Standard Specifications for Road, Bridge, and Municipal Construction 2020 (M 41-10)

Page 1-118

Prosecution and Progress

1-08.9

Liquidated Damages

Time is of the essence of the Contract. Delays inconvenience the traveling public,
obstruct traffic, interfere with and delay commerce, and increase risk to Highway users.
Delays also cost tax payers undue sums of money, adding time needed for administration,
engineering, inspection, and supervision.

Because the Contracting Agency finds it impractical to calculate the actual cost of
delays, it has adopted the following formula to calculate liquidated damages for failure to
complete the physical Work of a Contract on time.

Accordingly, the Contractor agrees:
1. To pay (according to the following formula) liquidated damages for each working day

beyond the number of working days established for Physical Completion, and

2. To authorize the Engineer to deduct these liquidated damages from any money due

or coming due to the Contractor.

Liquidated Damages Formula

∑

( )

(

)















−

∑

−

∑

LSL

−

USL

−

( ) ( )

( )

∑

⋅⋅

⋅

CPF

Where:

= liquidated damages per working day (rounded to the nearest dollar)

= original Contract amount

= original time for Physical Completion

When the Contract Work has progressed to the extent that the Contracting Agency has
full use and benefit of the facilities, both from the operational and safety standpoint,
all the initial plantings are completed and only minor incidental Work, replacement
of temporary substitute facilities, plant establishment periods, or correction or repair
remains to physically complete the total Contract, the Engineer may determine the
Contract Work is substantially complete. The Engineer will notify the Contractor in writing
of the Substantial Completion Date. For overruns in Contract time occurring after the
date so established, the formula for liquidated damages shown above will not apply. For
overruns in Contract time occurring after the Substantial Completion Date, liquidated
damages shall be assessed on the basis of direct engineering and related costs assignable
to the project until the actual Physical Completion Date of all the Contract Work. The
Contractor shall complete the remaining Work as promptly as possible. Upon request by
the Engineer, the Contractor shall furnish a written schedule for completing the physical
Work on the Contract.

Liquidated damages will not be assessed for any days for which an extension of time is
granted. No deduction or payment of liquidated damages will, in any degree, release the
Contractor from further obligations and liabilities to complete the entire Contract.

Prosecution and Progress

1-08

1-08.10

Termination of Contract

1-08.10(1) Termination for Default

The Contracting Agency may terminate the Contract upon the occurrence of any one or
more or the following events:
1. If the Contractor fails to supply sufficient skilled workers or suitable materials or

equipment;

2. If the Contractor refuses or fails to prosecute the Work with such diligence as will

ensure its Physical Completion within the original Physical Completion time and any
extensions of time which may have been granted to the Contractor by change order
or otherwise;

3. If the Contractor is adjudged bankrupt or insolvent, or makes a general assignment

for the benefit of creditors, or if the Contractor or a third party files a petition to take
advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws
concerning the Contractor, or if a trustee or receiver is appointed for the Contractor
or for any of the Contractor’s property on account of the Contractor’s insolvency,
and the Contractor or its successor in interest does not provide adequate assurance
of future performance in accordance with the Contract within 15 calendar days of
receipt of a request for assurance from the Contracting Agency;

4. If the Contractor disregards laws, ordinances, rules, codes, regulations, orders or

similar requirements of any public entity having jurisdiction;

5. If the Contractor disregards the authority of the Contracting Agency;
6. If the Contractor performs Work which deviates from the Contract, and neglects or

refuses to correct rejected Work; or

7. If the Contractor otherwise violates in any material way any provisions or

requirements of the Contract.

Once the Contracting Agency determines that sufficient cause exists to terminate the
Contract, written notice shall be given to the Contractor and its Surety indicating that the
Contractor is in breach of the Contract and that the Contractor is to remedy the breach
within 15 calendar days after the notice is sent. In case of an emergency such as potential
damage to life or property, the response time to remedy the breach after the notice may
be shortened. If the remedy does not take place to the satisfaction of the Contracting
Agency, the Engineer may, by serving written notice to the Contractor and Surety either:
1. Transfer the performance of the Work from the Contractor to the Surety; or
2. Terminate the Contract and at the Contracting Agency’s option prosecute it to

completion by contract or otherwise. Any extra costs or damages to the Contracting
Agency shall be deducted from any money due or coming due to the Contractor
under the Contract.

If the Engineer elects to pursue one remedy, it will not bar the Engineer from pursuing
other remedies on the same or subsequent breaches.

