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8.         Conformance With Contract Documents - The contractor ensured conformance to all contract requirements including quality of materials and workmanship of temporary as well as final products and services. Contractor provided sufficient supervision, management and oversight to ensure quality control at all times. Contractor's efforts are such that the Department's CEI efforts are not essential to ensure quality. 

Contractor Notification Method:      Contractor notified monthly by weather letter.  Contractor can appeal grade given in this category for the month within 10 days of receiving weather letter. 

 

Guidance provided: 

1.         Question: It was my understanding that the column Allowable Days could have said Contract Days, however the criteria states chargeable workdays. Should we be placing the calendar days or the chargeable workdays under that column?  

Answer: Chargeable workdays. 

 

2.         Question: Contractor was issued a warning deficiency letter in two categories MOT and Timely & Complete Submittal of Contract Documents for that incident. Based on what I am reading in the criteria, the Contractor will need to be in non-conformance in more than 5% of the chargeable work days in order to be graded less than 20, therefore since this was an isolated incident that cause severe backup, it appears that Contractor still gets 20 out of 20 points, right?  

Answer: Correct. 

 

3.         Question: Furthermore, will the quality days be affected and be one day less than the allowable days column for the month of April?  

Answer: Correct. 

 

4.         Question: In preparing the response below, to the forgoing questions I realized that the definition of a chargeable work day in category 8 is much more complicated than I thought. I also realized that there are situations that  conformance to contract documents should not be compared to chargeable work days. We often have flex start or procurement periods preceding chargeable work days. During these pre chargeable contract workday periods, how are we to base our rating of this category as outlined on page 7 of 7, form 700-010-25?   

Answer: Category 8 would not be affected for "pre-chargeable" contract days.  Category 3, Timely and Complete Submittal of Documents, would be where the Contractor's performance should be measured before contract time starts. 

 

5.         Question: The first sentence on page 7 of 7 [from Contractor’s Past Performance Report Form 700-010-25] states "The contractor ensured conformance to all contract requirements _____". Does this mean from award, execution, NTP, the first contract day, or the first chargeable workday?  

Answer: From the first chargeable workday for the purposes of Category 8. 

 

6.         Question: The contractor has many contract obligations before the first workday.  

            Answer: These before contract time starts obligations would be evaluated in other categories. 

 

7.         Question: An example on page 7 under note B. [from Contractor’s Past Performance Report Form 700-010-25] references that shortcomings to shop drawing submittals should be documented on the daily dairy. We often have procurement periods preceding any workdays on projects when contractors should be submitting shop drawings. If this category is to consider workdays only, how do we account for procurement periods, and flex start projects within the guidelines for this category?   

            Answer: These periods (before construction begins) would be accounted for in Category 3, Timely and Complete Submittal of Documents. 

 

8.         Question: Category 8 has many references to chargeable workdays. That implies to us, that if a contractor has a five-day work schedule, the other two days would not come into consideration.  

            Answer: The evaluation of seven-day per week activities (i.e., erosion control, MOT, etc.) would be covered in Category 8 when there are non-compliances.  Otherwise, there is no effect.   

 

9.         Question: When calculating this rating how do we define the quality days is it days that the contractor pursued the work and was in conformance?    

            Answer: We have instructed Districts to use Chargeable Contract days in Category 8.  The reason being is that we want to be able to account for nonconformance days that occur on weekends.   

 

10.       Question: Is the intent to penalize the contractor twice, once in Category 1 and then again in Category 8, for not pursuing the work or should the allowable days actually be the days the contractor pursued the work?    

            Answer: The intent is not to penalize a Contractor in both Category 1 and 8.  Category 1 deals with how the Contractor pursued the work.  Category 8 handles the conformance of the work to contract requirements.  

 

11.       Category 8 should be used to evaluate the performance of the Contractor's conformance with all contract requirements and the Contractor's Quality Control.  There will, on almost all projects, be cases of overlap of other categories with Category 8.  There will likely be instances in which performance in other categories do not rise to the level of DWL or DL but would still affect Category 8.  Reasonableness and good judgment should be at the forefront of your decisions but that does not mean that there are 100 lifelines available for every incident. 

