Disclaimer

1. Disclaimer The information contained in this presentation is not part of any contract between MnDOT and any contractor, nor will it create an implied term in any such contract.  No contractor is entitled to rely on the information herein for support of a claim or any other purpose.   This is information of a general nature, intended only to provide a brief introduction to the topics referenced – it is by no means complete or comprehensive.  Viewing this material is not a substitute for a contractor reviewing actual contract documents and consulting with its own legal counsel about the content of such contract documents.

2. Specification Book Training Minnesota DOT Division 1 2

3. Introduction Over the last 3 years, MnDOT has completely rewritten its standard specifications. Though almost every sentence in the book has been revised, some of the most significant revisions were made to Division I.

4. Key Division 1 Revisions Within Division I, the most significant revisions were made to the provisions governing changes, schedules, time extensions, claims, compensation, and the definitions associated with these provisions.

5. Key Division 1 Revisions The sections that were the focus of the Division 1 revisions were: 1103, 1205, 1402, 1403, 1517, 1806, 1807, 1808, 1809, 1903, 1904, and 1905.

6. The Active Voice In addition to significant revisions to content, Division 1 was also rewritten in the active voice.

7. Today’s English Lesson The “voice” of a sentence refers to the relationship of the verb to the other parts of the sentence.

8. Today’s English Lesson “Voice” comes in two basic “flavors” ACTIVE VOICE PASSIVE VOICE (Unless you count Yoda’s voice – “Three voices there are.”)

9. Today’s English Lesson In a passive sentence, the subject of the clause doesn’t perform the action of the verb. This is because a passive sentence either puts the action (the verb) first and the actor (the subject) second, or leaves the actor out altogether, making it hard for a reader to understand who is doing what to whom.

10. Example of a Passive Sentence “Extra Work shall be performed in accordance with these Specifications as they apply to the particular class of work involved, unless otherwise stipulated in the agreement authorizing the Extra Work.” 30 Words

11. The English Lesson Continued In a passive sentence, the actor is often omitted. As a consequence, it can be a way of dodging responsibility and greatly detracts from clarity, particularly in a specification. (Consequently, it’s a staple of politicians.)

12. The 5 “C’s” of Specifications Clear Concise Complete Correct Consistent

13. What’s Wrong with the Passive Voice? It adds unnecessary words. (It’s not concise.) It fails to say clearly who will do what. (It’s not clear.)

14. The Active Voice A sentence written in the active voice is the solution to the problems of the passive voice.

15. The Active Voice In a sentence written in the active voice, the actor is clearly identified.

16. Active Voice Example “The Contractor shall perform Extra Work in accordance with the specifications unless otherwise specified in the Supplemental Agreement authorizing the Extra Work.” 22 Words

17. Active v. Passive Passive example – 30 words Active example – 22 words Savings: 8 words or 27% (If we could do this with a 1,000-page book, we could save 270 pages and, if we have to print 1,000 books, we could save a forest.)

18. Module I Sections 1200 and 1400 18

19. Caution This presentation cannot address every revision made to the standard specifications. This presentation is not part of the Contract and has no bearing on the interpretation of the Contract. You must read the revised specification carefully and interpret the requirements independently.

20. Scope of Rewrite 1201, “Prequalification of Bidders,” illustrates many of the standard features of the rewrite: Use of the active voice. Use of lists. Standardized capitalization. Standardized and defined terminology – “Proposal” versus “Bid.” Two shorter sentences versus one long sentence.

21. 1203, Access to Proposal Package Original 1203: “Issuance of Proposal Forms” Proposal forms will be issued to prospective bidders upon request and payment of the fee stated in the Advertisement for Bids.” New 1203: “ACCESS TO PROPOSAL PACKAGE” The Department will provide Bidders with access to the Proposal Package through the online E-Plan Room. The Department may require a fee for Bidders to purchase and download copies of the Proposal Package.”

