N.J.S.A. 54:32B-8 provides that sales of materials, supplies, or services made to contractors, subcontractors, or repairmen for exclusive use in erecting structures, or building on, or otherwise improving, altering, or repairing real property of the above listed bodies are exempt from the tax on retail sales imposed by the Sales and Use Tax Act. The sales tax exemption does not apply to equipment used for Contract work or for force account work whether the equipment is to be purchased or rented. The Contractor may obtain the required Contractor's Exemption Purchase Certificate (Form No. ST-13) to apply for the exemption, by writing or calling the New Jersey Division of Taxation, Tax Information Services, P.O. Box 269, Trenton, New Jersey 08625, or any New Jersey Division of Taxation Regional Office.

Pursuant to N.J.S.A. 54:49-19, et seq., and notwithstanding any provisions of the law to the contrary, whenever a taxpayer, partnership, or S-corporation under contract to provide goods, services, or construction projects to the State or its agencies or instrumentalities, including the legislative and judicial branches of the State government, is entitled to payment for those goods or services at the same time a taxpayer, partner, or shareholder of that entity is indebted for any State tax, the Director of the Division of Taxation will seek to set off the necessary payment to satisfy the indebtedness. The amount set off shall not allow for the deduction of any expense or other deductions that might be attributable to the taxpayer, partner, or shareholder subject to set-off under this act.

The Director of the Division of Taxation will give notice of the set-off to the taxpayer, partner, or shareholder and will provide an opportunity for a hearing within 90 days of the notice under the procedures for protests established under N.J.S.A. 54:49-18. No request for conference, protest, or subsequent appeal to the tax court from any protest, shall stay the collection of the indebtedness. The Department will stay interest that may be payable by the State to the taxpayer, pursuant to N.J.S.A. 52:32-32, et seq.

107.16 Recovery of Monies by the State  

Whenever the Contract provides that:

1. the State or Department is entitled to withhold, deduct, or recover money from any monies due or that may become due the Contractor;
2. the Contractor is to pay or return monies for any reason; and
3. the State or Department is entitled to payment from the Contractor for costs, assessments, or fines

the State or Department has the right to recover any monies due or that may become due the Contractor under the Contract or any other contracts with the Department (including joint ventures in which the Contractor is a participant but only to the extent of its participation), including but not limited to deducting the amount from Estimates, retainage, or the sale of bonds held in lieu of retainage for any contract with the Department, even when such recovery is being contested by the Contractor.

107.17 Communication with the News Media

Do not communicate with the news media or issue a news release without obtaining a prior written approval from the Department.

Section 108 – Prosecution and Completion

108.01 Subcontracting  

The Department will not permit subcontracting without Department approval. The Contractor is responsible for the work performed by subcontractors. Ensure that no work is performed by a subcontractor before receiving written approval for each subcontractor from the Department. Ensure that work reserved for a subcontractor designated as a DBE, ESBE, or SBE, is not performed by any other firm, including the Contractor's own organization. Submit requests for approval to subcontract on Department forms to the Department at least 20 days before the anticipated start of the work with the following:

1. A certified copy of the executed subcontract agreement between the Contractor and the subcontractor.
2. Proof of the subcontractor's valid business registration with the Department of Treasury, Division of Revenue according to N.J.S.A. 52:32-44.
3. Proof of the subcontractor's valid Public Works Contractor Registration with the Department of Labor, Division of Wage and Hour Compliance according to N.J.S.A. 34:11-56.18.

If requesting approval for a third tier subcontract, submit a letter from the subcontractor permitting subcontracting to a third tier, and submit the request for approval to subcontract, completed by the second tier subcontractor.

The Department will allow the Contractor to subcontract work as follows:

1. Values and Quantities. The total value of the work subcontracted may not exceed 50 percent of the Total Contract Price, except as follows:
   
   
   1. The Contractor may deduct the value of work for Items designated as Specialty Items as specified in the Special Provisions from the value of the Total Contract Price.
   2. The Contractor may deduct the value of work subcontracted to certified DBE, ESBE, and SBE firms indicated on the original DBE/ESBE/SBE Form A approved by the Department from the value of work subcontracted.
   
   The total value of the work subcontracted may not exceed 70 percent of the Total Contract Price less the value of Specialty Items as noted above.
   
   

   If a partial quantity of work for a unit price Item is subcontracted, the Department will determine the value of the work subcontracted by multiplying the price of the Item by the quantity of units to be performed by the subcontractor.

   If only a portion of work of an Item is subcontracted, the Department will determine the value of work subcontracted based on the value of the work subcontracted as indicated in the subcontract agreement and as shown in a breakdown of cost submitted by the Contractor.

   If a portion of a lump sum Item, an Item that includes specialty work, or a sign support structure is subcontracted, the Department will determine the value of work subcontracted based on the value of the work subcontracted as indicated in the subcontract agreement and as shown in a breakdown of cost submitted by the Contractor.
   
   
2. Limits and Restrictions. The Department will permit subcontracting of work with the following restrictions:
   
   
   1. The Contractor is barred from subcontracting MOBILIZATION.
   2. The Contractor may only subcontract electrical, blasting, asbestos removal, landscaping, and lead paint abatement work to subcontractors having the required certificates and licenses. Submit copies of required certificates and licenses with the request for approval to subcontract.
   3. The Contractor is barred from subcontracting to firms and individuals suspended or debarred by the Department or included in the State of New Jersey Consolidated Debarment Report maintained by the Department of the Treasury, Division of Building and Construction, Bureau of Contractor Prequalification. The Contractor must certify that neither the individual, partnership, corporation, or limited liability corporation applying to do subcontract work nor any of its corporate officers, stockholders, partners, or members are collectively or individually suspended, debarred, proposed for debarment, disqualified, declared ineligible, or voluntarily excluded from doing business by this or any other State or sub-division thereof or listed in the Federal Government's General Services Administration document, List of Parties Excluded from Federal Procurement and Nonprocurement Programs (GSA List).
   4. Subcontractors are barred from making claims against the Department, its agents, officers, or employees.
   
   
3. Subcontract Requirements. Ensure that subcontract agreements include the following Contract provisions:
   
   
   1. Federal Aid Projects. When subcontracting work on a Federal Aid project, ensure the following are included in the subcontract agreement.
      
      
      1. Required Contract Provisions, Federal Aid Construction Contracts (Form FHWA 1273).
      2. Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246).
      3. Notice of Requirement for Affirmative Action to Ensure Equal Opportunity (Executive Order 11246).
      4. State of New Jersey Equal Employment Opportunity Specifications for Contracts Funded by FHWA.
      5. Disadvantaged Business Enterprise Utilization Attachment, FHWA Funded Contracts or Emerging Small Business Enterprise Utilization Attachment, FHWA Funded Contracts.
      6. Incentive Program, Disadvantaged Business Enterprise Utilization Attachment for FHWA Funded Contracts.
      7. Equal Employment Opportunity Special Provisions.
      8. Special Contract Provisions for Investigating, Reporting, and Resolving Employment Discrimination and Sexual Harassment Complaints.
      9. Training Special Provisions.
      10. General Wage Determinations Issued Under the Davis-Bacon and Related Acts.
      11. New Jersey Department of Labor Prevailing Wage Rate Determination.
      12. New Jersey Department of Transportation Code of Ethics for Vendors.
      13. Subsection 107.04 as amended or supplemented.
      
      
   2. Wholly State Funded Projects. When subcontracting work on a wholly State funded project, ensure the following are included in the subcontract agreement.
      
      
      1. State of New Jersey Equal Employment Opportunity for Contracts Funded by Wholly State Funds.
      2. Payroll Requirements for 100 Percent State Projects.
      3. Americans with Disabilities Act for 100 percent State Funded Contracts.
      4. Equal Employment Opportunity Special Provisions Construction Contracts Funded by Wholly State Funds.
      5. Small Business Enterprise Utilization Attachment for 100 Percent State Funded Contracts.
      6. Minority/Female Outreach and Training Program for Wholly State Funded Projects.
      7. Training Reimbursement.
      8. New Jersey Department of Labor Prevailing Wage Rate Determination.
      9. New Jersey Department of Transportation Code of Ethics for Vendors.
      10. Subsection 107.04 as amended or supplemented.

