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DISPUTE REVIEW BOARD HEARING

DISPUTE REVIEW BOARD HEARING. WC/Subcontractor Request for Payment and Claim – SS Granular Backfill April 19 th , 2013. History.

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DISPUTE REVIEW BOARD HEARING

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  1. DISPUTE REVIEW BOARD HEARING WC/Subcontractor Request for Payment and Claim – SS Granular Backfill April 19th, 2013

  2. History • Early 2010 – Final Mitchell Interchange Project Plans developed, Project Advertised – included 204 removal items related to storm sewer as pay plan quantity item, included backfill granular for subgrade improvement. • June 15, 2010 - Mandatory Pre Bid Coordination meeting • Identification of Article 6 Contract Award and Execution • Bid escrow • Three lowest bidders required to submit basis of bid on July 29th, 2010 • Applies to all subcontractors w/costs greater than $500,000 • Project kickoff & initial work plan workshop • Contractor presentation of its conceptual work plan for the project. • Subcontractors • Attach the list of all subcontractors that are intended for this project and the items of work they shall perform. • Dispute Review Board • The department also provided opportunities for contractors to inquire for clarity – responses were posted on the department website. No inquiries were made related to granular backfill or storm sewer removal.

  3. History • July 27, 2010 - WC is successful Bidder • Aug 16, 2010 - Project Kickoff Meetings • Aug 30, 2010 – Request to Sublet Submitted • Sept. 8, 2010 – WC submits CPM Baseline Schedule and Narrative • Sept. 9, 2010 - Pre Construction Meeting • Sept. 15, 2010 - Conditional Notice To Proceed • 51 Pay Estimates • 93 Progress Meetings • 25 Leadership partnering Meetings through July ’12 • Aug. 8, 2012 – Verbal request by WC for payment of backfill granular. Department verbal denial. Email denial August 9th, 2012 – with direction to file a formal claim if WC believed the payment request had merit. • August 16, 2012 – WC serial letter rec’d w/letter from subcontractor requesting payment • August 22, 2012 - Department response denying request.

  4. Description of Claim • WC is claiming that because the contract required the use of granular backfill for trench backfill associated with storm sewer removal, and because there is an item of Backfill Granular in the plan, specified for use and payment as sub-grade improvement, that the department is then required to pay for their accumulated 15,826.85 CY of “Backfill Granular associated with storm sewer removals.

  5. Department Response • The department has consistently denied WCs request for payment for backfill of trenches related to storm sewer removal with sound reference to Standard Specifications 204, 102.4, 102.5, 104.2.1 (2), 104.3, 105.4, 105.5.1, 108.1, SP Article 21. Pay Plan Quantity supplementing 109.1.1.2, and SP Article 19. Contractor Notification.

  6. DEPARTMENT POSITION • Special Provisions/Proposal • Plan • Standard Specifications

  7. DEPARTMENT POSITION • Department Position is reinforced with: • WC Submitted Request to Sublet • WC Submitted Sub-contractor Pre Proposal Pricing Schedule/Base Bid/Exclusions • WC Actions through the life of the contract • WC Representations Prior to Claim Submittal

  8. The Proposal

  9. SPECIAL PROVISIONS • 1. Storm Sewer Removal is designated a Pay Plan Quantity Item. • SP Article 19: • 109.1.1.2 Bid Items Designated as Pay Plan Quantity • If the schedule of items designates a bid item with a **P** in the title, the department will not measure that bid item. The department will use the plan quantity, the approximate quantity shown on the schedule of items, for payment unless a contract revision affects a designated bid item.

