1. Home
  2. Programs
  3. Construction
  4. Construction Manual
  5. Chapter 3: General Provisions, Section 5: Control of Work

Chapter 3: General Provisions, Section 5: Control of Work

Printable version (PDF)

Published: August 2023

Section 5  Control of Work

3-501        General

Section 5, “Control of Work,” of the Standard Specifications, details how contract work will be controlled. The proper performance of the contractor and resident engineer assure control.

Verify that the contractor provides quality control over the work. During the manufacture of products and the execution of the project, the contractor performs the actions necessary to assess and adjust production and construction processes to control the level of quality produced in the end product or facility, and to fulfill specified requirements.

The California Department of Transportation (Caltrans) performs activities required for acceptance. The resident engineer and authorized representatives sample, test, and inspect the work to determine if the quality characteristics meet the contract requirements within the tolerances specified. When tolerances are not specified, use judgment to determine if any deviation is allowed consistent with the trades involved.

For additional information on quality control and Caltrans acceptance, refer to Section 3-607, “Quality Assurance,” of this manual.

Section 5-1.01, “General,” of the Standard Specifications, requires the contractor to provide safe and unrestricted access to the work for inspection by Caltrans. The resident engineer must take full advantage of this access.

The Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA) establishes standards for safe access to work, and Caltrans enforces them under Section 7-1.02K(6), “Occupational Safety and Health Standards,” of the Standard Specifications.

The cost of providing access for inspection of bid item work is included in the bid item price. If the contractor is required to construct facilities specifically to provide access for inspection of extra work, the cost may be included on change order bills. These costs, however, are limited to only the increased cost of providing inspection for the extra work and may not include the access costs that fall under the original item work.

Never operate the contractor’s equipment or allow any Caltrans representatives to operate the contractor’s equipment. During quality assurance inspections, only the contractor’s own equipment operators must operate the equipment.

3-502        Engineer’s Authority

The term “engineer” refers to the resident engineer and authorized representatives. The engineer is responsible for contract administration and is authorized to make the final decision on questions regarding the contract. The engineer must act in accordance with Caltrans policies and procedures and, in the absence of written policy or procedures, must exercise judgment within their ability and span of control as established by the district.

The engineer will focus on the details and methods of performing the work only if one or more of the following conditions exist:

  • The details and methods of performing the work are specified.
  • The essential attribute or end result cannot be measured.
  • Public safety or convenience is involved.

Otherwise, the details and methods must be left to the contractor’s discretion.

Resident engineers must report their assignments to all interested parties by submitting Form CEM-0101, “Resident Engineer’s Report of Assignment.” Submit this form as early as possible.

The resident engineer is the lead for contact and correspondence with the contractor.

3-503        Protests

Section 5-1.06, “Protests,” of the Standard Specifications allows the contractor to protest an engineer’s decision by submitting a request for information. Protests by the contractor of weekly statements of working days, change orders, or failure to issue a change order must be done through a request for information.

3-504        Partnering

Partnering allows all parties and stakeholders to establish and maintain cooperative communication channels and mutually resolve conflicts at the lowest responsible level. Become familiar with and follow Section 5-1.09, “Partnering,” of the Standard Specifications and the Caltrans publication, Field Guide to Partnering on Caltrans Construction Projects. This publication is available under Resources/Manuals at:

https://dot.ca.gov/programs/construction/partnering

For additional guidance, contact the partnering coordinator in either the district or the Division of Construction. The names and contact numbers for these coordinators are available under Contacts on the Caltrans link at:

https://dot.ca.gov/programs/construction/partnering

Supplemental funds to cover the anticipated partnering costs are included in projects with an engineer’s estimate of more than $1 million. To pay for Caltrans’ share of the partnering costs, execute a change order using the change order code AUZZ.

Use of a partnering facilitator is recommended on all projects. Use of a partnering facilitator is required, however, on all projects greater than $10 million and longer than 100 working days. A list of partnering facilitators is available under Contacts at:

https://dot.ca.gov/programs/construction/partnering

When selecting a partnering facilitator:

  • Consider the extent of a candidate’s experience as a partnering facilitator on other Caltrans projects.
  • Check with other resident engineers or the partnering coordinator in either the district or in the Division of Construction for information regarding potential facilitators.
  • Interview several facilitators. Do not assume all facilitators are the same. Search for the right facilitator for the job.
  • Confirm the full scope and cost of the facilitator’s work. Not all facilitators perform the same amount of work, and the cost differences for a 1-day session can be as much as $15,000. The cost for each session should include all costs of the facility, full payment for the facilitator, materials used during the session, and all pre- and post-session work. The facilitator should make an effort to get to know the parties, facilitate the sessions to foster a team dynamic, provide meeting notes, and follow up on any action items discussed at the meeting.
  • Verify that the facilitator’s services include administering monthly project surveys. The facilitator is allowed to charge for this survey.

3-505        Order of Work

If the plans or special provisions do not contain a specified sequence of operations, contractors may select their own schedules, provided the planned order of work meets any dates specified for completion and openings of portions of the work to traffic.

Occasionally, the contractor may submit a proposed modification of the specified order of work that will be more satisfactory for the work’s operation. If, in the resident engineer’s opinion, Caltrans will benefit as much or more by adopting the proposed modification as it would under the specified plan, the contractor’s plan may be implemented with a change order requested by the contractor. Caltrans must receive a monetary adjustment if the contractor has any reduced costs from the change. Also, a contractor may benefit if a change is proposed and accepted under a change order for a value engineering change proposal. Refer to Section 3-405, “Value Engineering,” of this manual and Section 4-1.07, “Value Engineering,” of the Standard Specifications.

The resident engineer must recheck the specified plan of operations during the work’s progress. Changes in circumstances may necessitate altering the planned sequence and schedule. Construction in stages is often a part of the contract on major projects, and revised progress schedules may be required as the stages of work develop.

3-506        Assignment

If the contractor submits any of the following contractor action request forms to the resident engineer, the contractor must also include a completed and signed Form STD 204, “Payee Data Record,” as part of the submittal in accordance with Section 5-1.12, “Assignment,” of the Standard Specifications. Submittal of scanned or faxed copies is acceptable.

  • Form CEM-1202A, “Contractor Action Request–Change of Name/Address,” is submitted by the original contractor as an informational submittal to notify Caltrans of change to the contractor’s business name or mailing address.
  • Form CEM-1202B, “Contractor Action Request–Assignment of Contract Monies, Assignee Change of Name/Address” is submitted by the original contractor or surety as an informational submittal to provide notification if a contractor is assigning contract payments to another entity, such as a surety, bonding company, or escrow company. If payments are assigned to a different entity and the remaining contract work is assigned to a new prime contractor, the contractor must submit Forms CEM-1202B and CEM-1203 to cover both actions.
  • Form CEM-1203, “Contractor Action Request–Assignment of Contract Performance,” is submitted by the original contractor, surety, or bonding company to assign contract performance to another contractor. An assignment of performance request is an action submittal that requires the Division of Construction chief’s consent, as authorized agent for the director, in order for the request to be approved.

Carefully review and verify the information in contractor action request submittals. Adhere to the procedures listed in the instructions of Forms CEM-1202A, CEM-1202B, and CEM-1203. For a contractor business name change submitted under Form CEM-1202A, refer to Section 3-704A, “Responsibilities,” of this manual for information regarding validation of insurance bonds and contract bonds.

3-507        Subcontracting

Contractors can use subcontractors on their projects provided the subcontractor and the prime contractor comply with Section 5-1.13, “Subcontracting,” of the Standard Specifications, and with state and federal laws and regulations. The contractor is required to submit Form CEM‑1201, “Subcontracting Request,” before subcontracted work starts.

When projects use subcontractors, the resident engineer must focus primarily on:

  • Always knowing which subcontractors are working on the project and on which specific items they are working.
  • Making sure that listed subcontractors have a valid public works contractor registration number before they begin work.
  • Making sure that listed subcontractors are not improperly removed or replaced.
  • Verifying that the prime contractor achieves the subcontracting level pledged when the contract was awarded to meet requirements of the Disadvantaged Business Enterprise (DBE), Disabled Veteran Business Enterprise (DVBE), and small business programs.
  • Assuring adherence to the provisions of the Public Contract Code.

