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Section 2: Contract Administration

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Overview

The goal of contract administration is to ensure the requirements as outlined in the contract documents are performed accurately and completely and the responsibilities of all parties are properly satisfied. The primary objectives of contract administration are:

  • to verify performance for the purpose of payment;
  • to identify “material breach of contract” by assessing the difference between contract performance and material non-performance;
  • to determine if corrective action is necessary; and
  • to take such action, if required.

The Construction phase is initiated after TxDOT concurs in the award of the contract to the selected bidder. The LG may then award and execute the contract. During construction of the project, the LG must administer the contract and ensure the contractor and subcontractors abide by the requirements and clauses contained in the contract documents. A discussion of the federal and state laws and statutes related to contracting requirements is contained in Chapter 7 – Plans, Specifications and Estimates (PS&E) Development and Chapter 8 – Letting and Award of this Manual. This section describes key state and federal requirements for the administration of the contract by the LG during construction and refers the LG to the appropriate sections in previous chapters for more information on specific compliance and on documentation requirements. The required practices and specific responsibilities of the LG and TxDOT district office are described in the companion chapters of the LGPM Guide.

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Contract Award and Execution

Upon receipt of the TxDOT concurrence in award, the LG may award the contract to the selected contractor. Upon receipt of all submittals required from the contractor, the LG and selected contractor will execute the contract and the LG will provide a copy to TxDOT.

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Project Coordination Meeting

Soon after the contract is awarded and executed, a project coordination meeting is held with the LG project manager, the LG qualified person, the TxDOT project manager and other LG and TxDOT project staff. The purpose of the meeting is to review the contract requirements and responsibilities of the LG and TxDOT throughout the construction phase of the project. The meeting is described in more detail in the LGPM Guide.

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Pre-Construction Meeting

General

The LG must conduct a pre-construction meeting with all parties (including TxDOT) before construction can begin. The LGPM Guide provides the required practices associated with the meeting and the responsibilities of the LG and TxDOT district office.

Federal Requirements

  1. None identified

State Requirements

  1. None identified.
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Notice to Proceed

General

The construction phase starts with the issuance of a Notice to Proceed (NTP) or Authorization to Begin Work by the LG. The NTP is usually in the form of a letter and is issued by the LG to the selected contractor. The required practices for issuing a NTP, and the respective responsibilities of the LG and TxDOT, are described in the LGPM Guide.

Federal Requirements

  1. None identified.

State Requirements

  1. None identified.
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Environmental Concerns

All projects will comply with TxDOT policy to protect, preserve and, when practicable, enhance the environment. For construction projects, environmental concerns should be identified early in the project during the Preliminary Engineering and Design phase so any mitigation may be addressed and accurately reflected in the PS&E documents using the appropriate form [environmental permits, issues and commitments (EPIC)]. Chapter 5 – Environmental Compliance of this Manual and the LGPM Guide provide the associated federal and state regulations, required practices, and LG and TxDOT responsibilities.

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Inspection

General

All projects involving state or federal funds must be completed in accordance with the approved plans, specifications and authorized changes. To assure the project is being constructed accordingly, both the LG and TxDOT have certain inspection responsibilities on construction projects. Some federally funded projects have direct FHWA involvement, meaning that FHWA is part of all approval actions. For the majority of federal-aid projects, TxDOT assumes FHWA’s approval authority. The required practices associated with inspections during construction and the responsibilities of both the LG and TxDOT relative to inspections are described in detail in the LGPM Guide.

By executing an agreement with TxDOT, the LG assures it is adequately staffed and suitably equipped to manage all project functions. TxDOT verifies the LG’s actions by conducting periodic inspections; however, it is the LG’s day-to-day responsibility to determine compliance with the approved plans, specifications and contract administration requirements and to develop and keep adequate project documentation. The LG must provide assurance the contractor has complied with the plans, specifications and contract administration requirements, including requirements associated with the quality of the construction and the contract administration as described fully in the LGPM Guide.