  10. SPECIAL PROVISIONS • In accordance with Article 19, the department will not measure storm sewer removal. • In accordance with the contract, the department used the plan quantity for payment. • Article 19. identifies circumstances in which the department would alter payment for a “Pay plan quantity” item. • The department identifies that those circumstances are not met. • Payment for storm sewer removal items is based upon the approximate quantity in the schedule of items and, with this contract, there are no exceptions.(eg. backfill)

  11. Standard Specifications – Section 204 • 204.3.1.2 Backfilling (Construction) • (1) Backfill all trenches, holes, and pits resulting from breaking down, removing, or abandoning miscellaneous structures as specified for backfilling trenches in 203.3.5. • (2) Unless the contract specifies otherwise, backfill to the elevation of the natural ground, the proposed finished earth subgrade, or finished slopes, as necessary due to the location of the removed structure. • 204.3.2.2 Removing Items • (14) Under the Removing Storm Sewer bid items, remove existing storm sewer. Backfill all resulting trenches with granular backfill conforming to 209.2. • 204.4 Measurement • (19) The department will measure the Removing Storm Sewer bid items by the linear foot acceptably completed, measured along the centerline of the pipe. • 204.5 Payment • 204.5.1 General • (2) Payment for removing or abandoning miscellaneous structures is full compensation for breaking down, removing, closing, plugging, or sealing; for removing and disposing of headwalls; for obtaining any required work permits; for hauling and disposing of materials; for providing any required bentonite, soil, brick, concrete block, or concrete; for restoring the roadway cross-section; and, unless the contract specifies granular backfill, for backfilling. • (3) If granular backfill is required for work under section 204 bid items, the department will pay for that backfill as follows: 1. If the contract specifies granular backfill, at the unit price for the Backfill Granular bid item. 2. If the contract does not specify granular backfill, that backfill is incidental to the work. 3. If the contract does not specify granular backfill but granular backfill is later found necessary and required, the department will pay for that backfill as extra work.

  12. Standard Specifications – Section 204 • 204.5 Payment • 204.5.1 General • (2) Payment for removing or abandoning miscellaneous structures is full compensation for breaking down, removing, closing, plugging, or sealing; for removing and disposing of headwalls; for obtaining any required work permits; for hauling and disposing of materials; for providing any required bentonite, soil, brick, concrete block, or concrete; for restoring the roadway cross-section; and, unless the contract specifies granular backfill, for backfilling. • (3) If granular backfill is required for work under section 204 bid items, the department will pay for that backfill as follows: 1. If the contract specifies granular backfill, at the unit price for the Backfill Granular bid item. 2. If the contract does not specify granular backfill, that backfill is incidental to the work. 3. If the contract does not specify granular backfill but granular backfill is later found necessary and required, the department will pay for that backfill as extra work.

  13. Standard Specifications – Section 204 • For Storm Sewer Removals Backfill Granular is required • For 204 items - Payment includes backfilling, unless the contract specifies granular backfill • If granular backfill is required for work under 204 bid items, the department will pay for that backfill as follows: 1. If the contract specifies granular backfill, at the unit price for the Backfill Granular bid item. 2. If the contract does not specify granular backfill, that backfill is incidental to the work. INFEFERENCE - 204 Items and PAYMENT • Required, but 204 items not specified - no qty extension item to bid.

  14. THE PLAN – Backfill Granular

  15. THE PLAN – Removing Storm Sewer

  16. THE PLAN • Quantities as given in the Miscellaneous quantities schedule within the plan specify 1000 CY of item 209.0100, Backfill Granular, specified for Pavement Subgrade Improvement • The plan quantity sheets specify the character and general conditions of the work as subgrade improvement. • Understanding the variable nature of subgrade soil conditions, the roadway and station location was identified as undistributed.

  17. THE PLAN • No Quantities of Backfill Granular were specified in the plan Miscellaneous quantities schedule of items for any section 204 bid items • The plan does not specify quantities or, by extension, payment of backfill granular for section 204 bid items. • The contract does not specify quantities or, by extension, payment of Backfill Granular for section 204 bid items.

  18. THE PLAN • . The department is consistent with 204.5.1(3) 2. “If the contract does not specify granular backfill, that backfill is incidental to the work.” The department identifies that “specify” is not defined in Spec 101.3 Definitions, but Webster’s dictionary provides the following definition: “To name or state explicitly or in detail”.

