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SEP-14 Workplan Pennsylvania Department of Transportation No Excuse Bonus

April 29, 2008

Project Name: State Route 22, Section B10 (Westinghouse to County Line)
County: Westmoreland
Federal Aid Number: X125-283-H980
Brief Description: Widening 2.5 miles of SR 22 from two to four lanes
Contract Cost: $30 - $35,000,000 (bid range)

The PA Division Office submits this work plan on behalf of the Pennsylvania Department of Transportation (PennDOT). PennDOT is requesting approval to utilize a no excuse bonus in the amount of $500,000.00 for the subject project under the provisions of Special Experimental Project No. 14.

This project will widen 2.5 miles of State Route 22 from two to four-lanes and it is the only remaining section to have only two-lanes from I-99 to I-76 (a distance of approximately 75 miles) and for safety reasons PennDOT would like to have construction completed early.

The purpose of this contracting method is to expedite construction to eliminate what will become the only remaining bottleneck along a 75 mile stretch of State Route 22. Currently there are four other projects under construction along State Route 22 that will be completed prior to this project. Consequently, the segment associated with the subject project will be the only remaining two-lane roadway in the corridor. Therefore, to minimize the length of time this segment is under construction PennDOT would like to include a no excuse bonus.

The contract has a required completion date of July 22, 2011. The no excuse bonus will be awarded if the Contractor is substantially complete by December 31, 2010.

A report will be submitted to FHWA after the completion of the project. The report will include an evaluation of the technique used, the industry and Agency reactions and issues, and a recommendation as to whether or not to use this construction method on future projects.

NO EXCUSE INCENTIVE PAYMENT AND WAIVER OF CONTRACTOR CLAIMS

Provision Body

The Department will pay the Contractor a "No Excuse Incentive" in the amount of $500,000.00, subject to the conditions precedent and terms set forth below, if the work in this Agreement is substantially complete, as determined by the Engineer, on or before 12/31/2010 ("No Excuse Incentive" Substantially Complete Date). For purposes of the calculation and the determination of entitlement to the "No Excuse Incentive" stated above, the "No Excuse Incentive" Substantially Complete Date will not be adjusted for any reason, cause or circumstance whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e. declared state of emergency).

Substantially complete is defined for purposes of this Agreement provision only, as when all work within the project requiring any traffic lane closure restrictions or traffic control devices is complete, and all lanes are open to traffic, each lane of which is a minimum of twelve (12) feet wide.  Such work includes, but is not limited to, all construction, pavement markings, and the removal of all traffic control devices. Payment of the "No Excuse Incentive" does not preclude the Department from assessing liquidated damages pursuant to Section 108.07 of Publication 408's Specifications. The Department reserves the right to assess such liquidated damages, even after determining the Contractor's potential eligibility for payment of the "No Excuse Incentive," in response to the Contractor's failure to complete all work by the project completion date.

The parties anticipate that delays may be caused by or arise from any number of events during the course of the Contract, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations, fluctuations of Conemaugh Dam pool water elevations or other such events, forces or factors sometimes experienced in highway construction work. Such delays or events and their potential impacts on performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not extend the "No Excuse Incentive" Substantially Complete Date set forth above. Further, any and all costs or impacts whatsoever incurred by the Contractor in accelerating the Contractor's work to overcome or absorb such delays or events in an effort to complete the Contract by the "No Excuse Incentive" Substantially Complete Date, regardless of whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor in every instance.

In the event of a catastrophic event (i.e., declared state of emergency) directly and substantially affecting the Contractor's operations on the Contract, the Contractor and the Department shall agree as to the number of calendar days to extend the "No Excuse Incentive" Substantially Complete Date. In the event that the Contractor and Department are unable to agree to the number of calendar days to extend the "No Excuse Incentive" Substantially Complete Date, the Department shall unilaterally determine the number of calendar days to extend the "No Excuse Incentive" Substantially Complete Date reasonably necessary and due solely to such catastrophic event and the Contractor shall have no right whatsoever to contest such determination, save and except that the Contractor establishes that the number of calendar days determined by the Department were arbitrary or without any reasonable basis.

The Contractor shall have no rights under the Contract to make any claim arising out of this "No Excuse Incentive" provision except as is expressly set forth in this Article.

As conditions precedent to the Contractor's entitlement to any "No Excuse Incentive" the Contractor must:

(1) Substantially complete the Contract as defined above and obtain acceptance by the Department, as determined by the Engineer.

(2) The Contractor shall notify the Department in writing, within 30 days of the acceptance of the work in the Contract by the Department, that the Contractor elects to be paid the "No Excuse Incentive" which the Contractor is eligible to be paid based on the actual acceptance of the Substantially Complete Date, and such written notice shall constitute a full and complete waiver, release and acknowledgment of satisfaction by the Contractor of any and all claims, causes of action, issues, demands, disputes, matters or controversies, of any nature or kind whatsoever, known or unknown, against the Department, its employees, officers, agents, representatives, consultants, and their respective employees, officers and representatives, the Contractor has or may have as to work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers or subcontractors or other Contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations,  fluctuations of Conemaugh Dam pool water elevations, extended or unabsorbed home office or job site overhead, lump sum maintenance of traffic adjustments, lost profits, prime mark-up on subcontractor work, acceleration costs, any and all direct and indirect costs, any other adverse impacts, events, conditions, circumstances or potential damages, on or pertaining to, or as to or arising out of the Contract. This waiver, release and acknowledgment of satisfaction shall be all-inclusive and absolute, save and except any routine Department final estimating quantity adjustments.

Should the Contractor fail to substantially complete the Contract and obtain acceptance by the Department as determined by the Engineer, or should the Contractor, having done so, fail to timely request the "No Excuse Incentive" for any reason, and including but not limited to the Contractor choosing not to fully waive, release and acknowledge satisfaction as set forth in (2) above, the Contractor shall have no right to any payment whatsoever under this Article.

In the event the Contractor elects to exercise the "No Excuse Incentive Payment" provision, should this provision conflict with any other provision of the Contract, the Contract shall be interpreted in accordance with this provision.  Actual payment of the "No Excuse Incentive", if eligible as set forth above, is to be made only after full completion of the project and final acceptance is obtained from the Department.

Contact

Jerry Yakowenko
Office of Program Administration
202-366-1562
E-mail Jerry

 
 
Updated: 04/07/2011
 

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United States Department of Transportation - Federal Highway Administration