Page 1-120

Prosecution and Progress

Upon receipt of a notice that the Work is being transferred to the Surety, the Surety shall
enter upon the premises and take possession of all materials, tools, and appliances for
the purpose of completing the Work included under the Contract and employ by contract
or otherwise any person or persons satisfactory to the Engineer to finish the Work and
provide the materials without termination of the Contract. Such employment shall not
relieve the Surety of its obligations under the Contract and the bond. If there is a transfer
to the Surety, payments on estimates covering Work subsequent to the transfer shall be
made to the extent permitted under law to the Surety or its agent without any right of the
Contractor to make any claim.

If the Engineer terminates the Contract or provides such sufficiency of labor or materials
as required to complete the Work, the Contractor shall not be entitled to receive any
further payments on the Contract until all the Work contemplated by the Contract has
been fully performed. The Contractor shall bear any extra expenses incurred by the
Contracting Agency in completing the Work, including all increased costs for completing
the Work, and all damages sustained, or which may be sustained, by the Contracting
Agency by reason of such refusal, neglect, failure, or discontinuance of Work by the
Contractor. If liquidated damages are provided in the Contract, the Contractor shall be
liable for such liquidated damages until such reasonable time as may be required for
Physical Completion of the Work. After all the Work contemplated by the Contract has
been completed, the Engineer will calculate the total expenses and damages for the
completed Work. If the total expenses and damages are less than any unpaid balance due
the Contractor, the excess will be paid by the Contracting Agency to the Contractor. If the
total expenses and damages exceed the unpaid balance, the Contractor and the Surety
shall be jointly and severally liable to the Contracting Agency and shall pay the difference
to the State of Washington, Department of Transportation on demand.

In exercising the Contracting Agency’s right to prosecute the Physical Completion of the
Work, the Contracting Agency shall have the right to exercise its sole discretion as to the
manner, method, and reasonableness of the costs of completing the Work. In the event
that the Contracting Agency takes Bids for remedial Work or Physical Completion of the
project, the Contractor shall not be eligible for the Award of such Contracts.

In the event the Contract is terminated, the termination shall not affect any rights of the
Contracting Agency against the Contractor. The rights and remedies of the Contracting
Agency under the Termination Clause are in addition to any other rights and remedies
provided by law or under this Contract. Any retention or payment of monies to the
Contractor by the Contracting Agency will not release the Contractor from liability.

If a notice of termination for default has been issued and it is later determined for any
reason that the Contractor was not in default, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to Termination
for Public Convenience in

Section 1-08.10(2)

. This shall include termination for default

because of failure to prosecute the Work, and the delay was found to be excusable under
the provisions of

Section 1-08.8

Prosecution and Progress

1-08

1-08.10(2) Termination for Public Convenience

The Engineer may terminate the Contract in whole, or from time to time in part,
whenever:
1. The Contractor is prevented from proceeding with the Work as a direct result of an

Executive Order of the President with respect to the prosecution of war or in the
interest of national defense; or an Executive Order of the President or Governor of
the State with respect to the preservation of energy resources;

2. The Contractor is prevented from proceeding with the Work by reason of a

preliminary, special, or permanent restraining order of a court of competent
jurisdiction where the issuance of such restraining order is primarily caused by acts
or omissions of persons or agencies other than the Contractor; or

3. The Engineer determines that such termination is in the best interests of the

Contracting Agency.

1-08.10(3) Termination for Public Convenience Payment Request

After receipt of Termination for Public Convenience as provided in

Section 1-08.10(2)

the Contractor shall submit to the Contracting Agency a request for costs associated with
the termination. The request shall be prepared in accordance with the claim procedures
outlined in Sections

1-09.11

and

1-09.12

. The request shall be submitted promptly but in

no event later than 90 calendar days from the effective date of termination.

The Contractor agrees to make all records available to the extent deemed necessary by
the Engineer to verify the costs in the Contractor’s payment request.

1-08.10(4) Payment for Termination for Public Convenience

Whenever the Contract is terminated in accordance with

Section 1-08.10(2)

, payment will

be made in accordance with

Section 1-09.5

for the actual Work performed.

If the Contracting Agency and the Contractor cannot agree as to the proper amount of
payment, then the matter will be resolved as outlined in

Section 1-09.13

except that,

if the termination occurs because of the issuance of a restraining order as provided in

Section 1-08.10(2)

, the matter will be resolved through mandatory and binding arbitration

as described in Sections

1-09.13(3)A

and

, regardless of the amount of the claim.

1-08.10(5) Responsibility of the Contractor and Surety

Termination of a Contract shall not relieve the Contractor of any responsibilities under the
Contract for Work performed. Nor shall termination of the Contract relieve the Surety or
Sureties of obligations under the Contract Bond or retainage bond for Work performed.

