Attachment 2 - Development and Review of Specifications - Construction

Technical Advisory

Development and Review of Specifications Attachment 2

Specification Review Guidance

When conducting a review of State DOT specifications, Division office staff should focus on the following general areas:

Administrative issues
Materials-related issues
Technical content
Organization, formatting, writing style, and coordination with plans and other specifications

Guidance related to each of these areas is provided below.

Administrative issues. Reviewers should ensure that the State DOT complies with the following general types of policy and procedural issues related to construction lettings.

Required contract provisions
1. Federal, State, and local agencies have certain required contract provisions covering such items as employment, subletting or assigning of the contract, safety, termination, and environmental requirements that must be included in construction contracts. Because these requirements may change on relatively short notice, the required contract provisions are generally not included in bound books of standard specifications.
2. Form FHWA-1273 contains the required contract provisions and proposal notices that are required by FHWA and other Federal agencies. Form FHWA-1273 must be incorporated into all contracts as well as appropriate subcontracts and purchase orders.
3. The Contract Administration Core Curriculum Manual, October 2014, Chapter III.B.9.ix summarizes each of the provisions included in Form FHWA-1273 and provides related guidance.

Other contract provisions : The Contract Administration Core Curriculum Manual, October 2014, contains discussions on numerous other contract requirements, including:

CHAPTER	CONTRACT PROVISION	PAGE
*III*	*Project Development Requirements*	17
A	*General Requirements for STAs*	17
2	Public Agencies in Competition with the Private Sector	17
3.	Non-discrimination	18
4.	Foreign Contractor and Supplier Restriction	20
5.	Prohibition on Use of State Preferences	20
6.	Drug-Free Workplace Requirements	21
10.	Safety	25
B.	*PROCESS REQUIREMENTS*	27
8.	*Design and Preconstruction*	41
k.	*Labor*	69
i.	Prohibition on the use of convict labor	69
ii.	Prohibition on use of state or local preferences	70
vii.	On-the-job training	83
l.	*Materials selection*	86
i.	Buy America	86
ii.	Convict-produced materials	90
v.	Patented and/or proprietary materials	93
vi	Pipe material selection	97
vii.	State owned/furnished/designated materials	99
viii.	Salvaged materials	100
m.	Equipment	102
i.	Use of publicly owned equipment	102
ii.	Contractor-purchased equipment for state ownership	103
iii.	Equipment rental rates	105
9.	*Advertisement and award*	*107*
a.	*Plans, specifications and estimate (PS&E) requirements*	*107*
iv.	Disadvantaged Business Enterprise	112
vii.	Standardized changed condition clauses	118
1)	Differing site conditions	119
2)	Suspensions of work ordered by the Engineer	119
3)	Material changes in the scope of the work	120
viii.	Environmental commitments	120
*ix.*	*Required Contract Provisions (FHWA-1273)*	*121*
VI.	Subletting or Assigning the Contract	124
VII.	Safety: Accident Prevention	124
b.	Non-collusion statement	126
*10.*	*Post-award procedures*	*138*
f.	Job Site Safety	146
i.	Contract changes and time extensions	151
k.	Claims	158
m.	Termination	163

Note: The provisions listed in the above table are subject to change. For the latest updates, please visit the FHWA Contract Administration web page, the Policy and Guidance Center, or contact your local FHWA Division Office.