Federal Requirement

  1. 23 CFR 1.36 – Provides that if FHWA determines a state (or LG) has violated or failed to comply with federal laws, then payment may be withheld for the project or approval may be withheld for further projects in the state (or to the LG).
  2. 23 U.S.C. 114 – Requires federally funded projects to be constructed under the direct supervision of the state transportation agency (TxDOT).
  3. 23 U.S.C. 302 – Requires states to have a transportation department with adequate powers and be suitably equipped and organized to carry out the duties required by this title.
  4. 23 CFR 635.105 – For projects under an LG’s jurisdiction, authorizes TxDOT to allow the LG to directly manage projects if TxDOT has assurance the LG staffing and inspection is adequate. This means all federal requirements shall be met, including:
    1. the LG must be adequately staffed (including an employee in responsible charge of the project) and suitably equipped to undertake and satisfactorily complete the work; and
    2. when the local public agency elects to use consultants for construction engineering services (inspection), the LG must provide a full-time employee of the agency to be in responsible charge of the project.
  5. Procurement of consultant inspection staff must be procured using the provisions of 23 CFR Part 172.

State Requirement

  1. 43 TAC Chapter 9, Subchapter C
    1. Allows TxDOT to contract for construction engineering and inspection services.
    2. Provides selection criteria complying with state law and 23 CFR Part 172.
  2. Texas Government Code §2254 – Provides for procurement of professional services by all governmental entities.
  3. Texas Local Government Code §271.908 and Texas Government Code §2269.356 – For design-build projects, requires the LG to provide or contract for inspection services independent from the design-build firm.
  4. Texas Occupations Code §1001.003 – Includes “review of the construction or installation of engineered works to monitor compliance with drawings or specifications” in the definition of “practice of engineering.”
  5. Texas Occupation Code §1001.407 – Requires engineering construction of public works be performed under the supervision of an engineer. Applies to all political subdivisions in Texas.

Required Practices

In general, the LG must ensure adequate staffing for inspections and follow the practices described in the LGPM Guide. In turn, the TxDOT district office must also provide required inspections of the project as described in the LGPM Guide.

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Supervision and Staffing

General

As discussed in detail in the subheading “Inspection,” a LG must be suitably equipped and staffed before it can be given authority to manage federal-aid highway projects within its jurisdiction. 23 CFR 635.105 requires TxDOT to be suitably equipped and organized to carry out the federal-aid program. Therefore, TxDOT is responsible for design, contract administration and construction inspection of all federal-aid construction projects. This responsibility is formalized by the project agreement executed for each federal-aid project. FHWA and TxDOT are the two parties to the agreement.

When a federal-aid project is to be constructed on a facility not under TxDOT’s jurisdiction, TxDOT may allow the LG having jurisdiction to perform the work with its own forces, or by contract, provided all of the following conditions are met.

  • All federal requirements, including those prescribed in 23 CFR Part 635 Subpart A, are satisfied on work performed under a contract awarded by a local public agency.
  • Force account work shall be in full compliance with 23 CFR Part 635 Subpart B.
  • The LG is adequately staffed and suitably equipped to undertake and satisfactorily complete the work.
  • The LG shall provide a full-time employee of the agency to be in responsible charge of each federal-aid project, including those employing consultants for construction engineering services. The requirements for the responsible person in-charge (RPIC) are defined in Chapter 2 of this Manual.

This arrangement does not relieve TxDOT of overall responsibility for the project. While 23 CFR 1.11(b) allows TxDOT to “utilize, under its supervision, the services of well-qualified and suitably equipped engineering organizations of other governmental instrumentalities for making surveys, preparing plans, specifications and estimates, and for supervising the construction of any project,” 23 CFR 1.11(e) clearly states TxDOT is not relieved of its responsibilities under federal law and the regulations in 23 CFR Chapter 1 if it chooses to use the services of other governmental engineering organizations.

Supervision of Construction Engineering Consultants or Construction Management Firms

The LG’s responsibilities for contract administration and construction inspection are not terminated should a consultant provide construction engineering and inspection services. While a consultant may provide daily inspection, the LG must have a RPIC assigned to the project at all times, although the RPIC does not need to be assigned solely to that project. The requirements for the RPIC are defined in Chapter 2 of this Manual.

If the LG uses the services of a consulting engineering or construction management firm, the services must be procured in compliance with 23 CFR Part 172.

Federal Requirement

  1. 23 CFR 635.105 – For projects under the LG’s jurisdiction, authorizes TxDOT to allow the LG to directly manage projects if TxDOT has assurance the LG is adequately staffed and suitable equipped to undertake and satisfactorily complete the work.

