|Division 100 – General Provisions|
|Section 101 – General Information|
|101.04 Inquiries Regarding the Project|
|Section 102 – Bidding Requirements and Conditions|
|102.01 Qualification to Bid|
|102.02 Bidder Registration and Downloading of the Proposal Documents|
|102.03 Revisions Before Submitting a Bid|
|102.04 Examination of Contract and Project Limits|
|102.05 Interpretation of Quantities in the Proposal|
|102.06 “If and Where Directed”|
|102.07 Preparation of the Bid|
|102.08 Balanced Bids|
|102.09 Proposal Bond|
|102.10 Submission of Bids|
|102.11 Withdrawal of Bids|
|102.12 Public Opening of Bids|
|102.13 Consideration of Bids|
|102.14 Irregular Bids|
|102.15 Disqualification of Bidders|
|102.16 Rejection of All Bids|
|Section 103 – Award and Execution of Contract|
|103.01 Award of Contract|
|103.02 Cancellation of Award|
|103.03 Release of Proposal Bond|
|103.04 Execution of the Contract|
|103.05 Escrow of Bid Documents|
|103.06 Failure to Execute Contract|
|103.07 Acquisition of Documents|
|Section 104 – Scope of Work|
|104.02 Value Engineering|
|104.02.01 Purpose and Scope|
|104.02.04 Final Documents|
|104.03 Changes to the Contract|
|104.03.01 Authority to Make Changes|
|104.03.02 Protests to Change Orders|
|104.03.03 Types of Changes|
|104.03.04 Contractual Notice|
|104.03.05 Unrecoverable Costs|
|104.03.06 Unacceptable Cost Calculation Methods|
|104.03.07 Tracking Costs|
|104.03.08 Force Account|
|104.03.09 Delay Damages|
|Section 105 – Control of Work|
|105.01 Authority of the Department|
|105.02 Responsibilities of the Contractor|
|105.02.01 Labor and Equipment|
|105.02.03 Subcontracted Work|
|105.02.04 Fabricators and Suppliers|
|105.03 Conformity with Contract|
|105.04 Plans and Specifications|
|105.05 Working Drawings|
|105.06 Cooperation with Others|
|105.07 Cooperation with Utilities|
|105.07.01 Working in the Vicinity of Utilities|
|105.07.02 Work Performed by Utilities|
|105.08 Environmental Protection|
|105.09 Load Restrictions|
|105.10 Use of Explosives|
|Section 106 – Control of Material|
|106.01 Source of Supply and Quality Requirements|
|106.02 Department-Furnished Material|
|106.03 Foreign Materials|
|106.04 Materials Questionnaire|
|106.05 Materials Inspections, Tests, and Samples|
|106.06 Plant Inspection|
|106.07 Certification of Compliance|
|106.08 Unacceptable Material|
|106.09 Substitutes for Proprietary Items|
|Section 107 – Legal Relations|
|107.01 Legal Jurisdiction|
|107.01.01 Applicable Law|
|107.01.02 Permits, Licenses, and Approvals|
|107.01.03 Sovereign Immunity|
|107.02 Discrimination in Employment on Public Works|
|107.03 Affirmative Action, Disadvantaged Business Enterprises, or Emerging Small Business Enterprise|
|107.04 New Jersey Contractual Liability Act|
|107.05 Limitations of Liability|
|107.06 Personal Liability of Public Officials|
|107.08 Non Waiver|
|107.09 Independent Contractor|
|107.10 Non-Third Party Beneficiary Clause|
|107.11 Risks Assumed by the Contractor|
|107.12 The Contractual Claim Resolution Process|
|107.12.01 Satisfying the Notice Requirements|
|107.13 Litigation of Claims by the Contractor|
|107.14 Patented Devices, Materials, and Processes|
|107.16 Recovery of Monies by the State|
|107.17 Communication with the news media|
|Section 108 – Prosecution and Completion|
|108.02 Commencement of Work|
|108.03 Daily Communications|
|108.04 Work Site and Storage|
|108.05 Sanitary and Safety Provisions|
|108.05.02 Safety Program|
|108.06 Night Operations|
|108.07 Traffic Control|
|108.07.02 Changes to the Traffic Control Plan (TCP)|
|108.08 Lane Occupancy Charges|
|108.09 Maintenance Within the Project Limits|
|108.10 Contract Time|
|108.11 Modifications to Contract Time|
|108.11.01 Extensions to Contract Time|
|108.11.02 Reductions to Contract Time|
|108.12 Right-Of-Way Restrictions|
|108.13 Suspension of Work|
|108.14 Default and Termination of Contractor’s Right to Proceed|
|108.15 Termination of Contract|
|108.15.01 For Convenience|
|108.15.02 For Cause|
|108.16 Partial Acceptance|
|108.17 Interim Completion|
|108.18 Substantial Completion|
|108.19 Completion and Acceptance|
|108.20 Liquidated Damages|
|Section 109 – Measurement and Payment|
|109.01 Measurement of Quantities|
|109.02 Scope of Payment|
|109.03 Payment for Force Account|
|109.04 Payment for Delay Damages|
|109.06 Materials Payments and Storage|
|109.07 Bonds Posted in Lieu of Retainages|
|109.08 As-Built Quantities|
|109.10 Contractor’s Compliance with N.J.S.A. 34:11-56.25, et seq|
|109.11 Final Payment and Claims|
|109.12 Ethics Standards and Conflicts of Interest|
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.