108.02 Commencement of Work  

Within 15 days from the date of the execution of the Contract and before beginning construction operations, submit to the RE the following:

1. Insurance certificates as specified in 152.03.
2. The designated superintendent, environmental manager, TCC, and safety officer contact information.
3. Safety program as specified in 108.05.02.
4. Progress schedule as specified in 153.03.

Provide written notice to the contact provided in 101.04.2 of the date when construction operations will begin. Provide the notice at least 21 days in advance of starting construction operations. Do not begin construction operations before the date provided.

Do not perform construction layout and FIELD OFFICE TYPE ___ SET UP until the Department has approved the insurance certificates and the safety program. Do not begin other construction operations until after the following actions:

1. A preconstruction conference with the Department has been held.
2. Approval of the progress schedule as specified in 153.03.02.
3. The field office has been established.
4. The ROW limits, limits of construction, and environmentally restricted areas have been laid out.

When a Request for Authorization Form for the New Jersey Pollutant Discharge Elimination System 5G3 – Construction Activity Stormwater General Permit (NJG0088323) is specified as a Contract requirement, do not perform land disturbance activity, including clearing, grading, or excavation, until 35 days after submission of the Request for Authorization Form to the Department as specified in 103.04.

Begin construction operations within 25 days of the date the Contract is executed by the Department. For contracts with a completion date as specified in 108.10, the Contract start date is the 25th day after execution of the Contract. For Working Day contracts, the Contract start date is the earlier of: the 25th day after execution of the Contract or the first day that the Contractor begins construction operations.

If the Contractor begins Work before the execution of the Contract, the Work is at the Contractor's own risk and as a volunteer. In the event the Department decides not to execute the Contract, the Contractor shall at its expense perform whatever work is necessary to leave the Project Limits in an approved condition. If any work performed before the Department's decision not to execute the Contract affects any existing road or highway, the Contractor shall at its expense restore it to its former condition or the equivalent thereof, as approved. However, all work done according to the Contract before its execution by the Department will, if the Department executes the Contract, be considered authorized work and the Department will make payment for this work as provided in the Contract.

The Contractor is not entitled to payment or an extension of Contract Time for any delay, hindrance, or interference before the first day of Contract Time following execution of the Contract by the Department.

108.03 Daily Communications  

By 9:00 A.M. every Friday, submit a written proposed work schedule for the following week (Monday through Sunday). Include at a minimum the following:

1. Items to be performed.
2. Location of the Item to be performed.
3. Hours to be worked.

Confirm with the RE the proposed work schedule before beginning each day's operation. Do not perform any work operation without providing notice to the RE.

If weather restricts the controlling activity on the critical path, provide written notice identifying the date of occurrence and activities restricted to the RE.

Provide the RE with written notice 72 hours in advance of changes in work shifts, and before restarting work after shutdowns of more than 72 hours.

108.04 Work Site and Storage  

With the approval of the RE, the Contractor may use areas within the Project Limits for storage. With the approval of the Department, the Contractor may use portions of ROW outside of the Project Limits for storage and for work.

Store and handle materials to maintain their conformance with the Contract. Comply with manufacturers', suppliers', and fabricators' storing and handling recommendations.

Do not store flammable or explosive materials near bridge structures. The Department will not allow the decks of bridges or the area under bridges, including the slopes, to be used as work sites or storage areas. Do not store equipment or material within 30 feet of the traveled way unless protected by construction barrier. If construction barrier is requested to protect a work site or storage area, submit a plan detailing the proposed installation, including required impact attenuators, to the RE for approval. The Department will not make payment for traffic control devices placed to protect a work site or storage area.

Restore storage areas and work sites to their original condition or restore as directed by the RE.

If the Contractor is in default, as specified in 108.14, the Department has the right to take over and occupy leased or rented areas used for work sites and storage, or cause it to be occupied, for the purpose of completing the Project. If the procured space is leased, the lease shall contain a provision that in event that the Contractor is in default, the lease may be assigned to the Department or its nominee.

108.05 Sanitary and Safety Provisions  

108.05.01 Sanitary

Provide sanitary facilities that comply with the requirements of the Federal, State, and local health departments for the use of anyone authorized to be within the Project Limits. Ensure that the sanitary facilities are in compliance with 29 CFR 1926.51(c). Provide separate sanitary facilities for male and female employees clearly marked MEN and WOMEN. Ensure that the maximum distance between same gender sanitary facilities is not more than one-half mile and the maximum distance between sanitary facilities and workers is not more than one-half mile. Provide the number of facilities at each facility site as specified in Table 108.05.01-1.

From October through April, clean and sanitize sanitary facilities at least once per week. From May through September, clean and sanitize sanitary facilities at least twice per week.

108.05.02 Safety Program

Observe all rules and regulations of the Federal, State, and local health officials, including regulations concerning construction safety and health standards.

At the preconstruction meeting, submit to the RE for approval a written safety program that meets or exceeds the minimum requirements of the Contract and applicable State or Federal regulations. Include at a minimum the following:

1. Description. Describe in detail how the safety program is implemented and monitored. Provide guidelines for protecting personnel from hazards associated with Project operations and activities. Establish the policies and procedures for safety practices that are necessary for the Work to be in compliance with the requirements of OSHA and other State and Federal regulatory agencies with jurisdiction, rules, regulations, standards, or guidelines in effect at the time the Work is in progress.
   
   
2. Certification, Responsibility, and Identification of Personnel. Identify the qualified safety professional responsible for developing the safety program and provide that person's qualifications for developing the safety program including, but not be limited to, education, training, certifications, and experience in developing this type of safety program.
   
   Provide a certification, executed by the qualified safety professional that developed the safety program, stating that the safety program complies with the rules, regulations, standards, and guidelines in effect at the time the Work is in progress, of OSHA, and other applicable Federal, State, and local regulatory agencies having jurisdiction.
   
   Identify a safety officer and designate the on-site supervisory-level personnel responsible for implementing and monitoring the safety program until Acceptance and having the authority to take prompt corrective measures to eliminate hazards, including the authority to stop work. Include documentation of training provided to the on-site supervisory-level personnel.
   
   For work that requires a competent person as defined by OSHA, ensure that the person is capable of identifying existing and predictable hazards and has the authority to take prompt corrective measures to eliminate the hazards, including the authority to stop work. Include documentation of the qualifications of such competent persons identified, including certifications received.
   
   
3. Elements of the Program. Include information and procedures for the following elements:
   
   
   1. Chain of Command. Include the responsibilities of the management, supervisor, safety officer, and employees.
   2. Traffic Control Coordinator. Include the name and contact information. Ensure that the traffic control coordinator meets the requirements specified in 159.03.01.
   3. Environmental Manager. Include the name and contact information. Ensure that the environmental manager meets the requirements specified in 158.03.01.
   4. Local Emergency Telephone Numbers. Include police, fire, medical, and, NJDEP hot line 1-877-WARN DEP (1-877-927-6337).
   5. Procedures for Handling Emergencies. Provide guidelines for handling emergencies, including emergency action plans for accidents involving death or serious injury, property damage, fires, explosions, and severe weather. Include the emergency contact information of the Contractor's personnel responsible for handling emergencies.
   6. Training Topics. Include regulatory and jobsite toolbox meetings. Include the documentation from the training and an attendance sheet for each.
   7. Contractor's Safety Rules. Include housekeeping procedures and personal protective equipment requirements.
   8. Employee Disciplinary Policy. Include the violation forms.
   9. Safety Checklists. Include project safety-planning, emergency plans and procedures, documentation, and protective materials and equipment.
   10. Forms. Include OSHA 300 Log and New Jersey Department of Labor L&I-1.
   11. Security Policy Guidelines. Provide a copy for the office and for the Project Limits.
   12. Hazard Communication Program. Provide the following:
       
       
       1. The location of and instructions for understanding the MSDS. Ensure that the location and instruction are available to anyone within the Project Limits.
       2. The person responsible for the hazard communication program and the method of informing personnel of the hazardous communication program. Include attendance sheets of hazard communication meetings.
       3. When performing work that generates airborne crystalline silica, include engineering and work practice controls to limit exposure levels to at or below the permissible exposure limit according to 29 CFR 1910.1000 Table Z-3. Ensure that the program includes employee training and respiratory protection measures according to 29 CFR 1910.134 and control of the area when the permissible exposure limit is exceeded. Provide a trained and competent person, according to 29 CFR 1926.30, within the Project Limits at all times when performing work that produces airborne crystalline silica.
       