State Requirement

  1. Texas Occupations Code §1001.407 – Requires engineering construction of public works be performed under the supervision of an engineer. Applies to all political subdivisions in Texas.
  2. Texas Transportation Code §201.113 – Allows TxDOT to enter into an agreement with a regional tollway authority for projects on the state highway system.
  3. Texas Transportation Code §370.302(a) – Allows TxDOT to enter into an agreement with a regional mobility authority (RMA) to implement, operate and maintain a project on behalf of TxDOT.
  4. Texas Transportation Code §370.302(b)(1) – Allows a RMA to negotiate with private entities through a development agreement. The negotiations may include financing.

Required Practices

In general, the LG must conform to state and federal requirements for ensuring adequate staffing on a construction project. The LGPM Guide describes the required practices and LG and TxDOT responsibilities.

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Specification Compliance

General

Compliance with the specifications contained in the bid documents is required, and any changes to the bid documents must be approved by TxDOT before federal and state funds can be released. It is the LG’s responsibility to ensure compliance with the plans, specifications and authorized changes through inspections and other contract administration actions.

23 CFR 1.36 states:

"If the (Federal Highway) Administrator determines that a State (or LG) has violated or failed to comply with the Federal laws or the regulations in this part with respect to a project, he may withhold payment to the State (or LG) of Federal funds on account of such project, withhold approval of further projects in the State (or to the LG), and take such other action that he deems appropriate under the circumstances, until compliance or remedial action has been accomplished by the State (or LG) to the satisfaction of the Administrator."

Federal Requirement

  1. 23 CFR 635.105 – Assigns the responsibility for the construction of all federally funded projects to TxDOT. TxDOT is not relieved of such responsibility by authorizing performance of the work by a LG. Ensuring compliance with specifications is part of that responsibility.

State Requirement

  1. No comparable statute

Required Practices

In general, the LG must ensure the project is constructed in compliance with the PS&E. The LGPM Guide provides the required practices associated with this compliance.

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Quality Assurance Program

General

For all LG projects, independently of the contractor, the LG shall provide inspection services and construction materials testing as part of the LG’s quality assurance program (QAP). The LG’s construction materials testing shall be used for materials acceptance or for verification of a contractor’s test results to be used for acceptance, if applicable, and used to assure the materials incorporated into the project substantially meet project plans and specifications. The LG may develop its own QAP or adopt the appropriate TxDOT QAP pertinent to the type of project delivery method used:

  • QAP for design-bid-build projects; or
  • QAP for design-build projects.

If the LG develops its own QAP, it will need to submit the QAP to TxDOT for review and approval. This QAP must include an acceptance program and an independent assurance program as described in the LGPM Guide. Any program developed by the LG must receive approval from TxDOT prior to use.

Federal Requirement

  1. 23 CFR Part 637 Subpart B – For projects on the national highway system, requires the contracting agency to have a QAP approved by FHWA. The program must provide for an acceptance program and an independent assurance program and is intended to assure the quality of materials used in construction.
  2. 23 CFR Part 637 Subpart B, Appendix A – Provides a written certification that materials incorporated into a project on the national highway system are in conformity with the approved plans and specifications.
  3. 23 CFR 637.207(a)(1)(iv) – For design-build projects, allows the use of warranties where appropriate.
  4. 23 CFR 637.207(b) – For design-build projects, provides that the requirements for a QAP still apply. The program shall meet FHWA Technical Advisory 6120.3 in addition to 23 CFR 637.207(b). There is some added flexibility to use the design-builder’s quality control testing, but there must be independent verification of those results.

State Requirement

  1. Texas Local Government Code §271.908 – Requires a municipality or county governmental entity to provide or contract for, independently of the contractor, the inspection services, the testing of construction materials engineering and the verification testing services necessary for acceptance of the facility or project by the governmental entity.
  2. Texas Local Government Code §271.908 and Texas Government Code §2269.356 – For design-build projects, requires the LG to provide or contract for material engineering, testing and verification testing that is independent from the design-build firm.
  3. 43 TAC §26.33(g)(1) – Requires a RMA to use specifications conforming to the latest TxDOT standard specifications on projects that connect with the state highway system.
  4. 43 TAC §27.56(c)(3) – Requires a regional tollway authority to use specifications conforming to the latest TxDOT standard specifications on projects with state fund participation.

Required Practices

The LGPM Guide describes the required practices that must be followed by the LG and the TxDOT district office with respect to a QAP.

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Records

Project records provide documentation and support for the payments for contract work during construction. Chapter 2 – Project Initiation contains a detailed description of the types of documentation that must be kept for any transportation project and lists the federal and state requirements governing records retention.