For more information on these subcontracting requirements, refer to Section 8-3, “Disadvantaged Business Enterprises and Disabled Veteran Business Enterprises,” of this manual.

3-507A     Amount of Work Subcontracted

Section 5-1.13, “Subcontracting,” of the Standard Specifications, requires that the prime contractor perform at least 30 percent of work using the contractor’s own organization unless a different percentage is specified in the special provisions. This requirement does not apply if the work is for a building-construction, non-federal-aid contract.

The percentage of work subcontracted is calculated for first-tier subcontractors only. A contractor’s organization includes only workers employed and paid directly by the prime contractor and only equipment owned or rented by the prime contractor, with or without operators.

Discuss unusual subcontracting situations with the construction engineer. If the situation indicates that additional information is necessary but only available through an inspection of the contractor’s records, request a copy of the subcontract agreement from the prime contractor. If a review of the subcontract agreement does not help resolve the situation, discuss the possibility of an audit with Division of Construction’s field coordinator.

3-507B     Calculating the Amount of Work Subcontracted

The contractor must submit Form CEM-1201, “Subcontracting Request,” stating what percentage and dollar amount of an item will be subcontracted. The resident engineer must verify the amount. Any rational method of estimating the amount will be acceptable; for example:

  • The percentage of an area, volume, or length
  • The portion applicable to material cost
  • The portion of labor and equipment cost

When an entire item is subcontracted, use the prime contractor’s item bid price as the dollar amount for the form. When a portion of an item is subcontracted, apply the percentage of the bid item subcontracted to the prime contractor’s item bid price as the dollar amount for the form.

To assure that the contractor is not requesting approval for a subcontractor other than those listed in the bid documents, the resident engineer must check the DBE, DVBE, and small business commitment listings and the list of subcontractors. If a discrepancy is noted, advise the contractor and ask for an explanation. The resident engineer must not approve the subcontracting request until the contractor provides an acceptable explanation.

3-507C     The Subletting and Subcontracting Fair Practices Act

3-507C (1)  Subcontracting in the Bidding Process

Sections 4100 through 4114 of the Public Contract Code are called the “Subletting and Subcontracting Fair Practices Act” (Fair Practices Act) and apply to Caltrans construction projects. It is designed to prevent prime contractors from “bid shopping” for subcontractors after bids are opened and the low bidder is known.

The Fair Practices Act requires that subcontracted work in excess of one-half of 1 percent, or 0.005 percent, of the contractor’s total bid amount or $10,000, whichever is greater, must be listed in the prime contractor’s bid proposal. When a prime contractor fails to list a subcontractor in its bid, the law requires that the prime contractor must perform the work with its own forces. The prime contractor may not add an unlisted subcontractor by requesting a substitution. Exceptions to this requirement are discussed in Public Contract Code 4107 (c) and Public Contract Code 4109.

For building projects such as a maintenance station or other off-highway project, all subcontracted work in excess of one-half of 1 percent of the contractor’s total bid amount must be listed.

Verify that the listed subcontractor performs the work or that the contractor complies with the substitution procedures in the Fair Practices Act.

3-507C (2)  Substitution Process

To replace a subcontractor listed in the bid documents, the prime contractor must submit a written request based on the reasons identified in Public Contract Code Section 4107, and include the public works contractor registration number of each substituted subcontractor. To assure this requirement is met, verify that the subcontractor’s registration number is valid at the California Department of Industrial Relations’ Public Works Contractor Registration Search website:

https://www.dir.ca.gov/dlse/debar.html

When the prime contractor requests a substitution, proceed as follows:

  1. Send the request to the district Construction office for review.
  2. The district Construction office must send a written notice to the listed subcontractor by certified mail, overnight mail, or fax, informing the listed subcontractor of the prime contractor’s request to substitute and the reasons for the request. The notice must provide the subcontractor 5 business days to submit a written objection to the substitution.
  3. If the listed subcontractor does not file a timely written objection, the resident engineer must approve the substitution. The resident engineer must approve the new subcontractor following the guidelines under Section 3-507D, “Procedure for Approval or Acknowledgment of Subcontractors,” of this manual. If the removed subcontractor’s firm was a listed DBE, DVBE, or small business, refer to Sections 8-3, “Disadvantaged Business Enterprises," and 8-4, "Disabled Veteran Business Enterprises,” of this manual for additional steps required in the process.
  4. If the listed subcontractor submits timely written objections to the substitution, the district must conduct a hearing. Send written notice of the hearing to the prime contractor and the subcontractor a minimum of 5 business days before the hearing is conducted. The written notice should include a request that any substantiating documents be provided before the hearing.
3-507C (3)  Hearing Process for Substitutions

The intent of the substitution hearing is to give both parties the opportunity to explain to the hearing officer why a substitution should or should not occur. Substitution hearings are conducted informally. Normally, the hearing officer is the district Construction deputy director.

3-507C (3a)   Before the Substitution Hearing
  • Obtain from both parties documents to substantiate the reasons for substitution.
  • Review all information submitted by both parties and provide copies to the hearing officer. If the hearing officer believes legal or other assistance may be required during the substitution or hearing process, the district must contact the construction field coordinator, who will arrange for such assistance as appropriate.
  • The hearing officer must develop a line of questioning to assure that sufficient evidence exists on which to base a decision about the request.
3-507C (3b)   During the Substitution Hearing
  • Audio or video recording may be used to assist in taking notes but is not required.
  • The hearing officer should allow each party sufficient time to present its position and offer a counterargument on the substitution request. List additional supporting information presented by either party in the hearing notes.
3-507C (3c)   After the Substitution Hearing
  • The hearing officer will issue written findings and a decision on the substitution request. As soon as possible after the hearing, send a copy of the decision to the prime contractor and the objecting subcontractor by certified mail with a return receipt.
  • Send the Division of Construction’s labor compliance manager a copy of the final decision.
  • Require the contractor to submit a Form CEM-1201, “Subcontracting Request,” for the new subcontractor.
3-507C (4)  Violations of the Subletting and Subcontracting Fair Practices Act

The following presents typical examples of some of the more common violations of the Subletting and Subcontracting Fair Practices Act by a prime contractor:

  • Subcontracting additional work to a listed subcontractor where the work was not originally listed as subcontracted work and is in excess of the threshold requirements.
  • Using a subcontractor not listed at bid time whose dollar value of work is in excess of the threshold.
  • Substituting subcontractors without Caltrans’ consent.
  • Performing work that the bid documents designated a subcontractor to perform.

If these or any other violations occur, proceed as follows:

  • Discuss the apparent violations with the Construction engineer and the district Labor Compliance officer.
  • If the Construction engineer and district Labor Compliance officer agree that an apparent violation has occurred, send the prime contractor a certified letter including the following text:

You are in apparent violation of Sections 4100 through 4114, “Subletting and Subcontracting Fair Practices Act,” of the Public Contract Code, for work being performed on item(s) ____ of Caltrans Contract No. ____. You will be assessed a penalty of $____ as provided in Section 4110 of the Public Contract Code.

If you wish to dispute this apparent violation or the assessed penalty, you must request a hearing with Caltrans. You will be given 5 days notice of the time and place of the scheduled hearing in accordance with Section 4110 of the Public Contract Code.

If you do not request a hearing, the penalty will be assessed as a permanent deduction on the next progress pay estimate.

  • Send copies of the letter to the subcontractor and to the district Labor Compliance officer.
  • If a contractor requests a hearing, schedule it using the same procedure described in Section 3-507C (3), “Hearing Process for Substitutions,” of this manual.

Occasionally, the contractor will list subcontractors that are not required to be listed. In this case, changes require only an updated subcontracting request to identify the new subcontractor. For the process, refer to Section 3-507D, “Procedure for Approval or Acknowledgment of Subcontractors,” of this manual. If the subcontractor is a DBE, DVBE, or small business, refer to Section 8-3, “Disadvantaged Business Enterprises," or Section 8-4, "Disabled Veteran Business Enterprises,” of this manual for additional requirements.