       
   13. Additional Requirements. Provide additional procedures for Project specific topics including:
       
       
       1. Compressed gas cylinders.
       2. Confined spaces.
       3. Cranes.
       4. Electrical.
       5. Equipment operators.
       6. Fall protection.
       7. Hand and power tools.
       8. Hearing conservation.
       9. Highway safety.
       10. Lead.
       11. Lock out/tag out.
       12. Materials handling, storage, use, and disposal.
       13. Night work.
       14. Personal protective equipment.
       15. Project entry and exit.
       16. Respiratory protection.
       17. Sanitation.
       18. Signs, signals, and barricades.
       19. Subcontractors.
       20. Trenching.
       
       
   Within 15 days of receiving the safety program, the Department will determine if the safety program meets the requirements of the Contract. If the safety program does not meet the requirements, the Department will return the safety program for revision. Do not begin work within the Project Limits until the Department has approved the safety program.
   
   The Contractor is responsible for implementing, monitoring, updating, and revising the safety program until Acceptance. Submit updates and revisions to the safety program to the RE for approval when new information, new practices or procedures, or changing site and environmental conditions necessitate modifications to protect site personnel.
   
   Maintain a copy of the updated safety program, including the appropriate documentation associated with each element, within the Project Limits so that it is available to workers and other authorized persons entering the Project Limits. Provide copies of updates to the safety program to the RE.
   
   If an incident occurs that requires a New Jersey Department of Labor Form (L&I-1) to be submitted, send a copy to the Office of Capital Project Safety, New Jersey Department of Transportation, 1035 Parkway Avenue, P.O. Box 600, Trenton, NJ 08625-0600.

108.06 Night Operations  

Night operations comprises work performed from 30 minutes before sunset to 30 minutes after sunrise. Before beginning night operations, demonstrate to the RE the method of meeting the specified illuminance levels and visibility requirements for workers and equipment for each planned operation. The Department will determine illuminance levels by taking light meter readings horizontally to the road surface facing the light source. Do not begin night operations until the RE approves the method of meeting the specified illuminance levels and visibility requirements.

1. Lighting Requirements and Illuminance Levels. Maintain the minimum illuminance level throughout the required lighting area as specified in Table 108.06-1. Provide lighting for all areas of the Work.
   



Table 108.06-1 Minimum Illuminance Levels for Night Operations
Work Description	Minimum Level (Foot Candles)	Minimum Lighting Area
Embankment Excavation Landscaping (seeding and sodding) Mechanical sweeping and cleaning Subgrade	5	General lighting throughout area of operation
Traffic Control setup and removal (excluding barrier curb)	5	Lighting on task
Traffic Director	5	Lighting on task plus minimum of 50 feet ahead and 50 feet behind employee
Milling1 HMA paving operation1 HMA roller operation1	10	Lighting on task and around equipment plus minimum of 25 feet ahead and 25 feet behind equipment plus 10 feet to each side of equipment
Crack Sealing Sawcutting and Sealing Joints Electrical work Intelligent Transportation System work	20	Lighting on task
All work not listed in this table1	10	Lighting on task

1	Provide 5 foot-candles for the indicated lighting area outside the limits for 10 foot-candles to a minimum of 100 feet ahead and 100 feet behind equipment

Ensure that lighting equipment is in good operating condition, and in compliance with applicable NEC and NEMA codes. Use freestanding portable or trailer-mounted towers capable of being moved as needed to keep pace with construction operations.

For moving operations, ensure that lighting and illuminance requirements are maintained where the work is in progress and that lighting keeps pace with the operation. Provide sufficient fuel, spare lamps, generators, and qualified personnel to ensure that required illuminance levels are maintained continuously during night operations. If at any time minimum illuminance levels are not met, cease night operations until the required illuminance levels are attained.

2. Visibility Requirements for Workers and Equipment. Ensure that workers wear a 360° high-visibility retroreflective safety garment meeting ANSI/ISEA Class 3, Level 2 standards.
   
   Uniformly light the hopper, auger, and screed areas of pavers as well as the operator's controls on all machines.
   
   Conventional vehicle headlights do not meet illuminance requirements. Ensure that moving lighting equipment used for night operations has lights directed ahead and behind the equipment.
   
   Equip moving equipment with 2-inch wide, alternating red and white, conspicuity tape meeting the National Highway Transportation Safety Administration standards. Equip off-road equipment with conspicuity tape along the full length of all 4 sides. Equip on-road vehicles, including trailers and trailer-mounted devices, with conspicuity tape along the full length of both sides, excluding the cab, and across the rear of the vehicle.
   
   Prevent or minimize glare that may interfere with traffic or disturb local residents. Perform glare control to the RE's satisfaction. Glare control may require relocating, aiming, or adjusting lights or providing screens, shields, visors or louvers on lights.

108.07 Traffic Control   

108.07.01 Interference

Do not occupy a lane, shoulder, median, or sidewalk area adjacent to traffic with equipment, material, personnel, or employee vehicles without the RE's approval.

Schedule and perform the Work so that successive construction operations and lane or roadway openings follow preceding operations as closely as possible. Confine construction operations adjacent to traffic to one side of the roadway at a time unless otherwise specified by the Contract. Where the Work is performed in stages adjacent to traffic, ensure that the road opened to traffic adequately accommodates traffic. Do not interfere with existing traffic access, except when required to perform the Work or as approved by the RE.

Do not work above vehicular or pedestrian traffic, except as specified in the Contract. Where construction interferes with existing pedestrian access, provide temporary pedestrian access as directed by the RE. Where necessary, install and maintain temporary sidewalks and curb ramps. Remove temporary access measures when no longer required.

Provide temporary approaches to maintain traffic access to private and public property as directed by the RE. When the work interferes with property owners' normal passage, provide written notice to the RE and the property owners at least 3 days before beginning work.

The RE has the right to reject or rescind approval of lane or shoulder closures because of the following:

1. Weather conditions.
2. The closure is unnecessary to perform the work.
3. Emergency conditions either on or off the Project that result in an unacceptable impact to the traveling public.

The Department will only make payment for delays or costs arising from the RE's rejecting or rescinding of lane or shoulder closure resulting from emergency conditions.

If the Work is stopped for more than 7 days or if the Work is suspended, restore excavated areas within or adjacent to the traveled way as directed by the RE.

108.07.02 Changes to the Traffic Control Plan (TCP)

Submit requests for changes to the TCP to the RE for approval at least 40 days before the change is needed. Include a written description of the requested TCP change and detailed plan sheets signed and sealed by a Professional Engineer. When proposing detours, include a copy of the signed agreement with the local government authority having jurisdiction. The signed agreement shall document the local government authority's approval of the proposed detour and indicate that the Contractor is solely responsible for the maintenance and restoration of the roadway.

The Department will not make payment for furnishing, installing, or maintaining additional traffic control devices. Remove traffic control devices when no longer required. If detours were used, restore the roadway to its original condition or as required by the agreement with the local government. The Department will not make payment for costs to restore the roadway.

108.08 Lane Occupancy Charges   

The lane closure schedule is the time period for allowable lane closures as specified in the Contract. If the Contractor's lane closures exceed these time periods, the Department will deduct from the monthly estimate a lane occupancy charge for the use and occupancy of each such lane or lanes beyond the permitted lane closure schedule until such time that the lane or lanes are reopened to traffic or until such time that the lane closure is allowed to take place again under the lane closure schedule.

The RE will keep record of each occurrence as well as the cumulative amount of time that a lane is kept closed beyond the lane closure schedule and provide the record to the Contractor.  The Department will calculate the lane occupancy charge by multiplying the length of time of the delayed opening, in minutes, by the rate of $10 per minute per lane, unless otherwise specified in the Special Provisions.  The total amount per day for the lane occupancy charge that the Department will collect will not exceed $10,000.00.