Project records unique for construction projects are described in the LGPM Guide. Additional guidance on the requirements associated with records retention can be found in TxDOT’s Construction Contract Administration Manual.

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Subcontracting

Federal regulations impose limitations on the amount of work than can be subcontracted and are described briefly in Chapter 9 of the LGPM Guide. In general, the LG must adopt the TxDOT standard specifications, Form FHWA-1273 and other policies as applicable, must approve all subcontracts in writing and must coordinate with the TxDOT district. Details regarding specific subcontracting and debarment certification that must be followed and properly documented are found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development of this Manual and the LGPM Guide.

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Statements and Payrolls

The LG is responsible for receiving and paying statements from the contractor during construction and for ensuring workers are being paid fairly by both the contractor and subcontractors. The LGPM Guide provides a description of the sections related to payrolls on Form FHWA-1273.

29 CFR Part 5 and 23 U.S.C. 113 require the LG to meet the federal regulations for ensuring the contractor and subcontractors are paying the prevailing wage. For purposes of this guide, the LG is considered the “contracting agency.” The LG is required to ensure:

  • a representative sampling of employees is interviewed to verify contractor and subcontractor compliance; and
  • contractor and subcontractor payroll records are reviewed on a sampling basis.

The regulation does not require 100 percent coverage; it requires coverage frequency “... as may be necessary to assure compliance.” All contractors and subcontractors on the project must be included in the spot check. Contractors or subcontractors with violations must be reviewed in more detail.

Federal Requirement

  1. 29 U.S.C. §§201-219 – The Fair Labor Standards Act addresses various requirements applicable to employees including minimum wages, maximum hours and various child labor provisions.
  2. 23 U.S.C. 113 – Requires the Secretary of Transportation to take all steps necessary to assure laborers and mechanics working on federally funded projects are paid no less than the prevailing wage for similar work.
  3. 40 U.S.C. §3141 et seq. – Requires the Secretary of Labor to implement regulations including a provision that each contractor and subcontractor shall furnish a weekly statement with respect to the wages paid each employee during the preceding week.
  4. 29 CFR 3.1 and 3.3 – Requires contractors and subcontractors to submit weekly statements of wages paid on work covered by Davis-Bacon.
  5. 29 CFR 5.6(a)(3) – Requires recipients of federal funds to conduct investigations at a frequency necessary to assure compliance. The investigations must include employee interviews and examination of payroll data.
  6. 23 CFR 635.118 – Requires the state transportation department (TxDOT) to retain copies of payrolls and statements of wages paid, filed with the state as set forth in the required contract provisions for the project, for the time period pursuant to 2 CFR 200.333 (3 years) for review as needed by FHWA, the Department of Labor, the General Accounting Office or other agencies.
  7. 23 CFR 636.119(c) – Requires design-build projects to conform to all non-procurement requirements, including Davis-Bacon.
  8. Form FHWA-1273:
    1. Section IV.3 requires weekly, certified payroll submissions by the contractor and subcontractors; and
    2. Section IV.5. incorporates the Department of Labor regulations in the Copeland Act (anti-kickback provisions).

State Requirement

  1. Texas Government Code §2258.024 – Describes records to be kept by the contractor and subcontractor concerning minimum wages paid. The records must be made available to inspection by the contracting entity.
  2. Texas Government Code §2258.026 – Allows a contractor to accept a certification from a subcontractor in lieu of actual records.
  3. Texas Government Code §2258.051 – Requires the public entity to investigate complaints and withhold payment for violations.

Required Practices

The LGPM Guide provides the required practices and responsibilities that must be followed in order to ensure compliance with wage rates.

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Progress Payments

General

Progress payments are compensation paid to the prime contractor for the value of work performed during a covered period. The LG shall promptly review the contractor’s progress payment requests in accordance with applicable state and federal laws and regulations. In addition, consistent billing by the LG to TxDOT is required for federal-aid projects. A federal-aid project may be defined as an inactive project obligation by the FHWA if no expenditures are made for a year (see “Project Accounting” in Chapter 2 of this Manual). All requests for federal reimbursements of payments to the contractor by the LG must go through TxDOT.

The following general requirements apply for stockpiled materials, retention for subcontract work and final payment. The LGPM Guide provides detailed information and guidelines related to these topics.