3-507C (5)  Hearing Process for Substitution Violations

Section 4110 of Public Contract Code requires Caltrans to conduct a hearing for violations of the “Subletting and Subcontracting Fair Practices Act.” The intent of the violation hearing is to determine whether a penalty should be assessed against the prime contractor for the violations. Each party is entitled to present its arguments on the alleged violations. The hearing should follow this process.

3-507C (5a)   Before the Violation Hearing
  • Retain a neutral decision-maker to be the hearing officer. To keep the process as short as possible, a Caltrans employee at senior transportation engineer level or above who is completely out of the chain of command for the project at issue, is preferable.
  • Hire a certified court reporter to transcribe the proceedings. Contact the Division of Construction Labor Compliance program manager for assistance with this process.
  • If necessary, subpoena third parties, such as the subcontractor, or supplier. Contact the Division of Construction Labor Compliance program manager for assistance with this process.
3-507C (5b)   During the Violation Hearing
  • The resident engineer and district Labor Compliance officer testify under oath to the facts that led Caltrans to conclude an issue or apparent violation existed. They should be prepared to provide copies of all documents or other evidence, such as correspondence, daily reports, or payroll records used to reach that conclusion. Caltrans should provide the original documents. Conclusions drawn from the documents can be summarized verbally as testimony.
  • The hearing officer will conduct direct and cross-examination of witnesses under oath.
  • The hearing officer will accept any documents provided by each party and have the court reporter place them into the record as part of the certified transcript. The hearing officer will verbally verify that documents were received by noting what they are and assigning them an exhibit number.
  • The hearing officer will make sure that the only issue addressed at the hearing is the violation of the Subletting and Subcontracting Fair Practices Act, not for example, a DVBE violation or labor compliance issue. For violations of DBE, DVBE, or small business requirements, refer to Sections 8-3, “Disadvantaged Business Enterprises," and 8-4, "Disabled Veteran Business Enterprises,” of this manual.
3-507C (5c)   After the Violation Hearing
  • The hearing officer must evaluate the evidence provided at the hearing and render a decision on the alleged violation within 10 days of the hearing.
  • If the prime contractor is found to be in violation, the contractor must be assessed a penalty, taken as an administrative deduction, ranging from 0 to 10 percent of the subcontract amount. The hearing officer will determine the penalty amount based on the circumstances involved. The hearing officer’s finding is the final Caltrans administrative decision on the application and enforcement of the Subletting and Subcontracting Fair Practices Act.
  • Send the decision to the contractor and, if applicable, the subcontractor. Send a copy to the Division of Construction, which may refer the violation to the Contractors State License Board, in accordance with Section 4111 of the “Subletting and Subcontracting Fair Practices Act.”
  • Deduct the penalty amount from the next estimate.

3-507D     Procedure for Approval or Acknowledgment of Subcontractors

The resident engineer has the responsibility of approving subcontractors on federally funded projects and acknowledging subcontractors on state-financed projects. In general, approving or acknowledging subcontractors is necessary for only first-tier subcontractors. The contractor must submit Form CEM-1201, “Subcontracting Request,” to request subcontracting of contract work. When the contract is awarded, the contractor receives a blank Form CEM-1201, “Subcontracting Request.” Provide additional blank forms to the contractor when necessary. The last page of the form contains instructions for completing the form.

Upon receipt of Form CEM-1201, and before approving the contractor’s request, do the following:

  • Check the contractor’s portion of the form to confirm that the listed subcontractors and work percentages match the bid documents.
  • Verify that subcontractors are not on the Department of Industrial Relation’s debarred contractors list available at:

http://www.dir.ca.gov/dlse/debar.html

  • Complete lines 1 through 6.
  • Verify that subcontractors comply with the DBE, DVBE, and small business goals submitted by the contractor before contract award. Verify that no conflict exists between DBE, DVBE, and small business requirements and the listing requirements of the Fair Practices Act.
  • If the contractor’s request meets all the requirements, sign, date, and distribute the form.

Process the requests in the order of the request number, because lines 2 and 6 contain running balances based on the percentage of work required. Follow the form’s instructions to complete the rest of the form.

3-508        Representative

As required by Section 5-1.16, “Representative,” of the Standard Specifications, contractors, including those in a joint venture, must name in writing one authorized representative and provide the representative’s contact information. Resident engineers must insist that contractors meet this requirement promptly. If the contractor’s representatives from a joint venture disagree with each other, the resident engineer can contractually refuse to work with more than one representative.

3-509        Character of Workers—Workplace Violence and Harassment Prevention

Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the work environment. Refer to Director’s Policy DP-18, “Workplace Violence Prevention Policy” and Deputy Directive DD-49, “Sexual Harassment Prevention.” These policies also apply to any subcontractor, supplier, manufacturer, fabricator, producer, or employee of a contractor in their work with Caltrans personnel, the public, and others on the project and related work locations. Caltrans may discharge a worker from the project for engaging in any of these acts. Refer to Section 5-1.18, “Workplace Violence and Harassment Prevention,” of the Standard Specifications for more information.

Consult with the Construction engineer concerning acts or conduct involving workplace violence or harassment before removing an individual from the project. The Construction engineer may consult with the deputy district director of Administration, Legal, and deputy district director of Construction when appropriate. When a formal investigation is initiated through the Office of Workplace Violence Prevention or Discrimination Complaint Investigation Unit, the Construction engineer assures that manager and supervisor roles and responsibilities are followed in compliance with existing policies. Timeframes associated with formal investigations of acts, or conduct involving workplace violence or harassment, are generally outside Construction’s influence; however, district, region, or headquarters Construction management may need to be kept informed of the formal investigation’s resolution status. Certain issues may require an interim removal of the individual from the project with a possibility future return, whereas, other issues will require permanent removal without further reconsideration. If possible, discuss the decision to remove a worker with the worker’s supervisor and district management before or as soon as possible after issuing the directive. When providing written notification to the contractor, be sure to distinguish the removal type.

If acts of violence appear to have resulted in an assault, immediately contact the California Highway Patrol or other jurisdictional law enforcement agency for their response.

If necessary, arrange for legal support in resolving disputes related to removal of individuals from the project.

If workplace violence or harassment has occurred, Caltrans may consider termination of the contract. Involve Legal support, district management, and the Construction field coordinator early in such discussions.

If a contractor notifies Caltrans of workplace violence or harassment concerns related to a Caltrans employee or Caltrans’ consultant, assure that Caltrans’ policies and procedures are followed in assessment and resolution of the issue. The Construction engineer will consult with the deputy district director of Administration, Legal, and deputy district director of Construction, before reassignment of a Caltrans employee as an interim measure.

None of these procedures affect the engineer’s authority to direct the immediate removal of a worker from the project. A worker who demonstrates incompetence or acts in a disorderly or improper manner that has potential to harm others, themselves, or property, may be removed immediately from the project site. Refer to Section 5-1.17, “Character of Workers,” of the Standard Specifications for more information. Promptly notify the contractor of a determination to remove a worker from the project. If a worker refuses to leave the project site, contact the California Highway Patrol or other jurisdictional local law enforcement agency in the project area. Certain instances may require the construction activity be suspended because of the worker‘s removal. If work is suspended, assure the contractor’s work is left in a safe and secure manner.

3-510        Coordination with Other Entities

Section 5-1.20, “Coordination with Other Entities,” of the Standard Specifications requires the contractor to coordinate with other contractors or entities at or near the job site and materials sources to avoid delays.

3-510A     Permits, Licenses, Agreements, and Certifications

The contractor must possess all required permits, licenses, agreements, and certifications (PLACs) before starting the work covered by them. Verify that the contractor maintains a copy of the required PLACs at the job site.

Unless the PLACs needed to enable the contractor to use a possible local material source or disposal site are included in the information handout, the contractor must obtain them at no cost to Caltrans even if the agreement made between Caltrans and the property owner is included in the information handout.

3-510B     Contractor-Property Owner Agreement

If the contractor is proposing to use a noncommercial material source or disposal site, verify that the contractor has met the requirements of Sections 5-1.20A, “General,” 5‑1.20B, “Permits, Licenses, Agreements, and Certifications,” and 6-1.03, “Local Materials,” of the Standard Specifications.