Page 1-122

Measurement and Payment

1-09

Measurement and Payment

1-09.1

Measurement of Quantities

In measuring all acceptably completed Bid items of Work, the Engineer will:
1. Use United States standard measure;
2. Make all measurements as described in this section, unless individual Specifications

require otherwise;

3. Follow methods generally recognized as conforming to good engineering practice;
4. Conform to the usual practice of the Contracting Agency by carrying measurements

and computations to the proper significant figure or fraction of units for each item;
and

5. Measure horizontally or vertically (unless otherwise specified).

The terms listed below shall be defined as follows in all measurements under this section:

“Lump Sum” (when used as an item of payment): complete payment for the Work
described for that item in the Contract.
“Gage” (in measurement of plates): the U.S. Standard Gage.
“Gage” (in measurement of galvanized sheets used to manufacture corrugated metal
pipe, metal plate pipe culverts and arches, and metal cribbing): that specified in
AASHTO M 36, M 167, M 196, M 197, or M 219.
“Gage” (in measurement of wire): that specified in AASHTO M 32.
“Ton”: 2,000 pounds of avoirdupois weight.

Items of payment that have “Lump Sum” or “Force Account” in the Bid item of Work shall
have no specific unit of measurement requirement.

For each basis of measurement listed below, the Engineer will use the method of
measurement described. For Bid items or materials measured on the basis of:

Hour – Measured for each hour that Work is actually performed. Portions of an hour will
be rounded up to a half hour.

Square Yard or Square Foot – The measurement shall be a calculation from the neat
dimensions shown in the Plans or as altered by the Engineer. If there is an exception
within the measured area where the item of Work is not performed (such as a drainage
vault within a measured sidewalk) and if the exception area is greater than 9 square feet,
then the area of the exception will be subtracted from the payment area calculated from
the neat dimensions.

Linear Foot (pipe culverts, guard rail, underdrains, etc.) – Measured parallel to the
Structure’s base or foundation, unless the Plans require otherwise.

Measurement and Payment

1-09

Weight – Weighed as required in

Section 1-09.2

Volume (of excavation and embankment) – Measured by the average-end-area method
or by the finite element analysis method utilizing digital terrain modeling techniques.
All or some computations may be based on ground elevations and other data derived
photogrammetrically. The Engineer may correct for curvature.

Volume (in the hauling vehicle) – Measured at the point of delivery. Hauling vehicles may
be of any size or type the Engineer approves provided that the body is of such shape that
the actual contents may be readily and accurately determined. If the Engineer requires,
the Contractor shall level loads at the delivery point to facilitate measurement.

For each item listed below, the Engineer will use the method of measurement described.

Structures – Measured on the neat lines shown in the Plans or as altered by the Engineer.
When a complete Structure or structural unit is specified as the unit of measurement, the
unit shall include all fittings and accessories.

Timber – Measured by the thousand board feet (MBM) actually used in the Structure.
Measurements will be based on nominal widths and thicknesses and the extreme length
of each piece.

Standard Manufactured Items (fence, wire, plates, rolled shapes, pipe conduit, etc., when
specified) – Measured by the manufacturer’s identification of gage, unit weight, section
dimension, etc. The Engineer will accept manufacturing tolerances set by each industry
unless cited Specifications require more stringent tolerances.

Cement – Measured by the pound, ton, or sack. A sack shall be 94 pounds.

Asphalt – Measured by the gallon or ton. If measured by gallon, measurement will be
made at 60 F (or will be corrected to the volume at 60 F in keeping with ASTM D1250).
If shipped by rail, truck, or transport, measurement will be by net certified scale masses
or certified volumes (corrected for material lost en route or not actually incorporated into
the Work).

No measurement will be made for:
1. Work performed or materials placed outside lines shown in the Plans or set by the

Engineer;

2. Materials wasted, used, or disposed of in a manner contrary to the Contract;
3. Rejected materials (including those rejected after placement if the rejection resulted

from the Contractor’s failure to comply with the Contract);

4. Hauling and disposing of rejected materials;
5. Material remaining on hand after the Work is completed, except as provided in

6. Any other Work or material contrary to any Contract Provision.

Page 1-124

Measurement and Payment

1-09.2

Weighing Equipment

1-09.2(1) General Requirements for Weighing Equipment

Unless specified otherwise, any Highway or bridge construction materials to be
proportioned or measured and paid for by weight shall be weighed on a scale.

