Critical Components in Division 1 Specifications - Part B
This is the 10th in a series of discussions that is intended to prompt Project Teams to be aware of the entire contract document, including Information For Bidders (IFB), General Conditions/Terms and Conditions (GCs) and the Technical Requirements [Specifications and Drawings.]
In the rail transit domain, construction contracts may include items that are executed under unique conditions. The conditions include sharing property by multiple prime contractors, work progress while maintaining Buyer’s use of surrounding assets, restoring asset use after each work period, scheduling work within defined outages and service plan changes.
Div 1 Railroad Operations: This section contains the requirements for executing work in a work zone while the Buyer maintains full service for train operations. The topics may include roadway worker protection, service changes, track/power outages, on-track vehicles, railroad provide services, work during operational emergencies, operating vehicles and vehicles on Right-Of-Way (ROW).
Div 1 Temporary Construction: This section contains the requirements for constructing and removing temporary work to support work execution, and protecting railroad assets throughout the contract. The topics may include supervision and employee facilities, parking and storage areas, facilities for railroad personnel, and customer flow through work areas.
Div 1 Site Conditions Monitoring: This section contains the requirements for monitoring site conditions and railroad assets, and implementing corrective actions that may result from influences of passing vehicles on or adjacent to tracks, bridges, buildings, utility poles and equipment rooms and enclosures. The topics may include soil grade and density, track bed and right of way slope, erosion at abutments and retaining walls.
Div 1 Pre-Construction Planning and Controls: This section contains the requirements for the startup, protection and maintenance of work site conditions throughout the contract. The topics may include relating the Safe Work Plan with the use of labor and equipment at site specific locations, and utility mapping, excavation monitoring, and mark-out of known subsurface utilities and infrastructure.
Div 1 Code Enforcement Coordination: This section contains the requirements for coordination of progress on inspections and validation of compliance with the code requirements throughout the contract. The topics may include a summary of the products in the contract requiring inspection, and the processes, procedures and records that are required for the Buyer to use the work completed under the contract.
TIP: Div 1 requirements should be correlated and consistent with the other Division specifications.
TIP: Depending on circumstances and management requirements, additional Div 1 specifications can be created and incorporated into the contract. However, more specifications mean more prescriptive requirements. In turn, it means allocating more management resources to monitor and document compliance, and increase risk threats to progress and critical schedule dates.
After the Buyer’s organization determines project execution will use the Design-Build contract delivery method, the Project Management Office (PMO) will undertake changes to transition from the more traditional Design-Bid Build processes, procedures and best practices.
Many of the changes in the Buyer’s organization and PMO were highlighted in the October 2017 article “Are You Ready for Design Build Project Delivery Method for Rail Transit Projects?” https://www.projectmanagement.com/discussion-topic/73079/Are-You-Ready-for-Design-Build-Project-Delivery-Method-on-Rail-Transit-Projects.
This article expands on the TIPs regarding changes to contract content.
Traditionally, design and deliverables for construction contract documents are completed under a service contract with an Architecture/Engineering (A/E) firm. The acquisition process for design service contract typically uses a Request For Proposal (RFP) process. The Buyer’s process evaluates the Sellers technical proposals before negotiating cost to award a contract. Depending on the domain of the Buyer, the award process from the time of publishing an RFP to award can range from 4 months to 9 months. The contract duration for preparing designs and deliverables can range from 6 months to 18 months.
Typically, the contract documents are then bid for a firm price by a contractor to complete the construction. The acquisition process for construction contracts uses an Invitation For Bid (IFB) process. The Buyer’s process evaluates the responsive and reasonable bid from the Seller with the lowest price. Depending on the domain of the Buyer, the award process from the time of publishing an RFP to award can range from 2 months to 6 months.
Under DB delivery, a partial design document is used to develop the requirements for the construction contract. This eliminates the project duration for completing the design to100% and saves time to starting construction. This schedule benefit is achieved by having the construction contractor team with an A/E firm to complete the remaining design as construction proceeds concurrently.
As a result, the standard contract needs to integrate design scope and deliverables into the construction contract requirements. While there are various DB Models available, this article presents changes used in the rail-transit domain for converting the traditional construction contract into DB contract by integrating design requirements into Information for Bidders, General Terms and Conditions, and Division 1 Specifications.
For a recent rail-transit contract, here are the changes to the BDD contract Model that were implemented to create a DB contract:
Information for Bidders (InfoFB)
General Terms and Conditions (GT/C)
Division 1 Specifications
TIP: Adapting BD requirements to the Buyer’s existing DBB contract Model should be less intrusive to developing a new DB contract Model.
Henry Hattenrath is an experienced project/program management leader and consultant on rail transit capital projects, and he is a frequent contributor on Project Management.com and LinkedIn.com.
Critical Components in Division 1 Specifications - Part A
This is the 9th in a series of discussions that is intended to prompt Project Teams to be aware of the entire contract document, including Information For Bidders (IFB), General Conditions/Terms and Conditions (GCs) and the Technical Requirements [Specifications and Drawings.]