Arrange a joint meeting with the contractor and agencies that have jurisdiction over the use of the site to discuss the work and the required documentation to be submitted. This documentation may include permits, environmental studies, grading plans, a Stormwater Pollution Prevention Plan, local material plan, and testing imported soil from noncommercial sources, for example, for lead and pH levels.

The contractor may use the sample agreement in this section or Forms CEM-1904, “Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Disposing Construction-Related Material on Commercial Zoned Property Owner's Property”, or CEM-1906, “Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Disposing of Construction-Related Material Suitable for Use on Residential Zoned Property.”

Review Section 7-1.02K(6)(j)(iii), "Unregulated Earth Material Containing Lead," of the Standard Specifications and consult with the district aerially deposited lead coordinator concerning lead level of the existing soils onsite, at:

https://dot.ca.gov/programs/construction/environmental

After the contractor and property owner enter into an agreement and obtain all required documentation, the contractor must submit these for approval. After review and verification of the adequacy of the contractor’s submittals, provide written approval to the contractor to use the site. Refer to Examples 3-5.3, “Sample Approval to Acquire Material From Property Owner’s Property Letter,” and 3-5.4, “Sample Approval for Disposal of Material Outside the Highway Right-of-Way Letter,” for approval letter samples.

If Caltrans has already made arrangements designating a disposal or borrow site and entered into an agreement with a private property owner for disposal, removal, or excavation of material, the designated sites may be made available for contractor use as discussed in Section 7-103H, “Disposal, Staging, and Borrow Sites,” of this manual. In accordance with Section 5-1.20B, “Permits, Licenses, Agreements, and Certifications,” of the Standard Specifications, the contractor must comply with the provisions of the Caltrans-owner agreement if the contractor uses the site or the contractor may make a new agreement with the property owner.

When the contractor makes a new agreement with the property owner that revises the terms of the Caltrans-owner agreements, the new agreement supersedes the Caltrans-owner agreement. Review the new agreement to verify that Caltrans is relieved of its obligations under the terms of the original agreement.

Under some agreements, Caltrans will directly pay the owner of the material or disposal site. Payment must be made to the owner and royalties deducted from payments to the contractor. In the case of county-consummated agreements, royalties usually are deducted in a similar way.

Before contract acceptance, Section 5-1.20B(4), “Contractor-Property Owner Agreement,” of the Standard Specifications requires the contractor to submit a document signed by the owner of the site indicating that the contractor has satisfactorily complied with the provisions of the agreement. If the owner is not satisfied, determine what additional work is necessary before recommending acceptance of the contract and advise the contractor accordingly. Do not delay recommending acceptance of the contract if you determine that the contractor has complied with the terms of the agreement.

An agreement between the contractor and a property owner is not required for procuring local material from an established commercial source.

For the disposal of waste material in a commercial landfill or treatment facility, verify the types of wastes accepted and the permit status of the landfill or treatment facility at the California Water Resources Control Board, CalRecycle, and Department of Toxic Substances Control websites:

https://www.waterboards.ca.gov/water_issues/programs/land_disposal/walist.shtml

http://www.calrecycle.ca.gov/

https://dtsc.ca.gov/hazardous-waste-management-plan/

 

Alternatively, contact the facility to obtain a copy of the facility’s permit.

 

 

Example 3-5.1.  Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Acquiring Construction-Related Material From Property Owner’s Property (1 of 2)

MATERIAL ACQUISITION AGREEMENT

Contract No.: ____________________________
County/Route/Mile post: _____________________________

The contractor, ______________________________________________, (Contractor) has entered into Contract No. _______________ (Contract), with the California Department of Transportation (Caltrans), for work that is described as follows: ___________________________________________________________________________________________________________________________________________________________ (Project).

The owner, _________________________________________________, (Owner) of the real property at __________________________________________________________________________________ (for example, address, location, county and parcel number(s), project station(s), offsets, and other property location information) agrees to allow the Contractor to remove from the Owner’s property approximately _____ cubic yards of ______________________, such as soil, aggregate, asphalt grindings, or other material, for use on the Project.

Owner agrees that the Contractor has assumed ownership of the material once it is removed from the property.

Contractor and Owner agree to abide by the requirements of Section 5-1.20, “Coordination with Other Entities,” of the Standard Specifications. The Standard Specifications are available at:

https://dot.ca.gov/programs/design/ccs-standard-plans-and-standard-specifications

Contractor and Owner agree to obtain and furnish to the Caltrans engineer, all necessary permits, licenses, agreements, and clearances before removing material from the property.

By submission of this agreement to the Caltrans engineer, Contractor and Owner are acknowledging that they have been informed, or otherwise apprised, of all restrictions, laws and permit requirements associated with the transporting and removal of the material from the property and have agreed to abide by the same. These laws include but are not limited to:

  • Local Ordinances—Grading permits for the grading, filling, excavation, storage, or disposal of soil or earthen material.
  • California Fish and Game Code (Section 1602), “Lake or Stream Bed Alteration Agreement”—A permit required before the removal or placement of material in a location where it can pass into waters of the state, directly or indirectly, through causes such as erosion or maintenance.

For the disposal of materials on a property owner’s property, use the appropriate of Forms CEM-1904, “Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Disposing Construction Related Material on Commercial Zoned Property Owner’s Property,” or CEM-1906, “Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Disposing Construction-Related Material Suitable for Use on Residential Zoned Property.”
Other actions may require signatures from both the contractor and a property owner, or a contractor and Caltrans, such as acquiring material from a property owner’s property or approval to dispose of material outside the highway right-of-way. See Examples 3-5.2 and 3-5.3 in this manual.

 

Example 3-5.1.  Agreement Between a Contractor Working on State Facilities and a Real Property Owner for Acquiring Construction-Related Material From Property Owner’s Property (2 of 2)
  • California Fish and Game Code (Section 5650)—A prohibition against the deposition of petroleum products, including asphalt, or any material deleterious to fish, plants, or birds where it can pass into the waters of the state.
  • Federal Clean Water Act (Sections 301 and 402), “General Permit for Discharges of Storm Water Associated with Construction Activity”—A permit is required before soil in an area of one acre or more is disturbed.
  • Federal Clean Water Act (Section 404), “Permit for Discharge of Dredged or Fill Material”—A permit from the U.S. Army Corps of Engineers may be required for the discharge of fill material into waters of the United States including wetlands.
  • State Contract Act, aggregate sources must comply with the Surface Mining and Reclamation Act of 1975 (SMARA).

Owner and Contractor agree that the material will be excavated, removed, and transported, and the property left in a manner that will not cause injury or harm to any person or property. If an injury or harm does occur to any person or property or if any environmental effects or litigation arise as a result of the excavation, removal, transportation, deposition, or the final form in which the property is left, the Contractor agrees to indemnify, defend, protect, and hold harmless Caltrans in any action in law or equity in accordance with Section 7‑1.05, “Indemnification,” of the Standard Specifications.

Pursuant to Section 5-1.20B(4), "Contractor-Property Owner Agreement,” of the Standard Specifications, Owner acknowledges Contractor will submit this agreement to Caltrans as evidence that the Owner has authorized the use of the property as a material source for the project. Owner acknowledges that the Contractor is not authorized to make any representations or agreements on behalf of Caltrans. Contractor and Owner agree that Caltrans is released from any and all obligations to Owner made by Contractor under this agreement and Caltrans is released from any and all obligations to Owner under any previous agreement made between Caltrans and Owner.

Owner and Contractor acknowledge that they have had the opportunity to receive independent legal advice with respect to the meaning, implications, and advisability of entering into and executing this agreement.