The Department will waive the lane occupancy charge where a lane or lanes are not re-opened as specified in the lane closure schedule directly and solely by reason of extraordinary, exigent circumstances not under the control of or reasonably foreseeable by the Contractor. Equipment breakdowns, supplier deliveries, and weather related hindrances are not extraordinary, exigent circumstances. However, the Department has the right to assess a lane occupancy charge for any period of time that a lane or lanes are closed beyond the reasonable period of time needed by the Contractor to open the lane or lanes closed due to an extraordinary, exigent circumstance.

108.09 Maintenance Within the Project Limits  

Continuously perform maintenance requirements within the Project Limits until Acceptance. The Project Limits to be maintained include the limits of all temporary and permanent construction, excluding those sections of highways, streets, and roads where only signs are placed. Maintenance includes but is not limited to the following:

1. Picking up and disposing of trash and debris, including trash and debris not generated by the Contractor. However, the Contractor is not responsible for the disposal of dead animals.
2. Keeping the roadway clear of dust, soil, and cleaning up non-hazardous spills.
3. Maintaining a safe and unobstructed passageway through the construction area for public traffic, including but not limited to constructing escape ramps at the edges of pavement.
4. Maintaining surface drainage, including the removal of debris, ice, and snow around inlets, to ensure that it is functioning as intended.
5. Removal of ice and snow from bridge sidewalks open to pedestrian access.
6. Access to ITS devices and their respective controllers and meter cabinets is maintained throughout the duration of the project.

Provide for maintenance and repairs beyond the Project Limits for reasonable continuance to restore the required functional operation of any systems that are impacted within the Project Limits such as drainage, utilities, and electrical.

The Contractor is not responsible for removal of ice and snow from sections of the roadway opened to traffic. For critical safety repairs, the Department has the right to complete the necessary repairs if the Contractor has not responded to the RE's notice to complete the repairs in the time frames given in the notice. The Department will recover costs incurred for having to make such repairs from the Contractor.

If the Contractor at any time fails to fully perform maintenance, the RE will immediately notify the Contractor of the noncompliance, and direct a time by which the Contractor must perform the maintenance. If the Contractor fails to remediate unsatisfactory maintenance within the time directed by the RE after receipt of such notice, the Department has the right to proceed to maintain the Project and recover costs incurred for this maintenance from the Contractor.

108.10 Contract Time  

Time is of the essence as to all time frames stated in the Contract. Complete the work required for Interim Completion and Completion requirement as specified in the Special Provisions.

When Contract Time is specified in working days, the RE will provide the Contractor with a weekly statement showing the number of days charged to the Contract for the preceding week and the number of days of Contract Time remaining. If the Contractor has dismissed its crew due to unfavorable conditions that affect the controlling operations on a day where the contractor was prepared to begin work at the regular starting time of a scheduled shift, the Department will not charge a Working Day to the Contract.

108.11 Modifications to Contract Time  

108.11.01 Extensions to Contract Time

1. Qualifications for Extensions. The Department will only extend Contract Time if an excusable delay, as specified in 108.11.01.B.2 or 108.11.01.B.3, delays work on the critical path beyond the Contract Time as specified in 108.10 using the approved progress schedule that is current at the time the delay occurred.
   
   The Department will not extend Contract Time due to Extra Work or other type of delay unless an approved progress schedule and updates are current as specified in 153.03. The Department will not make payment for delay damages, as specified in 104.03.09, unless an approved progress schedule and updates are current as specified in 153.03.
   
   The Department will not extend Contract Time for failure of the RE to furnish interpretations of the Contract unless such request for an interpretation of the Contract is reasonable and made in good faith, and was provided more than 5 days after the written request was received by the RE and the failure to respond within this 5-day period was unwarranted.
   
   The Department will not extend Contract Time for a delay that was or should have been anticipated by the Contractor at the time the Contract was awarded.
   
   
2. Types of Delays.The Department recognizes the following types of delays:
   
   
   1. Excusable, Non-Compensable Delays. ExcusableNon-Excusable Delays. Non-excusable delays are delays that are the Contractor's fault or responsibility. The Department will not extend Contract Time or make payment for delay costs incurred due to non-excusable delays.
      
      For work performed by Utilities, delays up to 30 percent of the estimated duration specified in 105.07.02 are considered non-excusable.  The duration includes both the advance notice and the completion of the work by the Utility.
      
      For delays caused by Railroads, delays up to 30 percent of the estimated availability specified in 105.07 are considered non-excusable. 
      
      
   2. Excusable, Non-Compensable Delays. Excusable, non-compensable delays are delays that are not the Contractor's or the Department's fault or responsibility. The Department will extend Contract Time but will not make payment for the delay costs incurred by the Contractor for the following excusable, non-compensable delays:
      
      
      1. Others. Delays caused by work done by Others, excluding the Department.
         
         
      2. Utilities. Delays caused by Utilities, excluding the Department, when the actual duration to complete the utility work is more than 30 percent greater than the estimated duration specified in 105.07.02. The duration includes both the advance notice and the completion of the work by the Utility.
         
         For delays caused by Railroads, when the availability to access is reduced by more than 30 percent greater than the estimated availability specified in 105.07.
         
         
      3. Extreme Weather. The Department will only extend Contract Time for weather if the Contractor cannot perform work on the controlling activity on the critical path due to weather and the cumulative delay due to weather each month exceeds the number of days specified in Table 108.11.01-1. The work on the controlling activity on the critical path is considered delayed if the Contractor is prevented from proceeding on such activity for at least 60 percent of the total daily time planned for the activity for all shifts scheduled for that day. Submit daily documentation, as specified in 108.03, for activities that are delayed by weather.
      
      
      

      Table 108.11.01-1 Anticipated Number of Days Lost per Month for Weather Sensitive Activities
      	Month	Number of Days Lost
      	January	311
      	February	281,2
      	March	20
      	April	15
      	May	10
      	June	10
      	July	10
      	August	10
      	September	10
      	October	15
      	November	15
      	December	20
      1	For concrete placements Items, as specified in Division 500, other than approach slabs, the number of days restricted is 20 days.
      2	For leap years, the number of days restricted is 29.

      4. Cataclysmic Natural Phenomena. Delays caused by lightning strikes, wild fires, floods, tidal waves, earthquakes, tornadoes, hurricanes, or other cataclysmic phenomena.
         
         
      5. Sovereign Acts of the State. Delays caused by the State in its sovereign capacity, including but not limited to epidemic or quarantine restrictions, states of emergency, and State shutdowns.
         
         
      6. War and Unrest. Delays due to war or civil disturbances.
         
         
      7. Labor Disputes. Delays due to strikes or labor disputes beyond the control of the Contractor.
         
         
      8. Shortage of Materials. Extraordinary delays in material deliveries that the Contractor or suppliers cannot foresee or forestall resulting from freight embargos, government acts, or area wide material shortages. Shortage of materials applies only to raw and fabricated materials, articles, parts, or equipment that are standard and does not apply to materials, parts, articles, or equipment that are processed, made, constructed, fabricated, or manufactured to meet the specific requirements of the Contract. The Department will only consider the physical unavailability of the material as constituting a shortage, and shall not consider cost factors as constituting a shortage. Provide documented proof that every effort to obtain the materials from all known sources within a reasonable distance from the Project Limits was made. Also provide proof that the inability to obtain such materials when originally planned, could not be remedied by revising the sequence of the construction operations.

      If approved excusable, non-compensable delays exceed a total of 180 days, the time in excess of 180 days will become excusable and compensable as specified in 108.11.01.B.3.

   3. Excusable, Compensable Delays. Excusable, compensable delays are delays that are the Department's fault or responsibility. For excusable, compensable delays, the Department will grant an extension of Contract Time and will make payment for delay damages as specified in 104.03.09.
      
      
   4. Concurrent Delays. Concurrent delays are separate delays on the critical path that occur at the same time. When an excusable, non-compensable delay is concurrent with an excusable, compensable delay, the Department will grant an extension of Contract Time but will not make payment for delay damages as specified in 104.03.09. When a non-excusable delay is concurrent with an excusable delay, the Department will not grant an extension of Contract Time or make payment for delay damages.
   