Scales – Scales shall:
1.  Be accurate to within 0.5 percent of the correct weight throughout the range of use;
2.  Not include spring balances;
3.  Include beams, dials, or other reliable readout equipment;
4.  Be built to prevent scale parts from binding, vibrating, or being displaced and to

protect all working parts from falling material, wind, and weather; and

5. Be carefully maintained, with bunkers and platforms kept clear of accumulated

materials that could cause errors and with knife edges given extra care
and protection.

Scale Operations – “Contractor-provided scale operations” are defined as operations
where a scale is set up by the Contractor specifically for the project and most, if not
all, material weighed on the scale is utilized for Contract Work. In this situation, the
Contractor shall provide a person to operate the project scale, write tickets, perform scale
checks and prepare reports.

“Commercial scale operations” include the use of established scales used to sell materials
to the public on a regular basis. In addition, for the purposes of this Specification,
all batch, hopper, and belt scales are considered to be commercial scales. When a
commercial scale is used as the project scale, the Contractor may utilize a commercial
scale operator provided it is at no additional cost to the Contracting Agency.

In addition, the Contractor shall ensure that:
1. The Engineer is allowed to observe the weighing operation and check the daily scale

weight record;

2. Scale verification checks are performed at the direction of the Contracting Agency

(see

Section 1-09.2(5)

);

3. Several times each day, the scale operator records and makes certain the platform

scale balances and returns to zero when the load is removed; and

4. Test results and scale weight records for each day’s hauling operations are provided

to the Engineer daily. Unless otherwise approved, reporting shall utilize WSDOT

Form 422-027

Scaleman’s Daily Report.

Measurement and Payment

1-09

Trucks and Tickets – Each truck to be weighed shall bear a unique identification number.
This number shall be legible and in plain view of the scale operator. Each vehicle operator
shall obtain a weigh or load ticket from the scale operator. The Contracting Agency
will provide item quantity tickets for scales that are not self-printing. The Contractor
shall provide tickets for self-printing scales. All tickets shall, at a minimum, contain the
following information:
1.  Date of haul;
2.  Contract number;
3.  Contract unit Bid item;
4.  Unit of measure;
5.  Identification number of hauling vehicle; and
6.  Weight delivered:

a. Net weight in the case of batch and hopper scales.
b. Gross weight, tare and net weight in the case of platform scales (tare may be

omitted if a tare beam is used).

c. Approximate load out weight in the case of belt conveyor scales.

The vehicle operator shall deliver the ticket in legible condition to the material receiver
at the material delivery point. The material delivery point is defined as the location
where the material is incorporated into the permanent Work. When requested by the
Engineer, the Contractor’s representative shall collect the tickets throughout the day and
provide them to the Engineer’s designated receiver, not later than the end of shift, for
reconciliation. Tickets for loads not verified as delivered will receive no pay.

1-09.2(2) Specific Requirements for Batching Scales

Each batching scale shall be designed to support a weighing container. The arrangement
shall make it convenient for the operator to remove material from the weighing container
while watching readout devices. Any weighing container mounted on a platform scale
shall have its center of gravity directly over the platform centerline. Batching scales used
for concrete or hot mix asphalt shall not be used for batching other materials.

Readout devices used for batching or hopper scales shall be marked at intervals evenly
spaced throughout and shall be based on the scale’s nominal rated capacity. These
intervals shall not exceed one-tenth of 1 percent of the nominal rated capacity. Before
use at a new site and then at 6-month intervals, all batching and hopper scales shall be:
approved under rules of the Weights and Measures Section of the Washington State
Department of Agriculture, or serviced and tested with at least 10,000 pounds by an
agent of its manufacturer. In either case, the Contractor shall provide the Engineer with a
copy of the final test results.

Page 1-126

Measurement and Payment

1-09.2(3) Specific Requirements for Platform Scales

Each platform scale shall be able to weigh the entire hauling vehicle or combination
of connected vehicles at one time. No part of the vehicle or vehicle combination will
be permitted off the platform as it is weighed. A tare weight shall be taken of each hauling
vehicle at least once daily.

Any platform scale shall be installed and maintained with the platform level and with
rigid bulkheads at either end to prevent binding or shifting. The readout device shall be
marked at intervals of no more than 40 pounds. Test records shall show results to the
nearest 20 pounds. During weighing operations, weights shall be read and recorded to the
nearest 100 pounds. Before use at a new site and then at 6-month intervals, any platform
scale shall be: approved under rules of the Washington State Department of Agriculture’s
Weights and Measures Section, or serviced and tested with at least 10,000 pounds by an
agent of its manufacturer. In either case, the Contractor shall provide the Engineer with
a copy of the final test results.