The following abbreviations are used in the Contract:
|AASHTO||American Association of State Highway and Transportation Officials|
|ACI||American Concrete Institute|
|AISC||American Institute of Steel Construction, Inc.|
|AISI||American Iron and Steel Institute|
|ANSI||American National Standards Institute|
|API||American Petroleum Institute|
|AREMA||American Railway Engineering and Maintenance-of-Way Association|
|ASCE||American Society of Civil Engineers|
|ASTM||ASTM (American Society for Testing and Materials) International|
|AWPA||American Wood Protection Association|
|AWS||American Welding Society|
|AWWA||American Water Works Association|
|CIAP||Construction Industry Advancement Program of New Jersey|
|CRSI||Concrete Reinforcing Steel Institute|
|DBE||Disadvantaged Business Enterprise|
|ESBE||Emerging Small Business Enterprise|
|EEI||Edison Electric Institute|
|EPA||United States Environmental Protection Agency|
|FHWA||Federal Highway Administration|
|FSS||Federal Specifications and Standards, General Services Administration|
|HMA||Hot Mix Asphalt|
|HPC||High Performance Concrete|
|ICEA||Insulated Cable Engineers Association, Inc.|
|ISO||International Organization for Standardization|
|ITE||Institute of Transportation Engineers|
|ITS||Intelligent Transportation Systems|
|MSDS||Material Safety Data Sheet|
|MUTCD||Manual on Uniform Traffic Control Devices|
|NCHRP||National Cooperative Highway Research Program|
|NEC||National Electric Code|
|NEMA||National Electrical Manufacturers Association|
|NIST||National Institute of Standards and Technology|
|N.J.A.C.||New Jersey Administrative Code|
|N.J.S.A.||New Jersey Statutes Annotated|
|NJACI||New Jersey Chapter American Concrete Institute|
|NJDEP||New Jersey Department of Environmental Protection|
|NOAA||National Oceanic and Atmospheric Administration|
|NJDOT||New Jersey Department of Transportation|
|NPCA||National Precast Concrete Association|
|NTCIP||National Transportation Communications for ITS Protocol|
|OSHA||Occupational Safety and Health Administration|
|PCI||Precast/Prestressed Concrete Institute|
|QPL||Qualified Products List|
|RAP||Reclaimed Asphalt Pavement|
|SBE||Small Business Enterprise|
|SESC||Soil Erosion and Sediment Control|
|SI||International System of Units|
|SSPC||Society of Protective Coatings|
|USACE||United States Army Corps of Engineers|
|USCG||United States Coast Guard|
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:
Change Order. A written order issued by the Department to the Contractor after execution of the Contract authorizing one or more of the following:
Completion. When all of the following have occurred:
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:
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:
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:
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:
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:
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.
Submit inquiries regarding discrepancies, errors, or omissions, or concerns regarding the intent or meaning of the Contract to the Department as follows:
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.
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:
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.
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.
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:
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.
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.
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.
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.
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.
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. 16:44-7.3(e) and that are not substantiated by a valid power of attorney executed by the Surety.
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:
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.
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.
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.
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.
The Department will consider a bid irregular and will reject it if the Department determines that the bid contains a material defect.
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:
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
The Department will consider VE proposals only after Award of the Contract and only in accordance with the following terms and conditions:
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:
If the final VE proposal is approved, submit working drawings for approval. The Department will designate the number of sets to be submitted.
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.
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:
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.
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.
The Department will address all changes under one or a combination of the following types:
C = Q × (PB – PR)Where:
C = Cost.
PB = Bid price.
PR = Renegotiated price.
Q = Quantity of work performed at the renegotiated price.
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:
For all changes, the Department will not make payment or modify Contract Time for the following:
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:
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:
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.
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:
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:
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.
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:
The RE will decide questions that arise concerning the following:
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.
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:
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.
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:
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.
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.
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.
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.
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.