  • Stockpiled Materials – When the contract provisions provide for stockpiled materials, federal participation is based on the appropriate value of approved specification materials delivered by the contractor to the project site.
  • Retention for Subcontract Work – The federal DBE regulation in 49 CFR 26.29 requires recipients to include a “prompt pay clause” in all federally funded contracts that requires contractors to pay subcontractors within 30 days of receiving an invoice (10-day requirement in Texas Government Code §2251.022) and also ensures prompt return of retainage payment within 30 days after a subcontractor’s work is completed (10-day requirement in Texas Government Code §2251.022).
  • Final Payment – By statute [ 23 U.S.C. 121(b)] FHWA cannot make final payment for a project until TxDOT approves the completion of its construction. In addition, Texas Government Code Chapter 2251, Subchapter B stipulates payment from the LG to the contractor is considered late on the 31st day after certain conditions are met. Late payments to the contractor will be subject to the appropriate interest as determined by the comptroller in accordance with Texas Government Code §2251.025.

Federal Requirement

  1. 23 U.S.C. 121(a) – Authorizes periodic payment of construction costs incurred. Payment may include the value of stockpiled material not yet incorporated into the project.
  2. 23 U.S.C. 121(b) – Specifies the final payment may be made after project completion.
  3. 23 CFR 635.122 – Further defines periodic progress payments and requirements for federal participation in stockpiled material.
  4. 23 CFR 635.122(c) – For design-build projects, requires procedures for making progress payments on lump sum contracts to be defined in the request for proposals.
  5. 49 CFR 26.29 – The USDOT’s disadvantaged business enterprise regulation requires the prime contractor to pay subcontractors for satisfactory work performance within 30 days of receipt of payment from the contracting agency.

State Requirement

  1. 43 TAC §26.33(g)(1) – Requires a RMA to use specifications conforming to the latest TxDOT standard specifications on projects connecting with the state highway system.
  2. 43 TAC §27.56(c)(3) – Requires a regional tollway authority to use specifications conforming to the latest TxDOT standard specifications on projects with state fund participation.
  3. Texas Government Code 403.071(b) – States a claim may not be paid from an appropriation unless the claim is presented to the comptroller for payment not later than two years after the end of the fiscal year for which the appropriation was made. However, a claim may be presented not later than four years after the end of the fiscal year for which the appropriation from which the claim is to be paid was made if the appropriation relates to new construction contracts.
  4. Texas Government Code §2251.021 – Requires payment to a contractor within 30 days or interest will accrue.
  5. Texas Government Code §2251.042 – Allows payment of interest involving a claim if the claim is resolved in favor of the contractor.
  6. Texas Government Code §2251.022 – Requires a contractor to pay a subcontractor not later than 10 days after receiving payment from a governmental entity.

Required Practices

The LGPM Guide provides a detailed discussion of the procedures that must be followed by the LG and TxDOT to ensure progress payments are made in a timely manner throughout the construction project.

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Retainage

Retainage is a portion of the construction contract fee that is withheld until the LG is satisfied the work is substantially complete. §223.010 of the Texas Transportation Code allows 5 percent of the contract price to be retained until the entire project has been completed and accepted. However, federal concerns over prompt pay ( 49 CFR 26.29) for subcontractors require the LG to follow strict guidelines for holding retainage if federal funds are used for the project. Details regarding specific retainage that must be followed and properly documented are found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development of this Manual and corresponding LGPM Guide.

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Contract Time

The term of the contract is an important part of every construction project. Too little contract time may result in higher construction costs, while too much contract time may encourage inefficiencies, increased user costs and potential delays and inconvenience to the public. The LG is responsible for coordinating closely with the TxDOT district regarding the determination of contract time. Details regarding specific contract time that must be followed and properly documented are found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development of this Manual and corresponding LGPM Guide.

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Time Extensions

Contract time extensions granted by a LG affecting project costs or liquidated damages shall be subject to the concurrence of TxDOT and will be considered in determining the amount of federal participation. Details regarding specific time extensions that must be followed and properly documented are found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development of this Manual and corresponding LGPM Guide.

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Termination of Contract

Termination is an action taken by the contracting agency to cancel a contract. Federal-aid contracts exceeding $10,000 must contain suitable provisions for termination by the LG. The provisions must identify the manner by which the termination will be effected and the basis for settlement. There may be a number of grounds to warrant termination, including termination for cause, termination for convenience and termination for default. Prior to termination of a federal-aid contract for which TxDOT concurred in the award, the LG shall consult with and receive the concurrence of TxDOT. Details regarding specific termination of contract provisions that must be followed and properly documented are found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development of this Manual and corresponding LGPM Guide.

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