1-09.2(4) Specific Requirements for Belt Conveyor Scales

The Engineer may approve conveyor-belt weighing of untreated materials if the method
and device meet all general requirements for weighing equipment. The recording tape,
odometer, totalizer, calibration adjustment, and clock-time imprinter shall be kept
locked and the Engineer shall retain all keys. All belt-conveyor scales shall comply
with the requirements for Belt-Conveyor Scales in the National Institute of Standards
and Technology (NIST) Handbook No. 44, except where these Specifications modify
those requirements.

A static load test shall be made: each day after the belt-conveyor has run continuously for
about 30 minutes, and again, immediately after the air temperature changes significantly.
If the static load test reveals a need for adjustment, the Contractor shall perform a
chain test. The Contractor shall make the computation of the test chain calibration, the
calibration procedures and results, and related records available for the Engineer’s review.
The test chain shall be clearly marked with its calibration, carried in a suitable container,
and kept immediately available for testing.

1-09.2(5) Measurement

Scale Verification Checks – The Engineer will verify the accuracy of each batch, hopper,
or platform scale. The frequency of verification checks will be such that at least one test
weekly is performed for each scale used in weighing contract items of Work.

Verification checks may not be routinely conducted for weighed material, whose proposal
quantity multiplied by the unit Bid price, has a value less than $20,000.

The verification will consist of one of the following methods and be at the
Contractor’s option:
1. Weigh a loaded truck on a separate certified platform scale designated by the

Contractor, for the purpose of scale verification.

Measurement and Payment

1-09

2. Weigh a vehicle that weighs at least 10,000 pounds on a separate certified scale and

then check the project scale with it.

3. Establish a certified fixed load weighing at least 10,000 pounds as a check-weight.

The certification shall consist of an affidavit affirming the correct weight of the
fixed load.

Should the scale verification check reveal a weight difference of more than 0.5 percent,
a second scale verification check shall be performed immediately. If the weight
differences of both comparison checks exceed the 0.5-percent limit and the scale has
been overweighing, the Contractor shall immediately stop weighing and the scale shall
be recertified at the Contractor’s expense. If the weight difference of both comparison
checks exceed the 0.5 percent limit and the scale is underweighing, it shall be adjusted
immediately. Contractor will not be compensated for any loss from underweighing.

Belt Scales – To test the accuracy of a belt-conveyor scale, the Contractor shall weigh five
or more payloads from sequential hauling units and compare these weights with weights
of the same payloads taken on a separate certified platform scale. If the test results
fluctuate, the Engineer may require more than five check loads. Conveyor weights will
be based on tonnage values taken from the sealed odometer at the beginning and end of
each check period.

If scale verification checks shows the scale has been under weighing, it shall be adjusted
immediately. The Contractor shall not be compensated for any loss from under weighing.

If scale verification checks show the scale has been overweighing, its operation will cease
immediately until adjusted.

Minor Construction Items – If the Specifications and Plans require weight measurement
for minor construction items, the Contractor may request permission to convert volume
to weight. If the Engineer approves, an agreed factor may be used to make this conversion
and volume may be used to calculate the corresponding weight for payment.

1-09.2(6) Payment

Unless specified otherwise, the Contracting Agency will pay for no materials received
by weight unless they have been weighed as required in this section or as required by
another method the Engineer has approved in writing.

The Contractor shall not be compensated for any loss from underweighing that is revealed
by scale verification checks.

If scale verification checks reveal that the scale is overweighing, then payment for
all material weighed since the last valid scale verification check will be adjusted. The
Contracting Agency will calculate the combined weight of all materials weighed after
the last verification check showing accurate results. This combined weight will then be
reduced for payment by the percentage of scale error that exceeds 0.5 percent unless the
Contractor demonstrates to the satisfaction of the Engineer that the defect in the scale
was present for a lesser period of time.

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Measurement and Payment

Unit Contract prices for the various pay items of the project cover all costs related to
weighing and proportioning materials for payment. These costs include but are not
limited to:
1.  Furnishing, installing, certifying, and maintaining scales;
2.  Providing a weigher to operate a Contractor-provided scale;
3.  Providing a weigher to operate a commercial scale, if necessary;
4.  Providing self-printing tickets, if necessary;
5.  Rerouting a truck for verification weighing;
6.  Assisting the Engineer with scale verification checks;
7.  Any other related costs associated with meeting the requirements of this section.

1-09.3

Scope of Payment

The payment provided for in the Contract shall be full payment to the Contractor for:
1. Furnishing all materials and performing all Work under the Contract (including

changes in the work, materials, or Plans) in a complete and acceptable manner;

2. All risk, loss, damage, or expense of whatever character arising out of the nature

or prosecution of the work; and

3. All expense incurred resulting from a suspension or discontinuance of the Work

as specified under the Contract.