22. 1203 Note the use of the active voice, “The Department will…” Note the incorporation of electronic bidding requirements. Note the emphasis on consistent terminology – “Proposal Package” versus “Proposal Form.” Note elimination of redundancy – “prospective bidders” are now “Bidders.”

23. By Convention The Department WILL… The Contractor SHALL…

24. 1205, “Examination of Proposal Package and Site of Work” The original title was “Examination of Plans, Specifications, Special Provisions, and…” Why was this changed?

25. Reasonable Site Investigation The original specification required a site investigation. The new specification requires, “a reasonable investigation of the site of Work,” defined as an investigation of the: (1) Project Site; (2) Borrow sites; (3) Haul routes; (4) Utility property in accordance with 1507, “Utility Property and Service;” (5) All other locations related to the performance of the Work, and (6) Any additional information the Department makes available in accordance with 1205.2, “Additional Information.”

26. 1402 Original Title: “Alteration of the Work and Changed Condition” New Title: “Contract Revisions”

27. Goals Gather as many provisions as possible that define a revision to the Contract to one location. Provide a “nest” for the clauses mandated by the FHWA. Provide a comprehensive “notice provision.” Provide a clear process for revising the Contract.

28. 1402 1402.1 General 1402.2 Differing Site Conditions (Formerly 1402.A.) 1402.3 Significant Changes in the Character of the work (Formerly 1402.C.) 1402.4 Suspensions of Work Ordered by the Engineer (Formerly 1402.B.) 1402.5 Extra Work (Formerly 1403) 1402.6 Eliminated Items (Formerly 1905)

29. 1402.1 General Specifies MnDOT’s right to make a revision. Obligates the Contractor to perform the work as revised. Requires the Contractor to provide notice for each type of revision IAW 1403. Specifies the consequences of failing to provide notice. Defines the term “adjustment.”

30. “Adjustment” The original specifications did not really define the term “adjustment” as used in the FHWA-mandated clauses (DSC, Significant Changes, or Suspensions). The new specification defines an adjustment as compensation IAW 1904, “Compensation for Contract Revisions,” and a time extension IAW 1806, “Determination and Extension of Contract Time.”

31. 1403, “Notification of Contract Revisions” The following notification requirements apply to all potential Contract revisions including those defined in 1402, “Contract Revisions.” The Engineer will consider requests for Contract revisions only if the notification procedures in this section are followed. The specified time limits may only be extended through a written, jointly-signed agreement between the Contractor and the Engineer. The Engineer will address the underlying issue prompting the notification in a timely and satisfactory manner.

32. 1403.2, “First Notice, By Contractor” The Contractor shall notify the Engineer verbally as soon as a Contract revision appears necessary. The Contractor shall not start or continue with an activity or Contract Item for which a Contract revision may be necessary without authorization from the Engineer.

33. 1403.3, “Written Notice, By Contractor” If the Contractor disagrees with the Engineer’s response or the Engineer does not respond to the first notice, the Contractor shall provide a written notice. Provide this written notice within 5 business days of first notice if Engineer has not responded or within 5 business days of receiving the Engineer’s response to the first notice. The written notice shall include the following:

34. 1103 “Definitions” BUSINESS DAY. Every day on the calendar, except Saturday, Sunday, and Holidays.

35. 1403.4, “Written Acknowledgement, By Engineer” The Engineer will provide a written acknowledgment of receipt of the Contractor’s written notice.

36. 1403.5, “Written Response, By Engineer” Within 10 business days of receiving the Contractor’s written notice, the Engineer will provide a written response that includes one of the following: (1) Confirmation of the need for a contract revision… (2) Denial of the request for a contract revision… (3) A request for additional information…

37. 1403.6, “Contractor’s Recourse” If the Contractor disagrees with the Engineer’s final written response or the Engineer’s response is untimely, the Contractor may pursue a claim in accordance with 1517, “Claims for Compensation Adjustment.” The Contractor shall give the Engineer written notice of the intent to pursue a claim within 5 business days of receiving the Engineer’s final written response.