   
3. Submitting Time Impact Evaluation. If an excusable delay occurs, notify the RE, as specified in 104.03.04, detailing how the event or cause is affecting the approved progress schedule that is current at the time the delay occurred. When the full extent of the impact on the approved progress schedule can be determined, submit a request for an extension of Contract Time to the RE with a Time Impact Evaluation Form and a CPM fragnet diagram including all additional work, and the fragnet's relationship to the approved progress schedule that is current at the time the delay occurred. Clearly identify how each change or delay is represented by an activity or group of activities. Ensure that the fragnet shows logic revisions, duration changes, and new activities, including the predecessor and successor relationships.
   
   The Contractor is considered to have waived its rights to claim an extension of Contract Time, if the Contractor fails to provide written notice as specified in 104.03.04 or fails to provide the time impact evaluation.
   
   The RE will evaluate the time impact evaluation. The Department will only extend Contract Time when delay causes the work to be extended beyond the scheduled Contract Time as specified in 108.10. If the Contractor is already behind schedule and an excusable delay delays the work beyond the Contract Time as specified in 108.10, the Department will only extend Contract Time for the amount of time that directly results from the excusable delay. If the Department determines that an extension of Contract Time is warranted, the Department will extend Contract Time by a Change Order.
   
   For excusable, compensable delays, submit a request for and documentation supporting the entitlement to compensable delay damages associated with the delay as specified in and limited by 104.03.09.

108.11.02 Reductions to Contract Time

If the Work required is reduced or altered such that less time is needed to meet Contract Time, the Department has the right to reduce Contract Time by analyzing the current approved progress schedule.

108.12 Right-Of-Way Restrictions  

The Special Provisions will indicate ROW that has not been secured and the anticipated dates of availability. Review the ROW Plans and obtain from the RE all other information regarding ROW parcels, easements, temporary easements, and temporary access to parcels acquired for the Project as well as the nature and type of title acquired.

Temporary easements and temporary access to parcels will in most cases contain a limitation as to the length of time that they are in force and effect. Schedule the Work, as specified in 153.03, to accommodate the time limitations associated with each parcel.

Provide written notice to the RE at least 30 days before entering a parcel with a temporary easement or entering a parcel with temporary access. Do not enter a parcel until the RE provides written notice to the property owner.

If the Contractor needs to occupy a temporary easement or parcel beyond the time period provided by the temporary easement or access, provide a written request to the RE at least 15 days before the time period expires. Do not enter or continue to occupy the easement or parcel unless approved by the RE.

108.13 Suspension of Work  

The RE has the right to suspend the Work, wholly or in part, for such period as deemed necessary for the following:

1. Contractor Fault. Contractor fault includes but is not limited to: failure to carry out Contract requirements; failure to correct unsafe conditions; or, failure to carry out the directions of the RE.
2. Unsuitable Weather. Unsuitable weather is a weather condition that prevents the Contractor from performing work as specified in the Contract. The RE also has the right to suspend work for a potential weather condition.
3. Convenience of the Department. For the convenience of the Department, the RE may direct, in writing, the Contractor to suspend all or any portion of the Work for the period of time that the RE determines to be appropriate.

If the RE suspends a portion of the Work, Contract requirements governing work on continuing portions of the Project remain in effect. When the RE suspends the Work or portions of the Work, the Contractor is still responsible for the following:

1. Maintaining the Project Limits as specified in 108.09.
2. Maintaining SESC measures as specified in 158.03.02.
3. Maintaining traffic control devices as specified in 159.03.
4. Protecting the work already performed, and preventing damage and deterioration.
5. Protecting stored materials.
6. Complying with additional direction by the RE to secure the Project Limits and safeguard the public.

If, during suspension, the Contractor at any time fails to comply with items 1 to 6 above, the RE will immediately notify the Contractor of the noncompliance. If the Contractor fails to remediate unsatisfactory conditions within 24 hours after receipt of such notice or within the time otherwise specified, the Department has the right to remediate the unsatisfactory conditions and recover the cost of this remediation from the Contractor.

Resume work when directed by the RE. Within 7 days of receiving notice to resume work, provide the RE a written request for payment for the costs and for a modification of Contract Time for the number of days sought resulting from the suspension.

108.14 Default and Termination of Contractor's Right to Proceed  

The Department will provide written notice to the Contractor and the Surety of the cause for default, and demand elimination of such cause for default, if the Contractor does any of the following:

1. Fails to begin construction operations within 40 days of execution of the Contract.
2. Fails to perform the Work with sufficient workers and equipment or with sufficient materials to ensure its completion within the Contract Time specified, or any modification thereof.
3. Fails to complete the Contract within the Contract Time specified, as modified.
4. Performs the Work unsuitably or neglects or refuses to remove materials or to again perform such Work as may be rejected as unacceptable and unsuitable.
5. Discontinues the prosecution of the Work.
6. Fails to resume Work which has been discontinued within a reasonable time after notice to do so.
7. Becomes insolvent or is declared bankrupt, or commits any act of bankruptcy or insolvency.
8. Allows any final judgment to stand against it unsatisfied for a period of 10 days.
9. Makes an assignment for the benefit of creditors.
10. Fails to acquire or maintain the required insurance.
11. Fails to comply with Contract requirements regarding minimum wage payments, DBEs, or equal employment opportunity requirements.
12. Is a party to fraud.
13. For any other cause whatsoever, fails to carry out the Work in an acceptable manner.

If the Contractor or Surety, within a period of 10 days after such notice, does not proceed as specified in the notice, then the Department has full power and authority, without violating the Contract, to declare the Contractor in default and notify the Contractor to discontinue the Work. The Department will provide, in writing, the declaration of default to the Contractor and Surety. The Department has the right to appropriate any or all materials and equipment within the Project Limits to complete the Contract. The Department has the right to direct the Surety to complete the Contract or may enter into an agreement for the completion of the Contract with the Surety or another contractor, or use such other methods required for the completion of the Contract, including completion of the Work by the Department.

If the Department directs the Surety to complete the Contract, and the Surety elects to use a completion-contractor to perform the Work, the Surety must promptly submit to the Department a request for approval of the proposed completion-contractor as a subcontractor as per Section 108.01. The Department has the right to reject a request by the Surety to use the Contractor as the completion-contractor, either directly or under the direction of a consultant to the Surety. In addition, the Department has the right to reject a request by the Surety to contract with employees of the Contractor, directly or under the direction of a consultant to the Surety, to complete the Contract. The Department’s right to reject contained in this paragraph is based on the sole discretion of the Department.

The Contractor and Surety are not relieved of the assessment of liquidated damages, as specified in 108.20, because of the Contractor's default.

The Department will recover the costs and charges incurred by the Department, together with the cost of completing the Work from the Contractor or Surety.

The rights and remedies of the Department are in addition to any other rights and remedies provided by law or under the Contract and the bonds.

If, after declaration of default, the Department determines for any reason that the Contractor was not in default or that the delay was excusable, the rights and obligations of the parties are the same as if the Department had issued an order of termination for convenience as specified in 108.15.01.

If, after declaration of default, a court determines for any reason that the Department's default of the Contract was legally improper, the rights and obligations of the parties are the same as if the Department had issued an order of termination for convenience as specified in 108.15.01.

108.15 Termination of Contract  

108.15.01 For Convenience

The Department has the right to, by written order, terminate the Contract for convenience.

Upon receipt of an order of termination for convenience, only perform the work required in the order of termination. The Department may add work in order to secure the Project. Perform the work required in the order of termination as specified in the Contract. The Department has the right to declare the Contractor in default, as specified in 108.14, if the Contractor fails to carry out the conditions set forth in an order of termination for convenience.

When the Department orders termination for convenience, the Department will make payment for the Items completed as of the date of termination at the Contract price. The Department will make payment for the work in the order of termination, including work that was not in the Contract.

108.15.02 For Cause

The Department has the right to, by written order, terminate the Contract for cause after determining the Contractor has been declared in default as specified in 108.14.

Upon receipt of an order of termination for cause, only perform the work required in of the order of termination. The Department may add work in order to secure the Project. Perform the work required in the order of termination as specified in the Contract. If the Contractor fails to carry out the conditions set forth in an order of termination for cause, the Department will recover the costs and charges incurred by the Department, together with the cost of completing the Work from the Contractor or Surety.