State-specific provisions
1. Reviewers should also be aware of any State-required provisions or project-specific conditions (e.g., permit requirements).
2. The State DOTs may not modify the provisions of Form FHWA-1273. Additional State requirements may be included in a separate supplemental specification as long as they do not change the intent of the required contract provisions.
Deviations from Federal Requirements: Certain rules, policies, and procedures contain provisions that allow them to be waived under certain circumstances, such as through a through a public interest finding or a cost-effectiveness finding.
1. Public Interest Finding (PIF)
  1. A PIF requires that the State DOT clearly demonstrate that the proposed deviation is more beneficial to the public than meeting the requirement.
  2. A PIF is, by its very nature, an unusual situation. The Division Administrator should only concur with a State DOT's PIF after carefully considering the specific situation and the precedent that may be set.
  3. Conditions that require a PIF include:
    1. Coordination of airport and highway developments (23 CFR 620 Subpart A)
    2. Use of a conditional Right-of-Way certification (23 CFR 635.309(c)(3))
    3. Mandated use of agency-provided materials or designated material sources (23 CFR 635.407),
    4. A waiver of Buy America Requirements (23 CFR 635.410(c))
  4. The justification for a PIF will vary depending upon the nature of the request; however, the justification should be objective and, to the extent possible, quantifiable. In general, the request for a PIF should include a written document that outlines the basis for the request and provides the necessary supporting information, such as a cost/benefit analysis, review of product availability and compatibility, logistical concerns, and other unique considerations.
2. Cost-Effectiveness Finding (CEF)
  1. A cost effectiveness finding requires the STA to clearly demonstrate that the proposed deviation is more cost-effective than meeting the requirement.
  2. Conditions that require a CEF include:
    1. Construction work performed by a contract awarded by other than competitive bidding (23 CFR 635.104(b))
    2. The use of publicly owned equipment (23 CFR 635.106(a)). For more information regarding the use of publicly-owned equipment, see Contract Administration Core Curriculum Manual October 2014 Chapter III.B.8.i Use of publicly-owned equipment
    3. Procedures for State DOTs to request approval from FHWA that highway construction work be performed by some method other than contract awarded by competitive bidding (23 CFR 635 Subpart B)
3. Other:
  23 CFR 635.407(g) discusses disposal sites for surplus excavated materials.
  This is allowed where there is a State DOT finding (with the concurrence of the FHWA Division Administrator) that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental considerations, provided the environment would be substantially enhanced without excessive cost.”

Materials-related issues. To promote a competitive bidding environment, Federal regulations contain certain restrictions related to specifying the use of agency-provided materials. The guidance provided below describes these issues and identifies any allowable exceptions.
1. State-provided materials
  1. Federal regulations (23 CFR 635.407) require a competitive bidding process to acquire the materials that will be incorporated into a project. If a specification requires use of materials or equipment provided by the State DOT, the contractor will not be able to select and provide materials from its own sources, a restriction that could result in higher project costs.
    
    If a specification mandates use of State-provided materials or equipment, ensure that provision of these items by the State DOT is necessary (e.g., to tie into existing systems or for cost savings) and meets the allowable exceptions to the competitive bidding requirements found under 23 CFR 635.407.
    1. Exceptions require the Division Administrator to concur that the use of materials provided by the State DOT or from sources designated by the State DOT is in the public interest (refer to the discussion above on public interest findings ). Factors that may lead to a PIF include cost effectiveness, system integrity, and local shortages of materials. When dealing with natural materials (e.g., borrow pits or stockpiled materials) the PIF may also be based on environmental considerations.
    2. The exception policy treats manufactured materials differently from local natural materials.
      1. Manufactured materials - When a PIF approves the use of manufactured materials provided by the State DOT, the specification must make such use mandatory. Allowing it to be optional would violate public policy that prevents government agencies from competing with private firms.
      2. Local natural materials - When the State DOT owns or controls a natural materials source, the specification may designate such materials for either optional or mandatory use; however, mandatory use will require a PIF.
  2. For more information related to State-provided or designated materials, refer to Contract Administration Core Curriculum Manual October 2014 Chapter III.B.7.l.vii State owned/furnished/designated materials
  3. To help prevent claims against owner-caused delays, it is also a good practice when specifying the use of State-provided materials to include a requirement for the contractor to identify in its schedule when it needs such materials. The specification should also require the contractor to inspect and accept the items provided by the State DOT before incorporating them into the work to help prevent later disputes regarding the quality of the furnished item.
    