Division 1 specifications (Div 1) are the most utilized requirements by the Buyer’s project manager for managing the Seller’s progress of work. It is important the Buyer’s Project Manager, Contracting Officer, and PM support services (scheduler and estimator) verify content or provide input that ensures the contract is complete and executable. The specifications should be consistent with the Buyer’s processes, procedures and practices of the Project Management Office, and with the funding partner conditions for financial assistance.
The Div 1 typically include: A) Summary of Work. B) Meetings. C) Submittals. D) Deliverables. E) Schedules. F) Quality. G) Temporary Construction and Facilities. H) Safety. Depending on the scope of contract, there may be sections associated with interdependent work by the Buyer or Buyer’s representative including: I) Materials Provided By the Buyer. J) Code Enforcement Coordination. K) Site Conditions Monitoring. In the rail-transit domain, there may also be sections for: L) Railroad Operations. M) Security. N) Pre-Construction Planning and Controls.
The format and content of the Div 1 usually follows a model established by the Buyer’s organization and as modified by the PMO and the recommendations from the Engineer-Of-Record. Most specifications [Sections] include: 1) General-Scope, Referenced Sections, Cited Standards, Restrictions, Quality, Submittals, Deliverables. 2) Products-components and technical requirements. 3) Execution-process and sequence requirements. The content may also include unique requirements for coordinating with the Construction Manager, interfacing with other contractors and consultants, and accepting transfer of materials and related work by others to support Seller’s execution of work.
Div 1 Summary of Work: This section contains the high level description of the overall work that is consistent with the details provided in the specifications and drawings. It may also include work performed by other contracts or entities preceding and during the Seller’s work period.
Div 1 Schedule: This section contains the qualifications for the Scheduler and the requirements for the schedule and the format and contents of various monthly reports. The topics may include 90day schedule, detailed contract schedule, 4 week rolling schedule, and monthly schedule report/analysis.
Div 1 Submittals: This section contains the requirements for the submittals, the submittal process, review periods and disposition definitions, and the format and contents for submittal register/log, shop drawings, product data, samples, test procedures, and calculations.
Div 1 Deliverables: This section contains the requirements for the schedule and the format and contents of various monthly reports. The topics may include deliverable register/log, inspection reports, test reports, training lesson plans, training manual, operations and maintenance manual, monthly progress report, as-built drawings, pre-construction photographs and progress photographs.
Div 1 Meetings: This section contains the requirements for various meetings and the format and content of Agendas, meetings announcements and meeting minutes. The topics may include contract kick-off meeting, progress meetings, submittal review meetings, and schedule review meetings.
Div 1 Integrated Testing/Commissioning Acceptance Maintenance Plan (CAMP): The section includes topics such as CAMP matrix, integrated test plan, acceptance test procedures, acceptance certificates, warranty statement/certificates, and warranty procedure, forms and contact information.
Div 1 Safety: This section contains the qualifications for the Safety Officer and the requirements for the Safe Work Plan and Specific Work Plans. The topics may include safe work practices; accident prevention; incident and accident responses; employee safety training and personal protective equipment; instructions for working on Buyer’s property; designated storage areas; fire prevention and protection tools and equipment; tool box safety meetings; key communication procedures; and fire drills.
Div 1 Security: This section contains the qualifications for the Security Officer and the requirements for the Security Plan. The topics may include personal identification; employee background checks; controls for employees, materials and vehicles entering and leaving the work area; incident and accident response; key communication procedures; and evacuation drills.
Div 1 Quality: This section contains the qualifications for the Quality Manager and the requirements for Quality Managements System and the contract specific Quality Plan. The section identifies the primary elements of the ISO Quality standard including topics such as tests and inspections, records, non-conformances, and correctives actions.
TIP: Personnel qualifications in Div 1 specifications should be referenced in the IFB or copied directly into the IFB Key Personnel.
TIP: Div 2-16 specifications list submittals in each section for CM to substantiate, before the purchase/construction activities, the Seller’s compliance with product requirements.
TIP: With exception of system contractors, submittals disposition is defined by the organizations best practices. System contract may implement an acceptable alternate to submittal dispositions and Request For Information.
Critical Components in General Conditions - Liquidated Damages
This is the 8th in a series of discussions that is intended to prompt Project Teams to be aware of the entire contract document, including Information For Bidders (IFB), General Conditions/Terms and Conditions (GCs) and the Technical Requirements [Specifications and Drawings.]
It is important the Buyer’s Project Manager, Contracting Officer, and PM support services (estimator) verify content or provide input that ensures the contract is complete and executable within the Buyer’s organizational assets and business processes.
GC – Liquidated Damages (LDs): LSs is an estimated amount of costs incurred by the Buyer for the Seller’s delay in meeting milestones in contract Performance Schedule requirements. The amount is expressed in a unit measure for the delay. For each hour, day or week delay, the amount is accrued for deduction from the Seller’s future payment requests/invoices. The deduction is at the discretion of the Buyer and it follows the contract requirements for payments, which includes reduction for cause. It does not constitute a change in the contract.