The rights and remedies of the Department are in addition to any other rights and remedies provided by law or under the Contract and the bonds.

When the Department orders termination for cause, the Department will make payment for the Items completed as of the date of termination at the Contract price. The Department will make payment for the work in the order of termination including work that was not in the original Contract.

The Department will not make payment for profit and overhead not included in the Contract price for Items for work completed or partially completed except that the Department may make payment for profit and overhead on force account work as specified in 104.03.08.

If the Department's termination for cause is found by a court to be legally improper, the Department will rescind the termination for cause and order a termination for convenience. The Department will then make payment as if the termination for cause had been a termination for convenience as specified in 108.15.01.

108.16 Partial Acceptance   

If the Contractor completes a portion of the Work, the Contractor may request that the RE inspect that portion. If the RE finds that the portion has been completed, as specified in the Contract, the Department may accept that portion as being completed. If the portion is accepted, the Department may relieve the Contractor of the responsibility of maintaining that portion of the Work as specified in 108.09. The RE may reject the request made by the Contractor if the RE determines that the portion of the Project should not be subject to partial acceptance.

108.17 Interim Completion   

When an Interim Completion requirement is specified, notify the RE in writing when the work for the milestone is complete. If the RE determines that the work for the milestone appears to be complete, the RE will notify the Contractor. If the RE determines that the work for the milestone has not been completed, the RE will give the Contractor the necessary instructions to correct or complete the Work to meet the Interim Completion requirement. Notify the RE upon compliance with the RE's instructions. Repeat this procedure until the RE determines that the work for a milestone has been completed.

108.18 Substantial Completion   

Notify the RE, in writing, when the Work is substantially complete. When the RE receives written notice, the Department will perform an inspection. If the inspection indicates that the Work is not substantially completed to the Department's satisfaction, the RE will respond within 14 days and provide the Contractor the necessary instructions for completion and correction. Upon completion and correction of the Work, the Contractor shall renotify the RE that the Work is substantially complete, and the RE will perform another inspection. Repeat this procedure until the Department determines that the Work is substantially complete.

The date of the Contractor's acceptable notice is the date of Substantial Completion.

108.19 Completion and Acceptance   

Notify the RE, in writing, when the Work is complete. When the RE receives written notice, the Department will perform an inspection. If the Department determines that the Work is complete, the Department will issue a Certificate of Completion.

If the Department determines that the Work is not complete, the RE will respond within 30 days and provide the Contractor with the necessary instructions for completion and correction. Complete the Work and renotify the RE. Repeat this procedure until the Department issues a Certificate of Completion.

The date of the Contractor's acceptable notice is the date of Completion.

The Department will notify the Contractor of the date of Acceptance. After Acceptance, the Contractor is relieved of the duty of maintaining and protecting the Project. In addition, the Contractor is relieved of its responsibility for damage to the Work that may occur after Acceptance.

The Contractor, without prejudice to the terms of the Contract, is liable to the Department at any time, both before and after Acceptance, for latent defects, fraud, such gross mistakes as may amount to fraud, or actions affecting the Department's rights under any warranty or guarantee.

108.20 Liquidated Damages  

The Contractor and the Department recognize that delays to Contract Time result in damages to the Department including the effect of the delay on the use of the Project, public convenience and economic development of the State, and additional costs to the Department for engineering, inspection, and administration of the Contract. Because it is difficult or impossible to accurately estimate the damages incurred, the parties agree that if the Contractor fails to complete the Contract or portion of the Contract within the Contract Time, the Contractor shall pay the Department the liquidated damages specified in the Special Provisions.

The Department will assess liquidated damages for each and every day that the Contractor has failed to complete the Work or portion of the Work within the Contract Time requirements as specified in 108.10. If the Department discovers that the work required to meet an Interim Completion requirement is unacceptable after the RE notified the Contractor that the work appeared to be complete, the Department has the right to assess liquidated damages for the time period required to correct the unacceptable work.

When the Contractor may be subjected to more than one rate of liquidated damages established in this Section, the Department will assess liquidated damages at the higher rate.

108.21 Warranties  

Enforce all subcontractors', manufacturers', fabricators', and suppliers' warranties, express or implied, respecting any work or materials, at the direction of the RE, for the benefit of the Department. Obtain the warranties that subcontractors, manufacturers, fabricators, and suppliers would give in normal commercial practice. If directed, require the warranty to be executed in writing to the Department. The RE has the right to direct the Contractor to undertake litigation to enforce a warranty.

Section 109 – Measurement and Payment

109.01 Measurement of Quantities  

The Department will use the United States customary units to measure work completed under the contract. The Department will determine quantities of Work performed under the Contract using measurement methods and computations conforming to good engineering practice.

The Department will designate Items as Measured Items or as Proposal Items by having a suffix of M or P in the Item number respectively. The Department will measure quantities of Measured Items for payment.

For measured quantities, the Department will measure to the significant figure as specified in Table 109.01-1.

For measured quantities that are measured by area, and where areas contain fixtures that are not part of the Item, the RE will only deduct the areas of individual fixtures having an area of greater than nine square feet.

For measured quantities that are measured by volume, the Department will calculate volumes using the end area method.

For measured quantities that are measured by weight, the Department will calculate weight using the net certified weight tickets corrected for any loss or waste.

Whenever the phrase “Contract quantity” is used in this Subsection, it is the quantity in the Proposal adjusted by Change Orders.

The Department will not measure quantities for Proposal Items, except quantities designated on the Plans as “if and where directed,” for payment except at the request of the Contractor or the RE. If making a request, submit drawings, calculations, and other information demonstrating the as-built quantity. If the difference between the measured quantity and the Contract quantity is less than or equal to 10 percent of the Proposal quantity, the Department will make payment based on the Contract quantity. If the difference is more than 10 percent of the Contract quantity, the Department will make payment based on the measured quantity. For each Item that the Contractor requests a Proposal item be measured, and it is determined that the difference between the quantity measured and the Contract quantity is less than or equal to 10 percent of the Proposal quantity, the Department will deduct $500. The Department will measure quantities for Proposal Items that are designated on the plans as “if and where directed” for payment when the RE directs work using the “if and where directed” quantity.

109.02 Scope of Payment   

The Department will make payment for the elements of work described under the “Construction” or “Procedure” subsection under the corresponding Item in the “Measurement and Payment” Subsection. The Items included under the “Measurement and Payment” Subsection are full payment for the materials described under the “Materials” Subsection and the work described under the corresponding “Construction” or “Procedure” Subsection. The Department will not make additional or separate payment for work or portion of work unless specifically provided for in the “Method and Payment” Subsection. For Items subject to payment modification based on quality requirements, the Department will make the payment modification as specified.

The Contractor agrees to accept the payment provided for in the Contract as full payment for furnishing labor, materials, tools, equipment, and other resources necessary to complete the Work, and for performing the Work contemplated and embraced under the Contract in a complete and acceptable manner. Except where specified elsewhere in the Contract, payment will include full compensation for all risk, loss, damage, or expense of whatever character arising out of the nature of the Work or the prosecution thereof, or for the action of the elements that the Contractor may encounter during the prosecution of the Work.

109.03 Payment for Force Account  

For work done under force account, the Department will make payment for the costs allowed as specified in 104.03.08 based on the following documentation submitted by the Contractor at the completion of each force account:

1. Copy of all RE preapprovals for: extraordinary labor as specified in 104.03.08.1; specific extraordinary expenses as specified in 104.03.08.6; and equipment as specified in 104.03.08.7.
2. Copy of daily and shift reports submitted as specified in 104.03.07.
3. Copies of the associated certified payrolls for all eligible labor and foreman charges.
4. Certified records documenting all eligible labor fringe benefit rates.
5. Certified records documenting all eligible indirect labor costs.
6. Certified records documenting additional insurance rates.
7. Copies of the vendor's paid invoices for eligible materials, including breakout for handling, transportation, discounts, and allowable sales tax.
8. Copies of paid invoices for all allowable specific extraordinary expenses.
9. Certified records of the eligible hours of Contractor-owned equipment and documentation of rates as specified in 104.03.08.
10. Copies of the fully executed rental agreements and the paid invoices for eligible rental equipment. For operating costs not covered by the rental agreement, provide certified records of the eligible hours and documentation of costs.
11. For each subcontractor, provide and certify the subcontractor's documentation for items 1 through 10 above.

