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Current Design-Build Practices for Transportation Projects

Appendix 4 Virginia DOT Contract Provision Regarding Scope Validation (New)

An excerpt from:

Part 4 - General Conditions of Contract Between Department and Design-Builder

2.2 Scope Validation and Identification of Scope Issues

2.2.1 Scope Validation Period. Except as modified in Section 2.2.2 below, the term "Scope Validation Period" shall refer to the ninety (90) day period following the Date of Commencement. During the Scope Validation Period, Design-Builder shall thoroughly review and compare all of the then-existing Contract Documents, including without limitation the RFP Documents and the Proposal, to verify and validate Design-Builder's proposed design concept and identify any errors, omissions, inconsistencies, constructability problems, Site conditions or any other defects or concerns of any kind (collectively referred to as "Scope Issues") that may affect Design-Builder's ability to complete its proposed design concept within the Contract Price and Contract Time(s). If Design-Builder finds any Scope Issues, it shall notify Department in writing of such findings within the Scope Validation Period. Upon such notice, the Parties shall promptly meet and confer to discuss the resolution of such issues. If a Scope Issue could not have reasonably been identified by Design-Builder prior to the Agreement Date, and if resolution of the issue materially impacts Design-Builder's price or time to perform the Work, Design-Builder shall be entitled to submit a request for Work Order, and Department shall have the right to act upon such request, in accordance with Article 9 hereof. Notwithstanding anything to the contrary in the Contract Documents or as a matter of law, Design-Builder shall have the burden of proving that the alleged Scope Issue could not have been reasonably identified prior to the Agreement Date and that such Scope Issue materially impacts its price or time to perform the Work.

2.2.2 Scope Validation Period for Non-Accessible Areas of the Site [if applicable]. The Parties recognize that the Department will not have acquired and have complete right of entry to all areas of the Project as of the Date of Commencement, and that, as a result, Design-Builder will not have access to such areas to conduct any additional geotechnical evaluations as contemplated by Section 4.3.2 below. The Parties further recognize that there is a possibility that Design-Builder may be restricted, as of the Date of Commencement, from having full access to other areas of the Site for purposes of conducting geotechnical evaluations. For the limited purpose of determining Scope Issues that directly arise from geotechnical evaluations for such areas, the term "Scope Validation Period" shall be deemed to be ninety (90) days from the date that Department notifies Design-Builder that it has acquired and obtained compete right of entry to such areas.

2.2.3 Design-Builder's Assumption of Risk of Scope Issues. The Parties acknowledge that the purpose of the Scope Validation Period is to enable Design-Builder to identify those Scope Issues that could not reasonably be identified prior to the Agreement Date. By executing this Agreement, Design-Builder acknowledges that the Scope Validation Period is a reasonable time to enable Design-Builder to identify Scope Issues that will materially impact Design-Builder's price or time to Request for Proposals Project Name (Insert) Part 4 County/City, Virginia General Conditions of Contract Project No. (Insert) Date (Insert) PPMS (Insert) Commonwealth of Virginia Department of Transportation Page 7 of 38 perform the Work. Following completion of the Scope Validation Period, with the sole exception of those Scope Issues identified during the Scope Validation Period and subject to valid requests for Work Orders in accordance with Section 2.2.1 above, the Parties agree as follows:

.1 Design-Builder shall assume and accept all risks, costs, and responsibilities of any Scope Issue arising from or relating to the Contract Documents, including but not limited to conflicts within or between the RFP Documents and Proposal;

.2 Design-Builder shall be deemed to have expressly warranted that the Contract Documents existing as of the end of the Scope Validation Period are sufficient to enable Design-Builder to complete the design and construction of the Project without any increase in the Contract Price or extension to the Contract Time(s); and

.3 Department expressly disclaims any responsibility for, and Design-Builder expressly waives its right to seek any increase in the Contract Price or extension to the Contract Time(s) for, any Scope Issue associated with any of the Contract Documents, including but not limited to the RFP Documents.

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Jerry Yakowenko
Office of Program Administration
202-366-1562
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Updated: 05/21/2014
 

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