 

12.       Definition of "Allowable Contract Time" is the Original Contract Time plus all approved time adjustments. 

 

13.       When a project goes into LD's, we have previously instructed that in Category 8, zero would be entered for Allowable Days used after the project went into LD's and a negative value equal to the number of days LD's would be entered into the Quality Days column. 

 

Upon further review of this process, we have determined that the fairest way to capture non-conformance during periods of work when there are no allowable days left on the contract would be to only count the actual non-compliant day, or days, rather than running the days continuously.  This would account for the only for the actual days any non-conformances occur. 

The following attachment illustrates this.

Additionally, as a clarification, there have been many questions lately about other Categories affects on Category 8.  It should be understood that Category 8 will be affected by impacts to other categories.  If a contractor receives a VW, DWL, or DL in other categories, the days on which a DWL or DL is issued would be non-conformance days.  Days on which a VW is issued would not be considered a nonconformance day in Category 8. 

Also, category 8 is to be used to account for non-conformances such as lack of submittal of shop drawings or other documents.   Tracking of these types of non-conformance days are required to be noted on the daily reports of construction for purposes of tracking (please reference Form 700-010-25 Contractor's Past Performance Report).  If a non-conformance day is given due to lack of submittal of documents and the contractor provides a firm commitment to provide the documents on a specific date to which we can agree, then it is our intent that the initial non-conformance day would be counted and subsequent days would not be counted as non-conformance for this reason.  If the contractor provides the documents on the committed to date, that is the end of the matter.  If the contractor fails to submit the documents on the agreed upon date, then non-conformance days would resume until such time the documents are provided. 

 

14.       Question: What is the position of Central office on how we impact the contractor's grade when we have pulled part of the QC Plan?  We will obviously affect category 8 with a non conformance day, but it seems like we should be impacting another area.  My thoughts are, the first time a DWL in category 4 and the second time a DL in category 8, but I want to be consistent with your direction. 

            Answer: Category 3 would see a DWL or DL for the pulled QCPlan, Category 8 would see the non-conformance day for the date of the occurrence, and Category 1 could see non-pursuit days. 

 

15.       We have not been requiring Category 8 to be affected when a contractor starts work on a project after time has started.  Categories 1 and 4 will take care of this.   

 

16.       If the nonconformance day in category 8 was given as a result of the DWL or DL in another category, then it would not be appealable and the contractor should be given this as the reason.  We don't have any intentions of making the DWL's appealable. 

Having said that, the following would be how things are handled for appeals: 

If a non-conformance day is given as a result of a DWL or DL, if the DL is appealed and the Contractor prevails in the appeal, then the non-conformance day in Category 8 would be removed. 

 

Recognize that non-conformance days are appealable each month for that month.  DL’s are appealable within 10 days of issuance of the DL.  Bear in mind the affect that a successful appeal can/will have on non-conformance days. 

            

17.       Only time non-pursuit days (Category 1) would be counted as non-conformance days (Category 8) is if there are items (i.e. MOT, Erosion Control features, etc.) that were not properly maintained during non-pursuit period.

 

18.       Process for handing projects that ended in Liquidated Damages but later, either through DRB ruling or negotiations, time was added to the project that made the assessment of LD’s not required, the following is how the CPPR would be calculated: 

 

The Final Grade entered by the Resident Office would have to be changed.  To do this, the State Construction Office (Lewis Harper) is contacted about getting the grade re-opened to allow changes to be made. 

 

The Resident Office would have to revise the CPPR Spreadsheet as shown below.  The example project is the same as used in Category 8, Guidance Number 13 of this document. 

Things to note in this example are the changes that were made.   