    Note: On September 27, 2019, FHWA issued a final rule in the Federal Register rescinding the long-standing regulatory provisions for patented or proprietary products in 23 CFR 635.411(a)-(e). The final rule eliminates the requirements limiting the use of Federal funds in paying for patented or proprietary materials, specifications, or processes. In addition, State DOTs will no longer be required to provide certifications, request PIFs, or develop research or experimental work plans to use patented or proprietary products in Federal-aid projects.
Technical content. The division office should ensure that the technical requirements included in a contract are relevant, realistic, biddable, and applicable to the proposed project. To this end, technical specialists at the division office, Washington Headquarters, and the resource center should be consulted as necessary for input. Such specialists may also be able to identify ongoing initiatives to develop or revise similar specifications. Additional issues to consider when reviewing specifications for technical merit are provided below.
1. Fair and equal consideration
  1. A specification should clearly state the contractor's obligations and known risk. No specification should try to get something for nothing by concealing its intent.
  2. In general, risk should be allocated to the party best able to avoid or manage the adverse impacts of the risk. Whether this party is the State DOT or the contractor is entirely dependent upon project-specific 42 conditions and the willingness of the State DOT to potentially pay a premium for the contractor to assume responsibility for a high-risk item.
  3. When allocating project risks, some consideration should also be paid to the contract delivery approach. Certain contracting approaches (e.g., design-build) are more amenable to the contractor assuming risk for endproduct performance.
  4. Specifications should not specify impossibilities or near impossibilities, or contain unenforceable requirements. If ideal conditions cannot be obtained, tolerances should be specified to allow acceptable variations in the work. However, tolerances should not be too stringent, as unnecessarily tight tolerances may increase costs.
  5. The issue of what will be done in the event that either party does not satisfy their respective contractual responsibilities must be addressed. The actions available to each party and the potential costs or delays that may result from the failure of either party should be considered in specific terms.
2. Clear and measurable requirements
  1. Specifications should describe the required work with clarity and precision to prevent different interpretations by the contractor and the State DOT's representative. A specification should not include requirements that the State DOT does not intend to enforce.
  2. Specification requirements should be based on procedures that are necessary to produce the measurable qualities desired by the State DOT. Specifying procedures or properties that cannot be justified by experience or that are not related to the product quality may lead to a conflict that cannot be equitably resolved.
  3. All requirements should be definitive and measurable. Without a definitive method, the possibility for multiple interpretations could lead to conflicts over the measurements taken.
    1. Requirements that involve the "opinion of the Engineer" cannot be realistically bid as the quality requirements are left undefined.
    2. Similarly, if the work cannot be measured against a standard, the use of adjectives and other word modifiers will not clarify or provide additional substance to the directions. For instance, in field applications, what would be the difference between "thorough consolidation" and "consolidation" of fresh concrete? The judgment made in the field would be whether or not the fresh concrete has been consolidated.
    3. The inclusion of requirements beyond what can be measured equally by both parties to the contract, or requirements that are 43 open to differing opinions, should be eliminated. For example, instead of stating "The concrete surface must be clean," consider "Broom clean the concrete surface" or "Provide a concrete surface free of dirt, grease, oil, or other foreign material."
    4. Use of words such as "satisfactory," "adequate," and "workmanlike" similarly often fail to convey a measurable standard. The reference Vague Adjectives and Adverbs list additional generic modifiers that should be avoided in specifications.
  4. The specification should also clearly address where and when measurements are to be made.
    1. If sequential measurement and approval actions will be necessary, the sequence should be clearly identified.
    2. Once the work responsibilities are identified, a review of the measurement and payment procedures is needed to ensure that the sequence of each party's actions does not interfere with the measurement of the work quality and quantity.
3. Testing, inspection, and acceptance requirements
  1. To ensure its expectations are met, a State DOT must be able to examine, analyze, demonstrate, or test what it buys. Specifications should therefore contain, for each requirement, a corresponding statement of the method by which the State DOT will verify that the requirement has been fulfilled.
  2. As part of its stewardship and oversight role, the division office should ensure that the State DOT has adequate controls in place regarding project cost, schedule, and quality.
    1. Regardless of the exact manner in which acceptance activities will be performed (visual examination, mockups or test pads, sampling and testing, auditing of contractor QC data), the State DOT should have a clear process in place to ensure that its engineering and inspection staff, or outside consultants as applicable, are consistently performing and applying established procedures to prevent unintentional acceptance of non-conforming work or the appearance of arbitrary decisionmaking in the field. Inconsistent enforcement of requirements is a primary cause for ineffective specifications and would run contrary to the State DOT's responsibility to safeguard the public's interest.