The use of LDs is determined by the Buyer during the contract development process, and they are a function of critical interdependencies with other contract activities, other project work or other projects in a program or portfolio. LDs can also be the result of statutory dates in government regulations and mandates that were used to identify Performance Schedule milestones and completion dates. However, the Buyer’s decisions on LD requirements comes with the potential of higher bid amounts as bidders seek to cover the risks with allocations to mitigate potential delays and respond to events to minimize impacts from delays to milestones, and thereby to avoid erosion of profits.
The LD amount is based on an estimate created from a description of impacts on the Buyer due to the Seller’s delay. This may include expenses for dedicated staff to support the Seller’s work ,including stand-by crews and equipment for schedule activities. The estimate must be a reasonable representation of expenses and be based on the cost metrics and conditions known at the time of the bid.
LDs can apply to one or more specific milestones in the Performance Schedule. The most common milestone is Substantial Completion, which allows the Buyer to use the Seller’s product with the condition that punchlist work is defined and a completion date agreed upon before the contract completion milestone. However at the Buyer’s discretion, other milestones and LD amount can be identifying and added during the contract development.
LDs can not be waived. The only action/remedy to reduce the Seller’s liability for Buyer’s estimate of incurred cost is for the Buyer to change the contract date in Performance Schedule for the milestone associated with the LD. The process for changing the Performance Schedule can be initiated by the Buyer as a contract changes due to an Owner delay or by the Seller as a request for time extension. The implementation of a schedule change requires the same level of diligence and justification as to grant an excusable delay or scope change, and to the documentation to substantiate and process the change in the contract.
Usually, the contract does not include a “capped” amount for the accrued amount of LDs. There may be organizational Lessons Learned that necessitate the Buyer adjusting the LD requirements. This may be needed based on questions during the bid period from numerous bidders. In order to ensure bid responses, the Buyer may adjust the LD amount and/or add requirements to specify a maximum accrued amount.
For contracts in the rail transit domain, LDs are commonly used for contracts involving locomotive and passenger car purchases, specialized work equipment vehicle/shop equipment procurement, and for infrastructure systems for signals, supervisory controls, train movement controls, power substations, and signal power that are interdependent with other contracts within the project or program.
TIP: LDs estimate should be vetted thoroughly to ensure the document can be defended by the Buyer in response to a claim from the Seller or subsequent litigation action by the Seller.
TIP: LDs should be monitored and as potential accruals near, the Buyer and Seller should address the topics at progress meetings and describe actions in the monthly progress reports.
TIP: LDs on multiple milestones should be carefully balanced with the administrative effort to monitor, manage, document and enforce.
Critical Components in General Conditions - Progress and Milestone Payments
This is the 7th in a series of discussions that is intended to prompt Project Teams to be aware of the entire contract document, including Information For Bidders (IFB), General Conditions/Terms and Conditions (GCs) and the Technical Requirements [Specifications and Drawings.]
It is important the Buyer’s Project Manager, Contracting Officer, technical representatives and PM support services (scheduler and estimator) verify content or provide input that ensures the contract is complete and executable within the Buyer’s organizational assets and business processes.
GC - Payments: The type of payment requirements in the contract are determined by the Buyer during the contract development process. The payment requirements are a function of the location where the work is performed and the availability for the Buyer or Construction Manager (CM) to monitor the work.
Progress payments are based on the Seller’s actual progress [on the Buyer’s property] against the contract schedule approved by the Buyer. Each billing period, the Seller submits an invoice for payment based on the earned value, which is a calculated on physical progress on scheduled activities. Payment processing consists of the Buyer and its CM validating progress and mutually agreeing with the Seller on the payment amount.
While progress payments may be the norm for contracts, certain project execution plans might be better suited to milestone payments. Milestone payments are appropriate for contract where a significant portion of the work occur on the Seller’s property. In addition to difficulties in monitoring the Seller’s progress, the Buyer realizes no value until the product of the Seller’s labor, materials and equipment is in the Buyer’s possession or on the Buyer’s property. In these cases, the Buyer defines the milestone/deliverable, schedule date and payment value as a percentage of the contract amount.
The milestone values should be based on the project/contract estimate. As necessary, the Buyer’s estimate should be reviewed by the Engineer-Of-Record to validate the metrics and assumptions for industry cost data, and to evaluate current actual and forecast trends over the contracts period, including costs for labor, material, and equipment, as well as premiums for availability.
For construction in the rail transit domain, milestones payments are commonly used for contracts involving locomotive and passenger car purchases, specialized work equipment vehicle/shop equipment procurement, and infrastructure systems for signals, supervisory controls, train movement controls, power substations, and signal power.
TIP: Milestone payments should be consistent with the milestones in the performance schedule requirements, and be correlated with the pricing format and content in the bid requirements.
TIP: Milestone payment value should be correlated with the Buyer’s contract estimate.
TIP: Milestones payment value is a contract requirement. The only way to change the values is for Buyer to negotiate different amounts during pre-award conference with lowest responsive and responsible Seller, or for the Seller request a post award change in accordance with the contract.