Days granted – changed from 0 to 60
Allowable days – changed from 100 to 160
Contractor Performance Rating – changed from 70 to 95
Pursuit of Work – changed from 61% to 96%
Timely Completion of Project – changed from 0 to 14
Conformance with Contract – changed from 89% to 93%

 

19.     Urban project 6 lane divided highway. 
Contractor completes a Traffic Control Phase and shifts traffic to the new alignment.  The next week the Contractor's MOT report indicates no deficiencies.  The CCEI MOT report indicates old traffic striping has not been completely eradicated.  (A total of 4 locations ranging from 2 to 10 feet in length were not completely eradicated). The following week the CCEI Sr. Inspector and the Contractor's WSTSS meet to review MOT.  The Sr. inspector request the contractor's MOT report be corrected to reflect deficient pavement markings.  Contractor complies and next report indicates minor pavement marking removal remains to be completed.  Contractor WSTSS, while reviewing MOT with the Sr. Inspector, calls the Pavement Markings Subcontractor and ask that as soon as the water blasting unit is available that he stop by the project and complete the pavement marking removal.    Sr. Inspector request the partially removed pavement markings be completely removed by next Wednesday (one week).  Contractor's WSTSS states he can not commit to the one week time frame but states he will continue to pressure his Sub and insure they are removed the next time water blasting unit is on site.  One week passes and the old pavement markings that were only partially removed still remain.    The WSTSS did have his forces paint over one yellow stripe with black paint because it was at the beginning of a taper and was a little confusing.  The second week after the traffic shift, the Sr. Inspector and the WSTSS meet again to review MOT.  Sr. Inspector informs the WSTSS that each additional day old pavement markings remain without being water blasted off will be counted as a non conformance day under category 8.  Contractor sends the Subcontractor a letter and cc's the Project Engineer informing the Subcontractor that his CPPR rating is being affected.    It takes the pavement marking sub an additional two weeks to remove the partially removed pavement markings.

 

Question A:  Should the day the Sr. Inspector informed the WSTSS that his MOT report needed to be corrected, be counted as a non conformance day under Category 8?

Answer:  Yes, this would count as a non-conformance day.

 

Question B:  Since the Type III barricades were not corrected in one week as requested by the Sr. Inspector, should each day after the one week be counted as a non conformance day under Category 8?

Answer:  We have maintained in the guidance that we have issued that if we get a firm commitment date from the Contractor to which we can agree for correcting non-conformance issues, then we would only charge non-conformance days if the commitment date passes without the issue being corrected.  In your example, you stated that the Contractor was given one week to correct but that he did not/could not commit to correcting the barricades within that time frame.  Without compelling reasons, one week to correct MOT errors is a reasonable amount of time.  Given that the non-conformances were not corrected within the week allowed, then non-conformance days would be assessed.

 

Question C:  Should the project engineer have issued a DWL after one week?

Answer:  Yes in Category 2.

 

Question D:  Should the project engineer have issued a DL at the end of the second week?

Answer:  Yes in Category 2.

 

Question E:  Is this the type of situation that even warrants documentation? 

Answer:  Yes, this is representative of the types of things that would be expected to be documented in the CPPR process in addition to the Daily Work Reports and MOT reports.

 

20.    Urban project 6 lane divided highway. 
Contractor completes a Traffic Control Phase and shifts traffic to the new alignment.  The next week the Contractor's MOT report indicates no deficiencies.  The CCEI MOT report indicates 2 of 32 Type III barricades are not in conformance with contract documents.  (Two of the 6 Type III barricades delivered to the site for the Phase traffic shift had Road Closed Signs mounted over the reflective panels).  The following week the CCEI Sr. Inspector and the Contractor's WSTSS meet to review MOT.  The Sr. inspector request the contractor's MOT report be corrected to reflect deficient Type III barricades.  Contractor complies and next report indicates 2 Type III barricades need signs repositioned so they are not covering reflective panels.  Contractor WSTSS, while reviewing MOT with the Sr. Inspector, calls the supplier of the Type III barricades and request they be corrected.  Sr. Inspector request the signs on the Type III barricades be corrected by next Wednesday (one week).  Contractor's WSTSS states he can not commit to the one week time frame but states he will move the signs to a dead end side street with only 3 residences.  One week passes and the Road Closed Signs on the Type III barricades have not been remounted.  The WSTSS did have the signs moved to side the streets.  The second week after the traffic shift, the Sr. Inspector and the WSTSS meet again to review MOT.  Sr. Inspector informs the WSTSS that each additional day the 2 Type III barricades are not corrected will be counted as a non conformance day under category 8.  Contractor sends the Subcontractor a letter and cc's the Project Engineer informing the sub no payment is being made for the two type III barricades not in conformance with the contract documents.  It takes the supplier of the barricades an additional week and a half to come out and remount the road closed signs in proper location.