The payment of any estimate or retained percentage shall not relieve the Contractor
of the obligation to make good any defective Work or materials.

Unless the Plans and Special Provisions provide otherwise, the unit Contract prices for
the various Bids items shall be full payment for all labor, materials, supplies, equipment,
tools, and all other things required to completely incorporate the item into the Work
as though the item were to read “In Place”.

If the “Payment” clause in the Specifications, for an item included in the Proposal, covers
and considers all Work and material essential to that item, then the Work or materials
will not be measured or paid for under any other item that may appear elsewhere in the
Proposal or Specifications.

Certain payment items appearing in these Specifications may be modified in the Plans
and Proposal to include:
1. The words “For Structure”, “For Concrete Barrier”, “For Bridge”, etc., with the intent

of clarifying specific use of the item; or

2. The words “Site (Site Designation)”, with the intent of clarifying where a specific

item of Work is to be performed.

Modification of payment items in this manner shall in no way change the intent of the
Specifications relating to these items.

Measurement and Payment

1-09

1-09.4

Equitable Adjustment

The equitable adjustment provided for elsewhere in the Contract shall be determined in
one or more of the following ways:
1. If the parties are able to agree, the price will be determined by using:

a. Unit prices; or
b. Other agreed upon prices;

2. If the parties cannot agree, the price will be determined by the Engineer using:

a. Unit prices; or
b. Other means to establish costs.

The following limitations shall apply in determining the amount of the equitable
adjustment:
1. The equipment rates shall be actual cost but shall not exceed the rates set forth in

the AGC/WSDOT Equipment Rental Agreement in effect at the time the Work is
performed as referred to in

Section 1-09.6

, and

2. To the extent any delay or failure of performance was concurrently caused by the

Contracting Agency and the Contractor, the Contractor shall be entitled to a time
extension for the portion of the delay or failure of performance concurrently caused,
provided it make such a request pursuant to

Section 1-08.8

; however, the Contractor

shall not be entitled to any adjustment in Contract price.

3. No claim for anticipated profits on deleted, terminated, or uncompleted Work

will be allowed.

4. No claim for consequential damages of any kind will be allowed.

1-09.5

Deleted or Terminated Work

The Engineer may delete Work by change order as provided in

Section 1-04.4

or may

terminate the Contract in whole or part as provided in

Section 1-08.10(2)

. When the

Contract is terminated in part, the partial termination shall be treated as a deletion
change order for payment purposes under this section.

Payment for completed items will be at unit Contract prices.

When any item is deleted in whole or in part by change order or when the Contract
is terminated in whole or in part, payment for deleted or terminated Work will be made
as follows:
1. Payment will be made for the actual number of units of Work completed at the unit

Contract prices unless the Engineer determines the unit prices are inappropriate for
the Work actually performed. When that determination is made by the Engineer,
payment for Work performed will be as mutually agreed. If the parties cannot agree
the Engineer will determine the amount of the equitable adjustment in accordance
with

Section 1-09.4

;

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Measurement and Payment

2. Payment for partially completed lump sum items will be as mutually agreed. If the

parties cannot agree, the Engineer will determine the amount of the equitable
adjustment in accordance with

Section 1-09.4

;

3. To the extent not paid for by the Contract prices for the completed units of

Work, the Contracting Agency will pay as part of the equitable adjustment those
direct costs necessarily and actually incurred by the Contractor in anticipation of
performing the Work that has been deleted or terminated;

4. The total payment for any one item in the case of a deletion or partial termination

shall not exceed the Bid price as modified by approved change orders less the
estimated cost (including overhead and profit) to complete the Work and less any
amount paid to the Contractor for the item;

5. The total payment where the Contract is terminated in its entirety shall not exceed

the total Contract price as modified by approved change orders less those amounts
paid to the Contractor before the effective date of the termination; and

6. No claim for damages of any kind or for loss of anticipated profits on deleted or

terminated Work will be allowed because of the termination or change order.

Contract time shall be adjusted as the parties agree. If the parties cannot agree, the
Engineer will determine the equitable adjustment for Contract time.

Acceptable materials ordered by the Contractor prior to the date the Work was
terminated as provided in

Section 1-08.10(2)

or deleted as provided in

Section 1-04.4

by the Engineer, will either be purchased from the Contractor by the Contracting Agency
at the actual cost and shall become the property of the Contracting Agency, or the
Contracting Agency will reimburse the Contractor for the actual costs connected with
returning these materials to the suppliers.