Provide to the RE a summary of costs for the force account in an electronic format provided by the Department, and a certification stating the following:

All costs submitted have been incurred as a result of the force account, and all vendor invoices have been paid.

The Department will adjust force account payment for those costs incurred that the Department determines to be the fault of the Contractor. The Department will further adjust the force account payment where the Contractor's prices in its Proposal for any affected original Items did not include all the costs to complete the affected work as originally provided in the Contract.

109.04 Payment for Delay Damages  

For eligible extensions, the Department will make payment for the costs allowed, as specified in 104.03.09, based on the following documentation submitted by the Contractor:

1. Copy of daily and shift reports signed off by Contractor's authorized representative.
2. Certified payrolls for all eligible labor and foreman charges.
3. Certified records on all eligible labor fringe benefits.
4. Certified records on all eligible indirect labor costs.
5. Certified records of additional insurance costs.
6. Certified records of the eligible hours of Contractor-owned equipment for payment at the rates approved by the RE.
7. Copy of the fully executed rental agreement and the paid receipt or canceled check for eligible rental equipment. For operating costs not covered by the rental agreement, provide certified records of the eligible hours at the rates approved by the RE.
8. Certified records of the eligible transportation costs for any equipment removed from the Project Limits.
9. Certified record of the eligible overhead
10. Documentation in the same format as above for each subcontractor with certification by the Contractor.

109.05 Estimates  

The Department will make monthly payments to the Contractor for work performed and for materials delivered, as specified in 109.06. The RE will calculate the payment in an Estimate consistent with the provisions of the Contract. If not otherwise described in the Contract, the RE will be the sole judge of the amount of progress payment due for partially completed work. The quantities provided in the Estimate may be approximations and may not be based on as-built quantity measurements. The Department will establish the date of the month that the Estimate is processed.

The RE will provide a summary of the Estimate to the Contractor. Before the issuance of each payment, certify, on forms provided by the Department, that:

1. Each subcontractor or supplier has been paid the amount due from the previous progress payment and shall be paid the amount due from the current progress payment and that full payment for any retainage withheld from a subcontractor has been or will be made within 30 days after the subcontractor’s work has been satisfactorily completed; or
2. There exists a valid basis under the terms of the subcontractor's or supplier's contract to withhold payment from the subcontractor or supplier, and therefore payment is withheld.

If the certification indicates that the Contractor has withheld or will withhold payment from a subcontractor or supplier, provide written notice, according to N.J.S.A. 52:32-40 and N.J.S.A. 52:32-41, of such non-payment to the subcontractor or supplier. Provide a copy of the notice to the Department and to the Surety that holds the performance bond. Include the reason for withholding payment and state the amount of payment withheld in the notice.

The date that the Department receives the certification will initiate the 20-day approval period under N.J.S.A. 2A:30A-1, et seq. The Department will not accept the certification before being requested by the RE.

If no valid basis exists for withholding payment, N.J.S.A. 52:32-40 and N.J.S.A. 52:32-41 authorize any subcontractor or supplier from whom payment is withheld to receive from the Contractor, in addition to any amount due, interest at a rate equal to the prime rate plus one percent if the subcontractor or supplier is not paid within 10 days after receipt by the Contractor of payment by the Department for completed work that is the subject of a subcontract or a material supply agreement. This interest begins to accrue on the tenth day after receipt of payment by the Contractor.

If court action is taken by a subcontractor or supplier to collect payments withheld by a Contractor and it is determined that a valid basis existed for the withholding of those payments, the subcontractor or supplier shall be liable for any court costs incurred by the Contractor in connection with the action.

The Department will not make payment for an Estimate having a value less than $5000, unless it is for the Final Certificate.

From the total Estimate amount, excluding amounts for subcontracted work on Federally funded projects, the Department will deduct and retain 2 percent until Substantial Completion.

In the first Estimate following Substantial Completion, the Department will reduce the retainage withheld to one percent of the total adjusted Contract price, excluding subcontracted work on Federally funded projects, unless it has been determined by the Department that the withholding of additional retainage is required. If retainage is held in cash withholdings, the reduction is to be accomplished by payment under the next Estimate. If retainage is held in bonds, the Department will authorize a reduction in the escrow account.

The RE has the right to not process an Estimate when, in the judgment of the RE, the Work is not performed or proceeding as specified in the Contract or following the Department giving the Contractor and Surety notice of default as specified in 108.14.

The Department's processing or payment of an Estimate is not an approval of defective or improper work. The Department, upon determining that any payment under a previous Estimate was improper or unwarranted for any reason, has the right to recover erroneous payment from the Contractor.

109.06 Materials Payments and Storage  

The Contractor may request payment for the cost of materials, including the storage cost, not incorporated into the Work. If approved by the RE, the Department will make payment for the cost of materials, including storage costs; however, the amount of payment may not exceed 85 percent of the bid price for the associated Item. The Department will not make payment for such materials until the RE is satisfied that:

1. The Contractor has properly stored and protected materials within the Project Limits or at locations owned or leased by the Contractor or the Department within the State, except that the Contractor may store structural steel outside the State with the prior approval of the Department.
2. The ME has inspected the materials and they appear to be acceptable based upon available supplier's certification and materials test reports.
3. The Contractor has provided the RE with the paid invoice or paid bill of sale for the materials and a fully executed Release of Liens for Materials Stored for Incorporation in Department of Transportation Project Form, including the transfer of ownership to the Department.
4. For material stored on property not belonging to the Department, the material is stored in a fenced area with access limited to the Department and the Contractor. Additionally, the Contractor has posted a sign at the location clearly identifying, and printed in large letters, that the materials are without encumbrances and are to be solely used for the Project.
5. When materials are stored in a leased area, the lease is made out to the Contractor and provides that it shall be canceled only with the written permission of the Department. Submit a copy of the lease to the RE.

Payment for materials does not constitute Department approval or Acceptance of the materials or work. If materials paid for are damaged, stolen, or prove to be unacceptable, the Department has the right to recover the costs from the Contractor. The Department will not make payment for plant materials until they are planted or installed.

109.07 Bonds Posted in Lieu of Retainages  

The Contractor may deposit negotiable bonds of the State or any of its political subdivisions, which have been approved by the Department, in an escrow account to secure release of all or a portion of the retainage withheld as specified in 109.05. Establish the account under the provisions of an escrow agreement to be entered into between the Contractor, the Department, and a bank located in the State that is an authorized depository with a trust department. Pay the charges of the bank for services rendered according to the terms and conditions of the escrow agreement.

The Contractor may obtain agreement forms and a list of approved bonds from the Department. Obtain bonds that have a rating of at least “B A A” by Moody's Investor Service or “B B B” by Standard and Poor's Corporation.

If the market value of the bonds on deposit in the escrow account falls below the amount of retainage required by the Contract, deposit additional bonds of sufficient value in the escrow account to secure the release of retainage, or the Department will deduct from current payments amounts sufficient to ensure that the total bond value on deposit plus retainage withheld will equal the total retainage requirement for the Contract.

Ensure that the bonds deposited in the escrow account remain acceptable to the Department. If the Contractor does not replace unacceptable bonds with acceptable bonds, the Department will withhold from future payments amounts equal to the amount of retainage, the release of which was based upon the value of the now unacceptable bonds.

In the event of a declaration of default or an Order of Termination of the Contract, the Department will notify the bank in writing of the declaration of default or the Order of Termination. Following said written notification, the bank shall not dispose of, release, or compromise any bonds or the proceeds of called or mature bonds, without written instructions from the Department. If directed by the Department, the bank shall sell any bonds in the escrow account and pay the proceeds of such sale or the proceeds held in the account from called or matured bonds to the Department or to any payee designated by the Department. The Department will send a copy of the instructions to sell to the Contractor.

109.08 As-Built Quantities   

Following Substantial Completion, the RE will finalize as-built quantities for all Items and provide a list to the Contractor for review. Accept or reject the proposed as-built quantities within 20 days of receipt. If rejecting, submit the disputed quantities and supporting calculations with a notice of rejection. The RE will review supporting calculations within 20 days, and will accept or reject, in part or in whole, the disputed as-built quantities.