 

Question A:  Should the day the Sr. Inspector informed the WSTSS that his MOT report needed to be corrected, be counted as a non conformance day under Category 8?

Answer:  Yes, this would count as a non-conformance day.

 

Question B:  Since the Type III barricades were not corrected in one week as requested by the Sr. Inspector, should each day after the one week be counted as a non conformance day under Category 8?

Answer:  We have maintained in the guidance that we have issued that if we get a firm commitment date from the Contractor to which we can agree for correcting non-conformance issues, then we would only charge non-conformance days if the commitment date passes without the issue being corrected.  In your example, you stated that the Contractor was given one week to correct but that he did not/could not commit to correcting the barricades within that time frame.  Without compelling reasons, one week to correct MOT errors is a reasonable amount of time.  Given that the non-conformances were not corrected within the week allowed, then non-conformance days would be assessed.

 

Question C:  Should the project engineer have issued a DWL after one week?

Answer:  Yes in Category 2.

 

Question D:  Should the project engineer have issued a DL at the end of the second week?

Answer:  Yes in Category 2.

 

Question E:  Is this the type of situation that even warrants documentation?

Answer:  Yes, this is representative of the types of things that would be expected to be documented in the CPPR process in addition to the Daily Work Reports and MOT reports.

 

21.   Question: There is still some confusion about DWL's and DL's issued in some category such as Cat. 3 and its effect on Category 8 before chargeable work days have begun. I have copied the Additional Guidance question/answer as well as the instructions in the e-mail of January 27, 2004 and have pasted them below. They conflict somewhat. The question arose because a Contractor has not submitted several required pre-construction documents and the PA has issued a DWL in Cat. 3. I will appreciate clarification one more time.

Response: We have not been counting the DWL or DL's written prior to work starting (prechargeable contract days) against Category 8. We have only been affecting Category 3 for the submittal of documents prior to work actually beginning. This guidance is provided to clarify response to question 13 of this category. Reference response given to question 4 of this category.
 

22.  A contractor states on his Controlling items of work that he is going to work 6 days a week. It rains on a Wednesday, he gets a weather day and Pursuit of work is only 4 of 4, with a weather day which equals 5 available days. Four days worked and one rain day.
It rains on a Saturday, Pursuit of work is 5 of 5. Do we grant a weather day for the rainout on Saturday?

 

Response: If the contractor's schedule shows a six day work week, we would grant the weather day for the Saturday.

What happens if it rains on a Sunday, do we grant a weather day for a Sunday if it was not a scheduled day of work?

 

Response:  No on Sunday since it was not a scheduled work day. The granting of weather days is for delays to the work caused by the weather - if no work scheduled, there is no delay to work due to weather.

I know that we show Weather Days on the CPPR so that we can come up with Allowable Contract Days.

 

Response: Actually, the allowable contract days are accounted for in Category 8, Conformance with Contract Documents. Category 1 is not going to match allowable contract days for the project unless the contractor works 7 days/week with no weather days.

In the Remarks column of Category 1, should we show weather days if Saturdays and Sundays become weather days?

 

Response: You would show Saturday if it was a scheduled workday, would not show Sunday based on scenario from above.

What I try to do when I get copies of the monthly CPPR is to verify that category 1 and category 8 days are listed correctly. I look at a calendar and determine the Work Days for the month. Then I add up the Pursued Days, non-pursued days and the weather days and figure that should equal Work Days for the month. But I have run across one that this does not work since they are giving Saturday's and Sunday's as weather days.  What are your thoughts?

 

Response: The quickest way to account for accuracy of the days in the spreadsheet is to sum the Category 8 allowable days column and compare it to days used in the header. If the numbers match, the days are correctly accounted for. As for Category 1, as I alluded to above, if the total work days will not match the allowable days due to weather and the fact that few jobs have a seven day a week schedule.