    2. A State DOT's quality management activities should start with the review and approval of the contractor's submittals and shop drawings. Identification and correction of problems during the submittal stage can eliminate the need for costly and time consuming rework activities during construction.
    3. Once construction is underway, inspectors should routinely monitor the progress of the work, both in terms of adherence to the project schedule and budget, and compliance with construction requirements.
    4. All sampling, testing, inspection, and other verification activities should be performed in accordance with the State DOT's established quality assurance procedures. Title 23 CFR 637 – Construction Inspection and Approval, describes the necessary components of a State DOT's construction inspection and approval program to ensure that the materials and workmanship incorporated into a Federal-aid highway construction project conform to the approved specifications.
  3. Some best practices related to specifying inspection and acceptance activities are described below.
    1. The specification should clearly define how the State DOT intends to conduct quality assurance and acceptance activities. This information is important to both the State DOT's inspection staff that will be performing this work and to contractors for factoring into their bids and construction schedule.
    2. When writing specifications and using them in the field, it should be remembered that "approval actions" and "acceptance" may be considered to be the same when conflict resolution reaches the claim stage or litigation. Generally, exculpatory clauses that are inserted into approval documentation (for example, false work design and structural design submittals) have not been successful as a defense in litigation.
    3. If either party has additional responsibilities for a contract item after measurement for payment, the nature and extent of that responsibility must be specified.
    4. To the extent necessary, the specification should also describe responsibilities regarding removal and replacement of defective work or contractor acceptance of reduced payment.
    5. Several State DOTs are now moving towards assigning contractors more responsibility for quality assurance sampling and testing, a role traditionally held by the State DOTs. This shift in traditional roles and responsibilities is primarily seen with alternative contracting techniques, such as design-build delivery, or with performance specifications. However, even if the contractor is performing the bulk of the testing, the State DOT must, as per 23 CFR 637.207(a)(1)(ii)(B) , still perform sufficient verification to ensure that the desired quality level has been achieved. Failure to do so could compromise both end product performance and future maintenance costs. For more details, refer to T6120.3, Use of Contractor Test Results in the Acceptance Decision, Recommended Quality Measures, and the Identification of Contractor/Department Risks.
4. Method versus performance specifying
  1. When reviewing a specification, consider what type of specification is being used, and whether it is the best choice for meeting the project's needs and goals. Specification language may have to be adjusted accordingly. For example, performance specifications will typically require more emphasis on contractor quality control and end-product parameters that affect performance, whereas method specifications will require more detailed descriptions of materials and processes. Refer to the document Types of Specifying for more information on method and performance specifications.
  2. Performance specifications can also serve as a welcome alternative to a proprietary specification. Proprietary specifications are generally disadvantageous to agencies because restricting competition may result in higher prices. Efforts to ensure open competition through the use of performance specifications can assist the State DOTs in controlling costs of construction projects while still maintaining quality.
Organization, formatting, and writing style. To effectively communicate requirements, specifications must be clear, concise, complete, correct, and consistent. Meeting these "five C's" of good specification writing requires good grammar, proper sentence construction, consistent organization, formatting, and writing style, as well as technical accuracy and applicability to the project at hand. Some general guidance on evaluating a specification for organization, clarity, and writing style is provided below.
1. Organization
  1. A standard, five-part format for specifications has evolved over the years through the concerted efforts of the FHWA and AASHTO, in coordination with highway construction industry organizations. Most agencies follow this five-part format, which provides distinct subparts for:
    1. Description of Work
    2. Materials
    3. Construction Requirements
    4. Measurement
    5. Payment
  2. Some agencies have adapted the AASHTO format to create a four-part format, in which the measurement and payment subsections are combined. Others are using a modified Construction Specifications Institute (CSI) format. Regardless of the exact format used, a standard organizational structure provides the following benefits:
    1. A standard format establishes a uniform approach to providing needed information, describing the work to be performed and identifying the responsibilities of the contracting parties. This standard format can thus act as a checklist of what information to include and where to include it. Information that does not fall within the standard subparts is considered nonessential.