 

Date: _______________             __________________________________________________________

(Signature of Property Owner)

Date: _______________             __________________________________________________________

(Signature of Contractor’s Authorized Representative)

 

STATE OF CALIFORNIA—CALIFORNIA STATE TRANSPORTATION AGENCY                                                            GAVIN NEWSOM, Governor

 

DEPARTMENT OF TRANSPORTATION

DIVISION OF CONSTRUCTION

[Resident Engineer’s Address]

[City, CA ZIP]

[PHONE  (Area Code) xxx-xxxx]

[FAX  (Area Code) xxx-xxxx]

TTY 711

www.dot.ca.gov

 

Date: [Month dd, yyyy]

 

[Contractor’s Name]

[Address]

[City, State ZIP]

 

Subject:  Approval to Acquire Material From [property owner’s name and address]

 

Dear [contractor name]:

 

In accordance with the provisions of Sections 5-1.20, “Coordination With Other Entities,” and 6-1.03, “Local Materials,” of the Standard Specifications, you are authorized to remove [insert number] cubic yards of [type of material] (material) from [property owner name]’s property located at [property address]. According to the submitted agreement, [contractor name] and [property owner] have represented all necessary permits, licenses, agreements and certifications were obtained and submitted before the removal of the material and have released the Department of Transportation (Caltrans) from any obligations resulting from its removal.

 

Caltrans does not warrant or guarantee that the material is of any particular type or is suitable for any particular purpose.

 

The agreement also includes [contractor]’s and [property owner]’s promise to hold Caltrans harmless from all claims for injury to persons or damage to property resulting from its removal. The contractor must comply with all parts of the contract including Sections 7-1.06, “Insurance,” and 7-1.05, “Indemnification,” of the Standard Specifications. [Contractor name] must defend, indemnify, and save harmless the state from any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys’ fees, losses or liabilities, in law or in equity arising out of or in connection with [contractor name]’s performance of this contract including acquiring material from [property owner name]’s property.

 

Sincerely,

 

[Name of resident engineer]

 

c:     

bc:

 

“Provide a safe, sustainable, integrated and efficient transportation system
to enhance California’s economy and livability”
Example 3-5.3.  Sample Approval for Disposal of Material Outside the Highway Right-of-Way Letter

STATE OF CALIFORNIA—CALIFORNIA STATE TRANSPORTATION AGENCY                                                            Gavin Newsom, Governor

 

DEPARTMENT OF TRANSPORTATION

DIVISION OF CONSTRUCTION

[Resident Engineer’s Address]

[City, CA  ZIP]

[PHONE  (Area Code) xxx-xxxx]

[FAX  (Area Code) xxx-xxxx]

TTY  711

www.dot.ca.gov

 

Date: [Month dd, yyyy]

 

[Contractor’s Name]

[Address]

[City, State ZIP]

Subject:     Approval for Disposal of Material Outside the Highway Right-of-Way

 

Dear [contractor name]:

 

In accordance with the provisions of Sections 5-1.20, “Coordination With Other Entities,” of the Standard Specifications, you are authorized to dispose of [insert number] cubic yards of [type of material] (material) to [property owner name]’s property. According to the submitted agreement, [contractor name] and [property owner] have represented all necessary permits, licenses, agreements, and certifications were obtained and submitted before the disposal of the material and have released the Department of Transportation (Caltrans) from any obligations from its disposal.

Caltrans does not warrant or guarantee that the material is of any particular type or is suitable for any particular purpose.

The contractor must comply with all parts of the contract including Sections 7-1.06, “Insurance,” and 7-1.05, “Indemnification,” of the Standard Specifications. [Contractor name] must defend, indemnify, and save harmless the state from any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys’ fees, losses or liabilities, in law or in equity arising out of or in connection with [contractor name]’s performance of this contract including disposing of material on [property owner name]’s property.

 

Sincerely,

[Name of resident engineer]

 

c:     

bc:   

“Provide a safe, sustainable, integrated and efficient transportation system
to enhance California’s economy and livability”

3-511        Submittals

The contract may require that plans, working drawings, or samples be submitted to the engineer for authorization. Submittals are considered either “action submittals” or “informational submittals.”

Action submittals consist of written and graphic information and samples that require the engineer’s response. The engineer reviews the submittals, makes corrections, or sends the submittals back to the contractor for correction.

Informational submittals consist of written information required to be provided before the affected work can start, but they do not require a response from the engineer.

Caltrans has a procedure for authorizing plan submittals for facilities that were designed by Structure Design. Resident engineers should contact Structure Design regarding falsework, demolition, and shoring for the procedure when structures were designed by Structure Design. 

3-512        Construction Surveys

Section 5-1.24, “Construction Surveys,” of the Standard Specifications requires Caltrans to place stakes and marks necessary to permit satisfactory completion of the work. For information on construction surveys, refer to Chapter 12, “Construction Surveys,” of the Caltrans Surveys Manual.

The district Surveys Unit will set the construction marks and stakes when the area is ready and will start setting marks and stakes within 2 business days of receiving the request for construction stakes.

Contractors have the option of constructing projects with automated machine guidance (AMG) using digital terrain model (DTM) and digital design model (DDM) files provided by Caltrans. Resident engineers should notify district Surveys and the project engineer when a contractor elects to use AMG. Resident engineers need to verify with project engineers that changes to terrain affecting earthwork quantities such as soil erosion or recent improvements are reflected in the current electronic design files.

For projects with more than 5,000 cubic yards of earthwork, the following specifications are included in the contract:

  • Caltrans makes the electronic design files available to contractors as supplemental project information in Sections 2-1.06B, “Supplemental Project Information,” of the Standard Specifications and special provisions.
  • Sections 5-1.24B, “Department Construction Surveys for Automated Machine Guidance”; 5-1.25, “Automated Machine Guidance”; and 5-1.26, “Grade Quality Control,” of the special provisions.

3-512A     Before Work Begins

Take the following steps before work begins:

  • Consult with the project engineer to confirm that the project site has not significantly changed since the original survey was performed. If there are changes in the project area terrain that could affect earthwork quantities, request that the district Surveys field check the area. Any new data should be added to the existing DTM. Design should calculate new earthwork quantities based on a revised DTM.
  • Consult with the district Surveys regarding the stability of the project control network. Typically, Surveys will check project control and set supplemental control before the start of construction activities. Areas with subsidence and other datum instabilities can cause problems in construction using AMG. Inaccurate control coordinates can cause problems if not caught early.
  • Project control sheets should be included in the project plans. If a project control sheet is not in the project plans, request from the district Surveys a Project Control Form 4.1, “Project Datums and Control,” which identifies the datum, epoch, and the horizontal and vertical coordinates of the survey control points within the project limits. In the absence of a project control sheet in the project plans, provide the contractor the completed Form 4.1 and required attachments.
  • Review the contractor’s AMG quality-control plan for compliance with the requirements in Section 5-1.25, “Automated Machine Guidance,” of the special provisions.
  • Inform the district Surveys that the contractor intends to use AMG. Request that a representative from the district Surveys attend the preconstruction conference, or separate AMG meeting, to discuss AMG requirements with the contractor.
  • At the preconstruction conference, or separate AMG meeting, discuss the following:
    • Contractor’s AMG quality-control plan
    • Global navigation satellite systems (GNSS) rover and just-in-time (JIT) training
    • Project control verification
    • District Surveys’ review of the contractor’s site calibration or localization
    • Project construction staking in accordance with Chapter 12, “Construction Surveys,” of the Caltrans Surveys Manual, and 5-1.24B, “Department Construction Surveys for Automated Machine Guidance,” of the special provisions and Standard Specifications
    • Electronic files
    • Areas with questionable GNSS coverage that may require conventional staking
    • Areas not covered in the DDM, such as some drainage areas, that will require conventional staking
    • Shoulder or gore issues
  • Determine if a GNSS rover will be supplied by the contractor. See Section 5-1.25, “Automated Machine Guidance,’’ of the special provisions. If the contract does not require the contractor to provide a GNSS rover, contact Surveys to request a GNSS rover for use on the project site.
  • Verify that Construction staff receives GNSS rover, JIT training. If a GNSS rover is contractor-supplied, the contractor must provide the training. Otherwise, request that district Surveys provide a GNSS rover and training for Construction staff.
  • Request that district Surveys review and comment on the contractor’s site calibration or localization procedures in accordance with the contractor’s quality-control plan. Confirm that the contractor has performed a GNSS site calibration or localization to the adjusted survey control network.
  • Determine frequency for the verification of the contractor’s GNSS system. Request maintenance records from the contractor on all GNSS equipment used on the project.