If the Contractor fails to respond or fails to provide supporting calculations with a notice of rejection within the 20-day period, the Department will deem the Contractor to have accepted the proposed as-built quantities and will deem the Contractor to have waived any claim regarding the proposed as-built quantities.

109.09 Audits   

All claims filed and force account work are subject to audit at any time following the filing, whether or not part of a suit pending in the courts of this State pursuant to N.J.S.A. 59:13-1, et seq. The audit may begin after the Department has given 15-day notice to the Contractor, subcontractor, or supplier. If an audit is to be commenced more than 60 days after Acceptance, the Department will provide the Contractor with reasonable notice of the time when such audit is to begin. Provide adequate facilities that are acceptable to the Department for such audit during normal business hours. Make a good faith effort to cooperate with the auditors. Failure to retain and maintain sufficient records to allow the Department's auditor to verify a claim submitted by the Contractor, subcontractor, or supplier constitutes a waiver of such claim and bars any recovery; if the Department has already made payment, the Contractor shall refund to the Department the amount so disallowed.

At a minimum, provide the auditors the following documents unless their availability is otherwise limited by the custody agreement specified in 103.05:

1. Daily time sheets and foreman's daily reports.
2. Union agreements.
3. Insurance, welfare, and benefits records.
4. Payroll registers.
5. Earnings records.
6. Payroll tax forms.
7. Material invoices and requisitions.
8. Material cost distribution worksheet.
9. Equipment records (list of company equipment).
10. Vendors', rental agencies', and subcontractors' invoices.
11. Subcontractors' payment certificates.
12. Canceled checks (payroll and vendors).
13. Job cost report.
14. Job payroll ledger.
15. General ledger.
16. Cash disbursements journal.
17. Financial statements for all years reflecting the operations on the Project.
18. Income tax returns for all years reflecting the operations on the Project.
19. Depreciation records on company equipment whether such records are maintained by the company involved, or its accountant, or others.
20. If a source other than depreciation records is used to develop costs for the Contractor's internal purposes in establishing the cost of owning and operating equipment, all such other source documents.
21. All documents that reflect the Contractor's actual profit and overhead during the years the Project was being performed and for each of the 5 years before the commencement of the Project.
22. All documents related to the preparation of the Contractor's bid, including the final calculations on which the bid was based.
23. All documents that relate to each and every request or claim together with all documents that support the amount of damages as to each.
24. Worksheets used to prepare the request or claim establishing the cost components for items of each including, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents that establish the time periods, individuals involved, and the hours and rates for these individuals.

Where payment for materials or labor is based on the cost thereof to forces other than the Contractor, the Contractor shall ensure that the cost records of such other forces are open to inspection and audit by the Department on the same terms and conditions as the records of the Contractor.

Pursuant to N.J.S.A. 52:15C-14(d), relevant records of private vendors or other persons entering into contracts with the Department are subject to audit or review by the New Jersey Office of the State Comptroller. Therefore, the Contractor shall maintain all documentation related to products, transactions or services under the Contract for a period of five years from the date of final payment. Such records shall be made available to the New Jersey Office of the State Comptroller upon request.

109.10 Contractor's Compliance with N.J.S.A. 34:11-56.25, et seq.   

Provide the RE with a written statement on a form provided by the Department certifying that all employees employed by the Contractor or by any subcontractor have been paid wages not less than those required by the Contract in compliance with N.J.S.A. 34:11-56.25, et seq.

109.11 Final Payment and Claims  

The Final Certificate may result in either a Final Payment to the Contractor or a credit (payment) due the Department. After Acceptance and the as-built quantities are finalized, the RE will process an Estimate and the Department will issue the Proposed Final Certificate to the Contractor.

Within 30 days after receiving this Proposed Final Certificate, submit a release or conditional release to the Department on a payment voucher provided by the Department. If the Contractor has no reservation of claims and accepts the Proposed Final Certificate, provide a written release stating the following:

In consideration of the above payment, I hereby release the State of New Jersey, Commissioner of Transportation, the Department, their agents, officers, and employees from all claims and liability of whatsoever nature for anything done or furnished or in any manner growing out of the performance of the Work.

If the Contractor has a reservation of specific claims, but otherwise has released all claims not specifically reserved and accepts the Proposed Final Certificate, state the following:

In consideration of the above payment, I hereby release the State of New Jersey, Commissioner of Transportation, the Department, their agents, officers, and employees from all claims and liability of whatsoever nature for anything done or furnished in any manner growing out of the performance for the Work except for____________________.

Include in the release the specific monetary amounts and the specific nature of the claims being reserved. Failure to state specific monetary amounts and the specific nature of the claim shall result in a waiver of such claims. The Contractor may reserve only those claims properly filed with the Department as specified in 107.12 and not previously resolved. If the Contractor reserves claims, proceed as specified in 107.12. The Contractor waives all claims for which the required notice has not been filed with the Department.

The Contractor's failure to submit written release or conditional release within said 30 days constitutes acceptance of the Proposed Final Certificate without exception and a wavier of all claims.

Upon receipt of the Contractor's written acceptance of the Proposed Final Certificate without exception or conditional release, or when the Contractor fails to provide written acceptance of the Proposed Final Certificate within 30 days of issuance, the Department will pay the entire sum due there under as provided by the N.J.S.A. 52:32-32, et seq., provided the Final Certificate indicates a payment is due the Contractor. However, where the Final Certificate indicates a credit (payment) is due the Department, the Contractor shall remit said credit (payment) to the Department.

If the Contractor fails to remit the credit due the Department, as indicated on the Proposed Final Certificate, within 30 days of issuance of the Proposed Final Certificate, the Department has the right to recover the credit from the Contractor.

109.12 Ethics Standards and Conflicts of Interest  

Both the Department and the Contractor have a duty to prevent conflicts of interest or the appearance of conflicts of interest. Ensure that all officers, employees, agents, and representatives are aware of these requirements. Obtain information regarding the State's Business Ethics Guide at www.state.nj.us/treasury/purchase/ethics.htm.

Do not pay, offer to pay, or agree to pay, either directly or indirectly, any fee, commission, compensation, gift, gratuity, or other thing of value of any kind to any Department employee, or agent as defined by N.J.S.A. 52:13D-13b. and N.J.S.A. 52:13D-13e., or to any member of the immediate family, as defined by N.J.S.A. 52:13D-13i., of any such officer or employee or agent, or any partnership, firm or corporation with which they are employed or associated, or in which such employee or agent has an interest within the meaning of N.J.S.A. 52:13D-13g.

Immediately report in writing the solicitation of any fee, commission, compensation, gift, gratuity or other thing of value by any State officer or employee or special State officer or employee from any State vendor to the Attorney General and the Executive Commission on Ethical Standards.

Do not, directly or indirectly, undertake any private business, commercial or entrepreneurial relationship with, whether or not pursuant to employment, contract or other agreement, express or implied, or sell any interest in such contract to any Department employee or agent having any duties or responsibilities in connection with the purchase, acquisition or sale of any property or services by or to any State agency or any instrumentality thereof, or with any person, firm or entity with which he is employed or associated or in which he has an interest within the meaning of N.J.S.A. 52:13D-13g.

Immediately report any relationships subject to this provision to the Executive Commission on Ethical Standards, which may grant a waiver of this restriction upon application of the Department's employee or agent and finding that the present or proposed relationship does not present the potential, actuality or appearance of a conflict of interest.

Do not influence, or attempt to influence or cause to be influenced, any Department employee or agent in his or her official capacity in any manner, which might tend to impair the objectivity or independence of judgment of said employee or agent.

Do not cause or influence, or attempt to cause or influence, any Department employee or agent to use, or attempt to use their official position to secure unwarranted privileges or advantages for the vendor or any other person.

The provisions cited above in this Subsection shall not be construed to prohibit a Department employee or agent from receiving gifts under the same terms and conditions as are offered or made available to members of the general public, subject to any guidelines the Executive Commission on Ethical Standards may promulgate.

Provide to the RE at the preconstruction meeting, on a form provided by the Department, a certification that the Contractor understands these obligations, has adhered to these ethics standards and shall continue to adhere to these ethics standards.