  19. THE PLAN • . The contract and plans do not state explicitly that granular backfill will be paid as part of section 204 work. WC has failed to identify that the contract explicitly states that granular backfill will be paid for as part of section 204 work.

  20. Specify? • Hypothetical Example

  21. THE PLAN • The omission of a quantity of backfill granular for section 204 bid items within the accumulation for the item represents the intent of the contract. It is not specified.

  22. THE PLAN • . Consistent with Spec Section 105.4, Coordination of the Contract Documents, if there is a discrepancy between documents, the governing order is as follows: • 1. Addenda. • 2. Special Provisions. • 3. Plans. • 4. Additional Special Provisions • 5. Standard Specifications. • As the contract plans have governing order over standard specifications, and the plans do not specify quantities or payment of Backfill Granular for section 204 bid items, the plans provide clarity - and have governing order - that Backfill Granular is incidental to the section 204 bid item(s).

  23. Black and White • A contractor presented with the proposal, the special provisions, the standard specifications, and the plan can only come to one objective conclusion. Backfill Granular, required as part of storm sewer removals, is incidental to the removal item. The answer is black and white. A contractor needs to seek out and create any gray when presented with the contract documents.

  24. THE PROPOSAL/Section 102.4Contractor Responsibilities • Consistent with Standard Spec 102.4 Interpreting Bid Proposal Quantities, WC submitted unit bid prices for the estimated quantities as given in the schedule of items. • 102.4 Interpreting Bid Proposal Quantities • (1) Submit unit bid prices for the estimated quantities as given in the schedule of items. These quantities are approximate and the department only uses them for the comparison of bids. Do not plead misunderstanding or deception because of these quantities as to the character, location, or other conditions pertaining to the work.

  25. THE PROPOSAL/Section 102.5Contractor Responsibilities • 102.5 Examining Contract Documents and Work Site • (1) Carefully examine the contract documents and perform a reasonable site investigation before submitting a proposal. Submitting a proposal is an affirmative statement that the bidder has examined the contract documents, investigated the site, and is satisfied as to the character, quality, quantities, and the conditions the bidder will encounter in performing the work….

  26. THE PROPOSAL/Section 102.5Contractor Responsibilities • WC submitted a proposal, an affirmative statement that they examined the contract documents and were satisfied as to the character, quantities, and the conditions they would encounter in performing the work.

  27. The Proposal • WC was satisfied at the time of submitting the proposal that the quantities were sufficient to perform storm sewer removals. This applies to the fact that that there are no quantities shown w/respect to Backfill Granular associated with storm sewer removals.

  28. Department Position Summary • The department clearly identified that: • Storm Sewer Removal Items are a PPQ Item whose payment is based solely on the plan qty • The contract does not specify granular backfill for payment related to 204 bid items • The governing order of the plan within the contract documents clarifies any discrepancy between documents – Backfill Granular is not accumulated for payment related to 204 Bid Items

  29. ADDITIONAL SUPPORT FOR POSITION • Department Position Reinforced with: • Request to Sublet • Subcontractor Pricing Schedule • WC Actions through the life of the contract representing intent • WC Representations Prior to Claim Submittal

  30. Additional Support - REQUEST TO SUBLET • Request to sublet • Backfill granular was not quoted by the subcontractor. • Backfill Granular was not an item in the contractors request to sublet • State will be paying plan quantity for work performed • Credits for Backfill supplied by others???