1-09.6

Force Account

The terms of the Contract or of a change order may call for Work or material to be paid
for by force account. If so, then the objective of this Specification is to reimburse the
Contractor for all costs associated with the Work, including costs of labor, small tools,
supplies, equipment, specialized services, materials, applicable taxes and overhead and
to include a profit commensurate with those costs. The amount to be paid shall be
determined as described in this section.
1. For Labor – Labor reimbursement calculations shall be based on a “Project Labor

List” (List) prepared and submitted by the Contractor and by any Subcontractor
before that firm commences force account Work. Once a List is approved by the
Engineer, it shall be used to calculate force account labor payment until a new List
is submitted and approved. The Engineer may compare the List to payrolls and other
documents and may, at any time, require the Contractor to submit a new List. The
Contractor may submit a new List at any time without such a requirement. Prior
payment calculations shall not be adjusted as a result of a new List.

Measurement and Payment

1-09

To be approved, the List must be accurate and meet the requirements of this
section. It shall include regular time and overtime rates for all employees (or
work classifications) expected to participate in force account Work. The rates
shall include the basic wage and fringe benefits, the current rates for Federal
Insurance Compensation Act (FICA), Federal Unemployment Tax Act (FUTA) and
State Unemployment Tax Act (SUTA), the company’s present rates for Medical Aid
and Industrial Insurance premiums and the planned payments for travel and per
diem compensation.

In the event that an acceptable initial List or requested revised List is not received
by the time that force account calculations are begun, the Engineer will develop a
List unilaterally, utilizing the best data available, that will be used until a Contractor’s
List is received and approved. Again, prior calculations, prepared using the Engineer’s
List, will not be revised as a result of differences with the Contractor’s List.

In addition to compensation for direct labor costs defined above, the Contracting
Agency will pay Contractor 29 percent of the sum of the costs calculated for
labor reimbursement to cover project overhead, general company overhead,
profit, bonding, insurance required by Sections

1-07.10

and

1-07.18

, Business &

Occupation tax, and any other costs incurred, except paid sick leave. The Contracting
Agency will pay the Contractor an additional 2 percent of the sum of the costs
calculated for labor reimbursement to cover the cost of paid sick leave. This amount
will include any costs of safety training and health tests, but will not include such
costs for unique force account Work that is different from typical Work and which
could not have been anticipated at time of Bid.

2. For Materials – The Contracting Agency will reimburse invoice cost for Contractor-

supplied materials. For the purpose of this provision, “Materials” shall include
those items incorporated into the Work, supplies used during the Work and items
consumed. This cost shall include freight and handling charges and applicable taxes.
Before Work is started, the Engineer may require the Contractor to obtain multiple
quotations for the materials to be utilized and select the vendor with prices and
terms most advantageous to the Contracting Agency.

The Contracting Agency will provide a list of the types and quantities of Contractor-
supplied materials witnessed by the Contracting Agency as being utilized in force
account Work. The list will be furnished promptly after the material is incorporated,
on a daily basis unless agreed otherwise. The Contractor may propose corrections
to the list and will supply prices for the materials and other costs and return the
list to the Contracting Agency. To support the prices, the Contractor shall attach
valid copies of vendor invoices. If invoices are not available for materials from the
Contractor’s stocks, the Contractor shall certify actual costs (at a reasonable level)
by affidavit. The Engineer will review the prices and any Contractor-proposed
corrections and, if reasonable, approve the completed list. Once approved, the prices
will be utilized in the calculation of force account reimbursement for materials.

If, in the case of non-invoiced materials supported by Contractor affidavit, the price
appears to be unreasonable, the Engineer will determine the cost for all or part of
those materials, utilizing the best data available.

Page 1-132

Measurement and Payment

The Contracting Agency reserves the right to provide materials. In this case, the
Contractor will receive no payment for any costs, overhead, or profit arising from
the value of the materials themselves. Additional costs to handle and place the
Agency-furnished material shall be compensated as described in this Specification.

In addition to compensation for direct materials cost, the Contracting Agency will
pay the Contractor 21 percent of the sum of the costs calculated for materials
reimbursement to cover project overhead, general company overhead, profit,
bonding, insurance, required by Sections

1-07.10

and

1-07.18

, Business &

Occupation tax, and any other costs incurred.