3-512B     During the Course of Work

Take the following steps during the course of work:

  • Notify the contractor of any errors or revisions in the lines and grades and whether a revised DDM file will be provided, or whether district Surveys will provide conventional staking for the area involved. Notify district Surveys of any changes in construction staking requirements.
  • Verify that the contractor’s check testing results are submitted as informational submittals.
  • Verify that the contractor is performing quality-control grade checking at the minimum frequency specified in Section 5-1.26, “Grade Quality Control,” of the special provisions. Do this by reviewing quality-control grade-checking reports submitted by the contractor before performing grade-checking verification.
  • For grade-checking verification, the proper tools must be used to assure accuracy. Apply the following regarding accuracy and select the appropriate tools:
    • Less than 0.10-foot elevation tolerance, use either:
      • Level for vertical and GNSS rover for horizontal location
      • Total Station
    • For 0.10- to 0.50-foot elevation tolerance, normally use a GNSS rover for vertical and horizontal, but any failing grades must be checked with a digital level or Total Station
    • Greater than 0.50-foot elevation tolerance, use a GNSS rover
  • For projects that require significant grade checking with an elevation tolerance of less than 0.10 foot, contact the district Surveys unit for assistance.
  • The district Surveys unit will provide additional stakes to assist the resident engineer in performing grade checking where increased accuracy is needed. The possible need for additional stakes should be discussed at the preconstruction conference.
  • In accordance with Section 12.1-6 (a), "Supplemental Project Control," of the Caltrans Surveys Manual, the district Surveys unit, if resourced and requested, will assist the resident engineer with the inspection of line and grade in areas without conventional staking. The district Surveys unit may assist the resident engineer with project inspection using survey equipment, the project model, and survey control.
  • Inspect line and grade by performing grade checking verification and documenting results on Form CEM-3810, “Construction Grade Checking Report.”

3-513        Records

Section 5-1.27, “Records,” of the Standard Specifications requires the contractor to retain project records for at least 3 years after final project payment or resolution of any claims, whichever is later.

These records must be available for inspection, copying, and auditing by state representatives, and must be segregated by work cost categories:

  • Bid item work
  • Change order work that is not extra work
  • Extra work
  • Work performed under a potential claim record
  • Overhead
  • Subcontractors, suppliers, owner-operators, and professional services

This section also requires the contractor to use the Caltrans internet change order billing system. Provide training within 30 days of a contractor’s request, and help the contractor’s representative establish an account after receiving the training. Refer to Section 5-103E, “Change Order Billing,” of this manual for additional information.

3-514        Noncompliant and Unauthorized Work

Section 5-1.30, “Noncompliant and Unauthorized Work,” of the Standard Specifications, specifies the contractor’s responsibility for rejected or unauthorized work and for the removal and replacement of material that does not meet specification requirements.

Unauthorized work includes excavation outside planned slopes and below the grading plane. Unless an approved change order authorizes such excavation, do not permit it.

Except for material that is permitted to remain in place under the specifications for “contract compliance” and “operating range,” reject material represented by a test result not meeting the specified requirement.

Make sure the rejected material gets removed and replaced or remedied in some other manner if it is appropriate. When rejected material is remedied, it may remain in place only if the resident engineer gives written approval. In most cases, the approval requires a contractor-requested change order. For example, a change order would be necessary to approve a contractor’s proposal to remedy out-of-specification aggregate base by adding more aggregate to material deposited previously. A change order is necessary in this situation because the remedy requires a change in specifications. However, the resident engineer’s written approval is not required when the remedy is specified, such as the remedy for damaged galvanizing of pipe or guardrail.

For all material used in the work, make the payment in accordance with the specifications. As an alternative to removal and replacement, do not allow noncompliant material to remain in place without contract payment, unless the specifications, in consideration of “operating range” and “contract compliance,” or an approved change order, provide for such action.

3-515        Job Site Appearance

Section 5-1.31, “Job Site Appearance,” of the Standard Specifications requires the contractor to keep the job site neat and includes provisions for disposal of debris.

3-516        Areas for Use

Section 5-1.32, “Areas for Use,” of the Standard Specifications allows the contractor to occupy the highway only for purposes necessary to perform the work unless arrangements are made with Caltrans for temporary storage. The contractor has no right to make use of the property or to allow others to use it when such use is not reasonably necessary to perform the required work. For example, residency trailers must not be placed within the right-of-way, although one trailer may be allowed for yard security purposes if the engineer approves temporary storage within the right-of-way.

Prohibit any use of a Caltrans right-of-way that conflicts with the specified requirements.

When areas for use are specifically described in the contract, verify the contractor is complying with terms of use. For example, where areas for use include bridge locations, the special provisions are to include restrictions, such as limitations on storage material types, permissible physical locations of storage, required access paths, and maintaining drainage system functionality. Review Structure Policy Directive 1-8, “Material Storage Under Bridges,” for additional information.

If a contractor requests the use of the highway for temporary storage or for any unusual or complicated situations, discuss the request with the Construction field coordinator.

The contractor may enter into a rental agreement to use state-owned property outside the right-of-way.

Also, usable property under bridges or viaducts or other property that cannot be sold as excess, but can be leased, is classified as nonoperating right-of-way, also known as “airspace.” Each district involved with the development of such property has established an inventory. The special provisions will normally cover the use, or prohibit the use, of nonoperating right-of-way by the contractor. When the use of an airspace parcel is not part of the contract and a contractor later requests such use, the contractor must negotiate a lease for the parcel. A standard form is used for the lease and calls for payment based on fair market value. No special consideration will be given because the lessee is performing Caltrans work. Also, all normal provisions requiring insurance and parcel protection will be enforced. Additional requirements will be set forth for parcels that include areas beneath bridges pursuant to Structure Policy Directive 1-8, “Material Storage Under Bridges.”

3-517        Equipment

Section 5-1.33, “Equipment,” of the Standard Specifications, requires each piece of equipment to have a number stamped or stenciled on it. The identifying number should further be referenced to the license plate issued for the piece of equipment. The additional reference is especially important in the case of tractor and trailer combinations where the tractor may pull different trailers on separate occasions.

Use the identifying numbers to keep records of working and idle time for both equipment and operators, including, among other items, contract items, extra work, move in and out, and plant erecting. Some items of work will require more detailed records than other items. Determine which items of work need more detailed records and how much detail will be necessary. Detailed records are also required for costs when the quantity of certain contract items runs more than 125 percent or less than 75 percent of the estimated quantity.

Do not instruct the contractor’s employees in equipment operation, because the contractor may interpret suggestions as the resident engineer’s direct orders. Caltrans personnel must also not adjust the contractor’s equipment or ride on equipment other than that designed for personnel transportation or as required to inspect specific features of the work.

3-517A Renewable Diesel Required Use

The contractor is required to use renewable diesel to fuel their construction equipment when there is a bid item for “Renewable Diesel Report.” Construction equipment subject to Title 13, Section 2449 of Code of Regulations (13 CCR 2449), “General Requirements for In-Use Off-Road Diesel-Fueled Fleets,” must be fueled with renewable diesel. This requirement applies to all prime contractors and subcontractors who perform roadway excavation, except when the subcontracted quantity in roadway excavation is less than 5,000 cubic yards.

Renewable diesel is a biomass-based fuel, which is an alternative fuel to conventional diesel. Renewable diesel and conventional diesel are interchangeable. They both meet the ASTM D975 specification for petroleum diesel. Equipment modification or retrofit is not required before using renewable diesel. Although renewable diesel is produced from similar types of renewable raw materials as biodiesel, it is important to note that renewable diesel and biodiesel are not the same. 

Using renewable diesel rather than conventional diesel in construction equipment reduces harmful emissions of particulates smaller than 2.5 millimeters in diameter, nitrogen oxide, and other greenhouse gases. 