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:
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
|Table 105.05 1 – Working Drawing Submission Category|
|Breakaway I-Beam GA Sign Support Posts||Catalog Cuts (related to landscape Items)|
|Bridge Drainage||Change in Structural Steel Details|
|Bridge Railing and Fencing Anchorage System||Change of Prestressed Concrete Strand Patterns|
|Catalog Cuts||Demolition Plans|
|Composite Piles||Erection Plans|
|DMS Sign Support Structure||High Load Multi-Rotational (HLMR) Bearings|
|DMS Standard Ground Mounted||Isolation Bearings|
|Elastomeric Bearings Pads||ITS System Drawings, including Block Diagrams|
|Electrical Items Not Pre-Qualified||Machinery and Electrical Items for Movable Bridges|
|Expansion Deck Joint Assembly Systems||Mechanically Stabilized Earth (MSE) Walls|
|Modular Expansion Joint Assembly||Other work shown on the Plans as conceptual|
|Precast Prestressed Concrete Beams and Piles Fabrication||Precast Concrete Arch Structures|
|Reinforced Elastomeric Bearings||Precast Concrete Box Culverts|
|Sign Legends||Prefabricated Modular Walls|
|Sign Support Structures||Stay-In-Place Forms|
Structural Steel Fabrication
|Temporary Sheeting and Cofferdams|
|Value Engineering Plans|
Submit working drawings for certification and approval as follows:
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.
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.
Fiber Optic Markout Form is available at:
http://www.state.nj.us/transportation/eng/elec/ITS/access.shtmWhen 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.
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:
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.
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:
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.
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.
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.
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.
Comply with the appropriate statutes and regulations concerning the use of foreign materials as follows:
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.
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).”
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.
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:
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.
Submit manufacturer’s Certifications of Compliance stating that the materials and/or assemblies fully comply with the requirements of the Contract when required by the Contract or requested by the Department.
Ensure that Manufacturer’s Certification of Compliance contains the following information:
Before incorporating the materials into the Project, obtain 3 copies of the manufacturer's Certifications of Compliance for materials, components, and manufactured items that are accepted by certification. Retain 1 copy and submit 2 copies to the RE. With the Certification of Compliance, provide a transmittal identifying the Item for which it is submitted. For products that contain steel or iron, attach additional documents as required by the certification procedures as specified in 106.07.02. The Contractor may submit the Certifications of Compliance electronically to the RE in a scanned document. Include the transmittal and all backup documentation in the scanned document.
The Department has the right to sample and test materials or assemblies accepted on the basis of Certifications 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.
The Department will not make payment for an Item for which material is accepted on the basis of a Certification of Compliance until the RE has received the required Certification of Compliance and has inspected and accepted the material or assembly.
The Department will not make payment for work containing steel or iron materials until the RE has received the required DC-17 and step Certifications of Compliance and has inspected and accepted the material or assembly.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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:
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.
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:
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.
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:
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:
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.
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.
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.
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.
Whenever the Contract provides that:
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.
Do not communicate with the news media or issue a news release without obtaining a prior written approval from the Department.
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:
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:
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.
Within 15 days from the date of the execution of the Contract and before beginning construction operations, submit to the RE the following:
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:
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.
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:
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.
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.
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.
|Table 108.05.01-1 Number of Facilities|
| Number of Male
| Minimum No. of
Facilities for Male Use
| Number of Female
| Minimum No. of
Facilities for Female Use
|1 - 15||1||1 - 15||1|
|16 - 35||2||16 - 35||2|
|36 - 55||3||36 - 55||3|
|56 - 80||4||56 - 80||4|
|81 - 110||5||81 - 110||5|
|111 - 150||6||111 - 150||6|
|Over 150||61||Over 150||61|
|1||Provide one additional facility for each additional 40 employees of each sex.|
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.
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:
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.
|Table 108.06-1 Minimum Illuminance Levels for Night Operations|
|Work Description||Minimum Level (Foot Candles)||Minimum Lighting Area|
Landscaping (seeding and sodding)
Mechanical sweeping and cleaning
|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|
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|
Sawcutting and Sealing Joints
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.
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:
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.
Submit requests for changes to the TCP to the RE for approval at least 30 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.
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.
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:
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.
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.
|Table 108.11.01-1 Anticipated Number of Days Lost per Month for Weather Sensitive Activities|
|Month||Number of Days Lost|
|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.|
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.
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.
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.
The RE has the right to suspend the Work, wholly or in part, for such period as deemed necessary for the following:
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:
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
|Item Price||Significant Figure|
|$50.00 to $500.00||0.1|
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.
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.
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:
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.
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:
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:
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.
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 if such payment exceeds $25,000; 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:
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.
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.
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.
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:
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.
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.
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.
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.