3. For Equipment – The Contracting Agency will reimburse the Contractor for the

cost of equipment utilized in the Work. The equipment provided by the Contractor
shall be of modern design and in good working condition. For the purpose of this
provision, “provided” shall mean that the equipment is owned (either through
outright ownership or through a long-term lease) and operated by the Contractor
or Subcontractor or that the equipment is rented and operated by the Contractor
or Subcontractor. Equipment that is rented with operator shall not be included
here, but shall be considered a service and addressed according to Subsection 4 of
this provision.

The amount of payment for any Contractor-owned equipment that is utilized shall
be determined according to the version of the AGC/WSDOT Equipment Rental
Agreement which is in effect at the time the force account is authorized. The rates
listed in the Rental Rate Blue Book (as modified by the current AGC/WSDOT
Equipment Rental Agreement) shall be full compensation for all fuel, oil, lubrication,
ordinary repairs, maintenance, and all other costs incidental to furnishing and
operating the equipment except labor for operation.

Payment for rented equipment will be made on the basis of a valid invoice, covering
the time period of the Work. Before Work is started, the Engineer may require the
Contractor to obtain multiple quotations for the rental of equipment to be utilized
and select the vendor with prices and terms most advantageous to the Contracting
Agency. In the event that prior quotations are not obtained and the vendor is not
a firm independent from the Contractor or Subcontractor, then after-the-fact
quotations may be obtained by the Engineer from the open market in the vicinity and
the lowest such quotation may be used in place of submitted invoice.

In addition to the payments for Contractor-owned and rented equipment, one or
more lump-sum payments may be made for small tools. The amount to be paid shall
be determined as outlined in the AGC/WSDOT Equipment Rental Agreement.

The Contracting Agency will add 21 percent to equipment costs to cover project
overhead, general company overhead, profit, bonding, insurance, required by
Sections

1-07.10

and

1-07.18

, Business & Occupation tax, and any other costs

incurred. This markup will be over and above those equipment costs and will not
be adjusted for any equipment overhead amounts included in the Blue Book rates.

Copies of the AGC/WSDOT Equipment Rental Agreement will be maintained on
the Contracting Agency’s website at

www.wsdot.wa.gov

Measurement and Payment

1-09

4. For Services – Compensation under force account for specialized services shall be

made on the basis of an invoice from the providing entity. A “specialized service” is a
work operation that is not typically done by worker classifications as defined by the
Washington State Department of Labor and Industries and by the Davis Bacon Act,
and therefore bills by invoice for work in road, bridge and municipal construction.
Before Work is started, the Engineer may require the Contractor to obtain multiple
quotations for the service to be utilized and select the provider with prices and terms
most advantageous to the Contracting Agency. In the event that prior quotations are
not obtained and the service invoice is submitted by a Subcontractor, then after-
the-fact quotations may be obtained by the Engineer from the open market in the
vicinity and the lowest such quotation may be used in place of the submitted invoice.

Except as noted below, the Contracting Agency will pay the Contractor an additional
21 percent of the sum of the costs included on invoices for specialized services
to cover project overhead, general company overhead, profit, bonding, insurance,
required by Sections

1-07.10

and

1-07.18

, Business & Occupation tax, and any other

costs incurred.

When a supplier of services is compensated through invoice, but acts in the
manner of a Subcontractor, as described in Subsection 6 of this provision, then
markup for that invoice shall be according to Subsection 6, “Contractor Markup on
Subcontractors’ Work”.

5. For Mobilization – Force account mobilization is defined as the preparatory Work

performed by the Contractor including procurement, loading and transportation of
tools and equipment, and personal travel time (when such travel time is a contractual
obligation of the Contractor or a customary payment for the Contractor to all
employees). Mobilization also includes the costs incurred during demobilization.
Pro-rata adjustments may be made when the mobilization applies to both force
account and other Contract Work. The Contracting Agency will pay for mobilization
for off-site preparatory Work for force account items provided that notice has
been provided sufficiently in advance to allow the Engineer to witness the activity,
if desired.

Any costs experienced during mobilization activities for labor, equipment, materials
or services shall be listed in those sections of the force account summary and
paid accordingly.

6. For Contractor Markup on Subcontractor’s Work – When Work is performed

on a force account basis by one or more approved Subcontractors, by lower-tier
subcontractors or suppliers, or through invoice by firm(s) acting in the manner of
a Subcontractor, the Contractor will be allowed an additional markup, from the
table below, applied to the costs computed for Work done by each Subcontractor
through Subsections 1, 2, 3, and 4, to compensate for all administrative costs,
including project overhead, general company overhead, profit, bonding, insurance
required by Sections

1-07.10

and

1-07.18

, Business & Occupation tax, and any other

costs incurred.

Standard Specifications for Road, Bridge, and Municipal Construction 2020 (M 41-10) - page 22