The contractor must submit Form CEM-1211, “Renewable Diesel Report,” for reporting the usage of renewable diesel quarterly within 10 days after each quarter ends and a final report within 10 days after contract acceptance. The contractor is not required to submit the purchase receipt; however, the resident engineer may request for a copy to verify the type of fuel delivered. The renewable diesel purchase receipt should state the delivered fuel is renewable diesel and its blend is R95 or above. The R95 indicates it is 95 percent or more renewable diesel. The resident engineer must review the submitted report for completeness and return the signed report to the contractor, who then submits the completed form to:

Renewablediesel@dot.ca.gov

Payment is made for each authorized quarterly and final renewable diesel report. The resident engineer may withhold $5,000 if the contractor fails to submit a renewable diesel report. The withheld money may become permanent if the contractor does not submit any missing reports within 10 days after contract acceptance.

The contractor may request to opt out of the use of renewable diesel when one of two conditions occurs:

  1. For the month preceding the contract’s bid opening date, the renewable diesel index price is less than or equal to the conventional diesel index price, and after contract award, two consecutive renewable diesel monthly index prices exceed 10 percent of the corresponding conventional diesel monthly index price.
  2. For the month preceding the contract’s bid opening date, the renewable diesel index exceeds the conventional diesel index price, and after contract award, two consecutive renewable diesel monthly index prices exceed 10 percent of the renewable diesel monthly index price for the month of bid opening.

The contractor must identify the renewable diesel index prices and conventional diesel index prices to support their request. The conventional diesel and renewable diesel index prices are posted at:

  http://dot.ca.gov/programs/construction/environmental

The resident engineer must review the opt-out request to determine whether an opt-out condition occurred. Refer to Table 3-5.1. of this manual for an example on how to review an opt-out request of the use of renewable diesel request. Once a request is authorized, the contractor has the option to stop using renewable diesel for the remaining duration of the project. If an opt-out request is approved, resident engineers must inform the Division of Construction at Renewablediesel@dot.ca.gov regarding the approval of the request.

Table 3-5.1.: Review contractor's request to opt out of the use of renewable diesel

Month

Conventional Diesel Price Index

Renewable Diesel Price Index

January

$5.155

$5.134

February

$5.253

$5.245

March

$5.234

$5.342

April

$5.265

$5.351

May

$5.216

$5.795

June

$5.233

$5.759

July

$5.428

$5.816

August

$5.695

$5.892

September

$5.877

$5.897

October

$5.679

$5.592

November

$5.522

$5.458

December

$5.391

$5.371

 

In this example, the preceding table will be used for conventional diesel index prices and renewable diesel index prices.

There are two projects in this example – project A and project B – to demonstrate how to review the two conditions for opting out of the use of renewable diesel.

Project A

Given:  The contract bid opening date for this project is in February.

Given:  Contractor submits an opt out of the use of renewable diesel request in July by providing the renewable diesel average monthly index prices and the conventional diesel average monthly index prices for May and June.

Step 1:  Check the month preceding the contract’s bid opening date.

The preceding month is January, in which the conventional diesel index price is $5.155 and the renewable diesel price index price is $5.134. Because the renewable diesel index price is less than the conventional diesel index price, condition 1 applies.

Step 2:  Gather the information to check the opt-out condition 1.

In May, the renewable diesel index price is $5.795 and the conventional diesel index price is $5.216.

In June, the renewable diesel index price is $5.759 and the conventional diesel index price is $5.233.

Step 3:  Calculate the percentage increase in index prices for May and June.

Percentage Increase in May

= (Renewable diesel index price - Conventional diesel price index)/Conventional diesel index price

= ($5.795 - $5.216)/$5.216

= 0.111 or 11.1 percent

Percentage Increase in June

= (Renewable diesel index price - Conventional diesel index price)/Conventional diesel index price

= ($5.759 - $5.233)/$5.233

= 0.101 or 10.1 percent

Because 2 consecutive renewable diesel index prices exceed 10 percent more than their corresponding conventional diesel index prices after contract award, the opt-out request may be approved.

Project B

Given:  The contract bid opening date for this project is in April. 

Given:  Contractor submits an opt-out of the use of renewable diesel request in October by providing the renewable diesel index prices and the conventional diesel index prices for August and September to support their request.

Step 1:  Check the month preceding the contract’s bid opening date.

The preceding month is March, when the conventional diesel index price is $5.234 and the renewable diesel index price is $5.342. Because the renewable diesel index price is greater than the conventional diesel index price, condition 2 applies.

Step 2:  Gather the information to check the opt-out condition 2

The contract bid opening date for this project is in April, in which the renewable diesel index price is $5.351.

In August, the renewable diesel index price is $5.892.

In September, the renewable diesel index price is $5.897.

Step 3:  Calculate the percentage increase in index prices for August and September from April’s.

Percentage Increase in August from April bid opening.

= (August Renewable diesel index price - April Renewable diesel index price)/April Renewable diesel index price

= ($5.892 - $5.351)/$5.351

= 0.101 x 100 percent

= 10.1 percent

Percentage Increase in September from April bid opening

Index = (September Renewable diesel index price - April Renewable diesel index price)/April Renewable diesel index price

= ($5.897 - $5.351)/$5.351

= 0.102 x 100 percent

= 10.2 percent

Because two consecutive renewable diesel index prices exceed 10 percent more than the renewable diesel index price for the month of bid opening after contract award, the opt out request may be approved.

3-518        Property and Facility Preservation

Section 5-1.36, “Property and Facility Preservation,” of the Standard Specifications makes the contractor responsible for protecting and preserving all property involved in the project, including underground facilities and other facilities that are not openly visible. The resident engineer must be diligent in determining and pointing out the existence of property Caltrans knows about, especially underground facilities and other facilities that are not openly visible. For information about locating and protecting underground utilities, refer to Section 3-518C, “Nonhighway Facilities,” of this manual.

Verify that the contractor does everything required under the contract to protect and preserve property. The contractor may be required to install temporary safeguards to protect existing facilities. However, the contractor’s responsibility includes only what is necessary to protect against damage by construction activity.

If a facility was not sufficiently protected and it is damaged, the contractor is responsible for replacing it with material of equal or better quality.

Make sure that the contractor does not begin any excavation without first contacting the regional notification center.

3-518A     Landscape

The plans and specifications may require that certain trees, shrubs, and other vegetation are preserved. Make sure the contractor is aware of all plant life to be protected.

If any permanent protection is ordered, pay for this work as for any other ordered additional work.

3-518B     Railroad Property

Make sure the contractor’s operations do not interfere with railroad operations. Do not allow the contractor’s operations to encroach on the railroad right-of-way unless it is specifically allowed by the contract. If work is required on or affecting the railroad right-of-way, the railroad requires that a railroad flagger is present.

For any excavations on or affecting railroad property, verify that the contractor submits work plans showing the protection system to be used. The district railroad coordinator is Caltrans’ liaison with the railroad and should submit the work plans to the railroad for approval. The review time for these work plans is 65 days.

3-518C     Nonhighway Facilities

3-518C (1)  General

Some utilities will be relocated or abandoned to clear the right-of-way before construction of a highway project. A utility relocation resident engineer is assigned to coordinate and inspect utility relocation to clear the right-of-way before construction. The resident engineer assigned to a project assumes the responsibility of the utility relocation resident engineer. Make contact with all of the affected utility owners to facilitate the coordination of the work with the contractor’s activities.

The district Right of Way Unit, acting through the district utility coordinator, is responsible for making changes to “notice to owner” forms and right-of-way agreements. The district Right of Way Unit must also make all decisions about financial liability between Caltrans and the owner for utility work. Send change orders involving utility work to the district utility coordinator for concurrence.

3-518C (2)  Duties of the Utility Relocation Resident Engineer

The utility relocation resident engineer must perform the following duties:

  • Review all documents for the utility relocation work, including the “notice to owner” forms, encroachment permits, special provisions, contract plans, and correspondence about utilities not shown on the plans.
  • Check the location of proposed and existing utility installations for possible conflicts with the proposed construction of the highway project.
  • Determine whether Caltrans or the utility will establish necessary survey control and establish lines and grades. If Caltrans is responsible for these items, verify that necessary lines and grades are properly established so that relocation crews can efficiently perform the work. For possible conflicts, compare all facilities with available plans. Also, spot-check survey marks at critical locations for possible conflicts. Require changes where necessary.
  • If utility relocation or abandonment is to occur before the highway project starts and there is sufficient time for entries to be made before contract advertising, submit to the district utility coordinator any changes or notices of newly discovered facilities and enter them on the contract plans or in the special provisions. Document in the resident engineer’s pending file the changes or new facilities that cannot be included in the contract before advertising.
  • If utility relocation or abandonment is concurrent with the highway project, include utility owners and the district utility coordinator in preconstruction conferences with the contractor. On larger projects with a number of utility relocations, it is advisable to schedule a separate meeting for each owner. In these meetings, discuss:
    • Special provision requirements.
    • The contractor’s schedule as it affects relocation work, project safety, and traffic control.
    • Potential problems.