  31. Additional Support - REQUEST TO SUBLET • Request to sublet • If backfill granular was an item WC intended to get paid for, the request to sublet would have reflected the same

  32. WC Submitted Request to Sublet

  33. WC Submitted Request to Sublet

  34. Additional Support - Subcontractor Pricing Schedule • 2. Subcontractor Pre Proposal Pricing Schedule clarifies that an exclusion for imported granular as part of the contract is invalid as support. The pricing for removal items within this same document is more than $230K less than contract costs. (HANDOUT)

  35. ALL BIDS

  36. ALL BIDS COMPARISON

  37. Unit Cost ComparisonContract Vs. DK Pre Contract Schedule of Pricing

  38. Additional Support - WC Actions Represent Intent • 3. WC Actions through the life of the contract represent intent: • Initial Work Plan – Approach to Work • Baseline CPM – Narrative • Weekly Progress • Contract Revisions – Storm Sewer Removals Added at Unit Cost • Measurement

  39. Baseline CPM Narrative • Edgerton Contractors will mill the existing asphalt and then break the pavement through the use of an RMI machine out ahead of their grading operations. The RMI will break the pavement in such a way to produce select crushed for the project. In most cases DK will follow pavement breaking operations with their storm sewer crews. Multiple storm sewer crews will be used to meet the project schedule. At times the crews may have to work at night to complete work on time. DK will excavate the broken pavement, place it to the side, install their storm sewer, and backfill up to subgrade. Edgerton will then follow the storm sewer operations. In deeper cut areas at Layton and Grange Avenues, Edgerton Contractors will grade out the area and place select crushed prior to placing storm sewer.

  40. Daily Progress

  41. Contract Revisions • Plan Revision 4 – WAF 0082, 3/4/11 • Department added 558 LF of Storm Sewer Removal • No Backfill Granular quantities were modified • WC provided no exceptions to use of Plan Unit Costs

  42. WC Actions - Measurement • If it was an item WC intended to get paid for, they would have measured trenches in place. WC never accumulated any measurement of material placed into Removal trenches until after the work was complete.

  43. Additional Support for Department Position • 4. WC Representations Prior to Claim Submittal • Edgerton Contractors identification that nothing was in their bid for storm sewer removals • Edgerton Contractors statement that Edgerton assumed that whoever was doing the removals was doing the backfill • WCs subcontractor not asked to quote the item • WCs subcontractor understanding at bid that granular backfill for storm sewer removals would be done by someone else – unless spoils were going in the non-structural area.

  44. EXCEPTING THE CLARITY THE PLAN/PROPOSAL PROVIDES • If the department’s interpretation is found to be incorrect regarding the PPQ nature of the item and the clear representation in the plan that no quantities or payment of backfill granular are identified for 204 bid items, the department provides two additional arguments.

  45. ADDITIONAL ARGUMENTS • WC failed to comply with Notice Requirements • WC failed to comply with subletting requirements

  46. NOTICE REQUIREMENTSSTANDARD SPEC 104.2.1 • 104.2.1 General • (2) The contractor shall notify the engineer if the contractor believes a revision to the contract is necessary. Whenever the words notice, notification, or notify are used in 104.2 with reference to the contractor, the contractor shall provide notice as specified in 104.3.

  47. NOTICE REQUIREMENTSSPECIAL PROVISION ARTICLE 19 • 104.3.3 Contractor Initial Written Notice • If required by subsection 104.2 of the standard specifications, or if the contractor believes that the department’s action, the department's lack of action, or some other situation results in or necessitates a contract revision, promptly provide a written notice to the engineer. At a minimum, provide the following: • 1. A written description of the nature of the issue. • 2. The time and date of discovering the problem or issue. • 3. If appropriate, the location of the issue.

  48. STANDARD SPEC 104.2.1 • 104.2.2 Issuing Contract Change Orders • 104.2.2.1 Change Orders for Extra Work • (1) The department will issue a contract change order to accomplish extra work as defined in 101.3.

  49. Extra Work? • Extra work : • All work performed by the contractor, with approval of the engineer, that does not appear in the proposal or contract as a specific bid item accompanied by a unit price, and that is not included under the price bid for other bid items in the contract. Extra work may also consist of • additions to, or changes in, design of contract bid items or portions of contract bid items……….

  50. EXTRA WORK • The department maintains that granular backfill is included under the price bid for storm sewer removals, however – again – if the board finds this assessment to be incorrect, the department identifies that backfkill granular for storm sewer removals does not appear in the contract with an ability to include a unit price extension.

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