Much Change at ODOT
Kegler Brown Construction Newsletter March 1, 2009
Ohio Governor Ted Strickland recently appointed the first woman to head the Ohio Department of Transportation (ODOT) - Jolene Molitoris. The new director has much experience with rail development and will be charged with authorizing about $1 billion in new ODOT stimulus infrastructure soon. It remains to be seen whether ODOT under her leadership will return to an emphasis on Dispute Resolution Boards and claims avoidance.
In addition to the changes in leadership and budget, ODOT has made significant changes to its construction manual specification:
Duty To Ask Pre-Bid Questions
- §102.07: ODOT has further reinforced its "Duty to Notify of Errors in Bid Documents." Under this provision, potential contractors are required to ask pre-bid questions prior to bid opening. Failure to do so "shall constitute a waiver by the Contractor for any claim based upon any apparent or patent ambiguity arising from insufficient data or obvious errors in the Bid Documents."
Engineer's Acceptance Does Not Preclude Future ODOT Defective Work Claims
- §105.01: further reinforces that the Engineer's acceptance of work does not constitute a waiver by ODOT of its right to pursue any and all legal remedies for defective work.
No ODOT Waiver Resulting From An Inspector's Action or Inaction
- §105.09 & §105.10: an inspector's action or inaction does not constitute a waiver of ODOT's right to pursue all legal remedies for defective work. Furthermore, ODOT shall have the discretion to dictate the level of inspection for any item of work while the Contractor bears the sole responsibility that its work is in compliance with the contract.
Borrow and Waste Requirements
- §105.16: under its Borrow and Waste Areas requirements, the Contractor is responsible for any damage resulting from the instability, removal, or placement of the borrow and waste areas. Furthermore, the Contractor is responsible that the side slopes of all borrow and waste areas are beyond the "clear zone" and do not reduce the horizontal sight distance.
Additional Ways To Price Extra Work
- §109.05.D: for extra work, ODOT is now contractually permitted to use "state-wide average unit" pricing adjusted for inflation or the average price awarded on three different projects of similar work and quantity.
Final Bond Premium Adjustment
- §109.05.C.7: allows ODOT to make an adjustment based upon the final bond premium amount for the Contractor. The adjustment is based on the "actual final contract value," which is defined as the whole sum of money, excluding any bond premium adjustment, which is passed from ODOT to the Contractor for the completion for the work. If the actual final contract value is different from the original contract value, the premium shall be adjusted either by a Contractor refund or by an additional payment from ODOT. No final bond adjustment will be made if the actual final contract value differs from the original contract value by less than $40,000.00.
Acceleration, Inefficiency, and Loss of Productivity Provisions
- §109.06 & §109.07: under §109.06, the Engineer may order the Contractor to accelerate. If such acceleration order occurs, the Contractor and ODOT will negotiate the acceleration costs. §109.07 states that "compensable" inefficiency and loss of productivity costs shall be quantified using the measured mile approach.
Multi-Monthly Payments Possible
- §109.09: permits ODOT to pay estimates twice each month if the Engineer concludes the amount of work performed is sufficient.