    2. Separating the necessary parts of the specification into manageable increments allows the writer, and similarly the reader, to pay proper attention to the particular needs of each part.
    3. Having a consistent, logical framework allows the specifier, the contractor, estimator, manufacturer, and inspector to quickly find information within an individual section. A well organized specification eliminates confusion and results in a smoother contracting process that, in turn, provides economic benefits to all concerned.
    4. Establishing a base format numbering system and sequence of specifications provides an easier referral system for specification users.
  3. Although all subparts may not always be applicable, they should not be deleted. The specifications should show all of the format parts using the notation "none specified" where the information is not applicable. For example, consider a specification on Section 201 - Clearing and Grubbing. To fully describe this work, the specification would require subsections for the description of work, construction requirements, method of measurement, and basis of payment. Although there would be no materials requirements, the materials subsection should not be eliminated. Instead, the subsection should be presented as follows: 201.02 Materials Requirements - None Specified.
  4. The discussion on method specifications in the document Types of Specifying addresses the content considerations for each of these subparts. Adherence to this organizational structure can help ensure that the specification is complete.
  5. The information within the subparts themselves should also be carefully organized to ensure continuity of thought and logic.
    1. Requirements should be arranged into discrete and complete messages that can be expressed simply.
    2. The information should be presented in the same sequence as the contractor will perform the work (e.g, mix, place, finish, and cure).
2. Writing style
  1. Specifications are a compilation of directions, provisions, and requirements pertaining to the performance of the work. They should describe the work with clarity, precision, and consistency and should have an organized and logical format. Well-written specifications inform the contractor of the work to be performed, the conditions and restrictions on the performance of the work, the expected quality of the work, the manner in which the work is to be measured for payment, and how the State DOT will pay for the work. With that in mind, reviewers should ensure that specifications:
    1. are clear, concise, and technically correct;
    2. do not use ambiguous words or phrasing that could lead to misinterpretation;
    3. clearly define roles and responsibilities;
    4. are written in simple words and short and easy to understand sentences and paragraphs;
    5. do not repeat requirements stated elsewhere in the contract; and
    6. are consistent in terminology, usage, format, and organization.
  2. Additional review tips for ensuring that specifications are written in a manner that is clear, concise, complete, and consistent are provided in the document Basic Specification Writing Principles.
  3. If the State DOT has not already developed a specification style guide, encourage it to do so. Style guides provide guidance on writing style, organization, format, terminology and phrasing, and related drafting conventions. If the State DOT's specification writers adhere to the guidelines, the reviewers will be able to focus on content and technical matters, instead of grammar and consistency issues. Typical topics addressed in a style guide include:
    1. Standard terminology and phrasing;
    2. Proper use of voice and mood;
    3. Formatting conventions; and
    4. Additional conventions related to punctuation, capitalization, and use of abbreviations and acronyms.
3. Coordination with other requirements
  1. Specifications are often written in a piecemeal manner by several different authors, depending upon the expertise needed. It is therefore important to read the contract as a whole to help identify conflicting requirements. A requirement occurring in one is binding as though occurring in all.
  2. Conflicting requirements can be several pages apart, so finding the conflict often depends on the memory of the reviewer. Using a word processing program to search on key words and phrases can help identify conflicts.
  3. Technical requirements should be coordinated with the administrative requirements in the General Conditions (typically Division 100 of the Standard Specifications). Conflicts often occur regarding submittal requirements, measurement and payment terms, responsibility for permits, coordination responsibilities, and definitions (i.e., using the correct terms).
  4. Conflicting specifications or contract requirements may be resolved using an order-of-precedence clause. In highway contracts, such a clause is often found in the Control of Work section of the General Conditions (Division 100).
  5. The basic philosophy is that project-specific information governs or takes precedence over the more generic, and written specifications govern over drawings. Thus, the hierarchy of documents imposed by a typical orderof- precedence clause is as follows:
    1. Project Special Provisions
    2. Project Plans
    3. Supplemental Specifications
    4. Standard Specifications
    5. Standard Plans
  6. Reviewers should be aware of a State DOT's standard order-of-precedence clause when reviewing contract documents. Note, however, that the intent of this clause is not to eliminate the need to minimize contradiction among contract requirements. Reviewers should strive to identify and eliminate conflicting requirements as part of their review effort.

Construction

Technical Advisory

Development and Review of Specifications Attachment 2

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