38. Module 2 1800 38

39. 1803, Progress Schedules This specification was completely rewritten. It now incorporates a bar chart schedule requirement OR A CPM schedule requirement. The CPM schedule requirement is designed to accommodate the implementation of Oracle/Primavera’s P6 software.

40. 1803.1 “All Schedules” General Requirements The Contractor shall prepare the Progress Schedule as specified in 1803.2, “Bar Chart Schedules,” or 1803.3, “CPM Schedule.”

41. 1803.1.A.1 “Acceptance” …acceptance of any schedule does not modify the Contract or constitute endorsement or validation … of the Contractor's means, methods, logic, activity durations, or assumptions… … acceptance of a schedule is not an “approval.” Review…of a portion of a schedule or an incomplete schedule submittal will not indicate acceptance of the entire schedule. The responsibility for the validity and accuracy of all accepted schedules is solely the Contractor’s. …acceptance of schedules will not relieve the Contractor of its obligation or responsibility to submit complete and accurate information. Failure to include any element of required Work in the Progress Schedule shall not relieve the Contractor from completing all Work… By accepting the schedule, the Department does not guaranty that the project can be performed or completed as scheduled…[or] waive any Contract requirements.

42. 1803.1.A.2 “Early Completion" Contract time between the planned completion and the date specified in the Contract is Float. Should the Contractor intend to, or complete the work, or any portion thereof, earlier than the Contract Dates, it is understood that the Project benefits from the increased shared Float. The Contractor agrees that delays shall only be based on impacts to the Contract Dates, not the planned dates. Time extensions shall only be based on delays to the Contract Milestone dates or a revised Contract Milestone date executed by a Change Order/Supplemental Agreement. The Contractor is not entitled to a time extension until an Excusable Delay as defined in 1806, “Determination and Extension of Contact Time,” is incurred.

43. 1803.1.A.2 “Early Completion” Example For example, if the Contract Time expires on May 15 and the Contractor submits a schedule that is accepted by the Department that shows early completion of the Project on May 1, the schedule is required to show this difference as float. This float is available to all parties to the Contract on an as-needed basis until it is consumed.

44. 1803.1.A.3 “Non-Compliance” The Contractor's refusal, failure, or neglect to pursue timely acceptance of any schedule shall constitute reasonable evidence that the Contractor is not prosecuting the Work with the diligence that will ensure its completion within the applicable Contract Time… The Engineer will determine which of the following option(s) will best facilitate compliance:

45. 1803.1.A.3 “Non-Compliance” (1) 100 Percent Withholding: The Engineer may withhold an amount up to 100 percent of the estimated value of work performed. (2) Monetary Deduction: The Engineer may assess a non-recoverable Monetary Deduction of up to $1,000/day…

46. 1803.2 “Bar Chart Schedules” The Contractor shall plan and manage the Project, and report progress using the Bar Chart Method for the Contractor’s Progress Schedules. The Contractor shall not start any permanent work before Baseline Schedule Acceptance.

47. “Types” of Schedules Whether bar charts or CPM schedules are required, there are six schedule “types” specified: Preliminary Baseline Update Look-Ahead Revised Impact

48. 1803.2.B.1 “Preliminary Schedule” The Department will consider all schedules submitted before Baseline Acceptance to be Preliminary Schedules until the Preliminary Schedule is accepted as the Baseline in accordance with 1803.3.B.2, “Baseline Schedule”…

49. 1803.2.B.1 “Preliminary Schedule” …the Contractor shall continue to improve upon the Preliminary Schedules and show the status of Work actually completed, by incorporating actual start and finish dates and by reasonably estimating the remaining duration for each incomplete activity.

50. 1803.2.B.2 “Baseline Schedule” The Baseline shall indicate: (1) Actual Dates of Work performed if the Contractor chooses to perform any Work before the Department’s Acceptance of the Baseline Schedule. (2) All Contract Time dates, Milestones, and staging restrictions are understood and scheduled to complete within the Contract Time. (3) Each Activity… (4) The Critical Path. (5) The following minimum level of detail…