Keep records of such meetings, and restate any decisions made through letters to all parties.

  • Before allowing any change in the planned location of a utility facility or any excavation to determine the location of underground utility facilities, verify that such action complies with Chapter 17, “Encroachments and Utilities,” of the Project Development Procedures Manual.
  • The district utility coordinator will advise the resident engineer when utility relocation work warrants full-time inspection. Keep records of utility relocation work on Form CEM-4601, “Assistant Resident Engineer’s Daily Report.” When inspection is full time, keep records for the following as complete as possible:
  1. Number of workers
  2. Equipment description
  3. Hours worked
  4. Materials salvaged
  • When inspection is part time, record all detail consistent with observed activity. At a later date, the district Right of Way Unit will request these records to verify the utility owner’s final bill.
  • Keep the contractor advised of any utility work that will require a change in the contractor’s work activities. Keep detailed records of any alleged or actual right-of-way delays related to utilities. Make recommendations to the district on any requests for time adjustments resulting from such delays. Refer to Section 3‑804A (2), “Change Order Time Adjustments (Center Block),” of this manual for procedures for time extensions.
  • The contractor is required to notify the resident engineer in writing of discovery of an underground facility not indicated on the plans or in the special provisions. In the absence of written notification from the contractor, document the location of the underground facility and include this documentation in a written confirmation sent to the contractor.
  • Whenever the contractor had not received indication of an existing facility, change orders, including the repair of any damage, will be considered for approval. However, Caltrans will not pay for the repair of damage caused by negligence after the contractor was notified of the existence of a utility facility.
  • Whenever underground facilities are discovered and they are not shown in the plans or the special provisions, notify the district utility coordinator. Instead of relocating the underground facility, the parties involved may reach an agreement with the utility owner about satisfactory protection of the facility before the contractor begins any physical work. If the contractor must protect the utility facility, prepare a change order to cover the payment for such work. The term “protection work,” as used in contract administration, must include any work necessary to assure the utility’s service, reliability, and ability to operate at approximately the same level as before any disturbance from construction activities. This work may include exploration to find exact locations, placement of barricades or warning devices, shoring, or even temporary bypass facilities or permanent relocation. However, this protection work will not include facility repairs for damage resulting from negligent equipment operation around properly protected facilities.
  • Notify the district utility coordinator immediately when a utility facility is in conflict with the planned work. Follow up the notification in writing. Include drawings or plan sheets showing the location of the existing facility, the affected work, recommended action, and the estimated date when the conflict will begin to affect the contractor’s work activities and time of completion. The district utility coordinator must arrange relocation work necessary to resolve the conflict.
  • Determine whether facilities shown on the plans or specifications are being adequately protected from damage as required by the contract. Notify the contractor in writing of any inadequacies.
  • When judging the extent of compliance required by the specifications, take into account the type of facility involved. Consider such things as the consequences of a potential incident. When consequences involve life and limb, do not permit work in such areas unless the contractor has made physical checks of the facility location. When working around hazardous facilities, do not assume calculations made from plans are accurate whether the plans were prepared by Caltrans or the utility owner.

3-519        Maintenance and Protection

3-519A     General

Section 5-1.37, “Maintenance and Protection,” of the Standard Specifications requires the contractor to maintain and protect the work until Caltrans has granted maintenance and protection relief or has accepted the contract. This section also requires the contractor to prevent construction equipment that exceeds legal maximum weight limits from operating on completed or existing treated base, pavement, or structures.

If the highway in question is a state highway, Caltrans’ maintenance forces will maintain the part of the existing highway outside of the limits necessary to construct the bid item work. If the highway or highway part in question is under the control of a local authority, either the local authority or Caltrans maintenance forces will maintain the part of the existing highway outside the limits necessary to construct the bid item work in accordance with the maintenance agreement between Caltrans and the local authority.

The maintenance superintendent, and the resident engineer must have a clear understanding of which portions of the highway Caltrans maintenance forces will continue to maintain during the project’s construction. The following guidelines should be used when discussing roadway maintenance:

  • If new work is required on an existing highway, the owner, Caltrans or the local authority, will continue to maintain the highway or portions of it until the contractor takes possession by erecting signs or begins bid item work. The owner will resume maintaining the highway or portions of it when the contractor is relieved from maintenance responsibility under Section 5-1.38, “Maintenance and Protection Relief,” of the Standard Specifications.
  • Often, on widening or improvement projects, existing highway facilities will be located outside the areas of work where no alterations, modifications, or replacements are planned. In these cases, except for repair of damage because of the contractor’s operations, the owner will maintain the highway facility. If the new work consists of widening the existing highway’s pavement or roadbed and the contractor’s operations are restricted to a portion of the width of the roadway, the owner will continue maintaining the balance of the width.
  • If damage caused by the public occurs to an existing facility within the construction limits and the work required to repair the damage is similar to the work being done by the contractor, the contractor may do the repairs.
  • In case of emergency conditions within construction limits, the maintenance superintendent and the resident engineer should determine how to address the condition quickly and safely.
  • Pay as extra work any work done by the contractor to maintain and repair damage to existing facilities, except for damage the contractor caused.

3-519B     Load Limits

Except for special conditions described in Section 5-1.37, “Maintenance and Protection,” of the Standard Specifications, all equipment hauling material over roads or streets open to public traffic to, from, or within the project must comply with weight limitations required by the California Vehicle Code Division 15, "Size, Weight, and Load." If the contractor wishes to move equipment that exceeds the size or weight limits, the contractor must provide necessary protective measures and repair any damage resulting from those overloads.

Refer to Bridge Construction Records and Procedures Manual, Vol. 2, when the contractor requests moving or placing overloads on structures.

To enforce weight limitations for overloads hauled over public roads and streets, follow the procedure outlined below:

  • Make sure contractors do not place or move equipment that exceeds the weight limits on or across a structure without written authorization.
  • Coordinate with the project’s structure representative on the review of all submittals requesting authorization to place on, or cross a structure with equipment that exceeds the weight limits. If a structure representative has not been assigned, coordinate the review through the bridge construction engineer. Structure Construction personnel will review the overload proposal in accordance with Bridge Construction Memo A-1, "SC Staff Responsibilities for Processes Owned by Others"; Attachment 2, "SC Staff Responsibilities for Performing Standard Construction Activities," and Section 1-17, "Control of Work - Maintenance and Protection - Load Limits," of the Bridge Construction Records and Procedures Manual, Vol. 1.  After written authorization is provided, coordinate with the structures representative or bridge construction engineer to verify that the contractor’s plan to move the overload on or across the structure is implemented in accordance with the authorized plan.
  • Recognize that the most commonly used material transfer vehicles have axle loadings double the legal limit when empty, and triple the legal limit when loaded. When the contract requires the use of transfer vehicles or other types of heavy paving equipment, or the contractor at their option has determined they will use a material transfer vehicle, discuss at the prepaving and preconstruction conferences the contractor’s plans to conform to the load limitation requirements.
  • The assistant resident engineer receiving a weighmaster certificate indicating an overload may accept a load that is not more than 200 pounds over the legal gross weight. However, advise the contractor immediately that if the violation continues, Caltrans will refuse to accept such loads and will notify the California Highway Patrol.
  • When a weighmaster certificate indicates that a load is more than 200 pounds over the legal gross weight, reject the load and notify the California Highway Patrol that overloads are being hauled.
  • Prohibit rejected material from being used in the work unless the load is reduced and is again weighed to adhere to the legal gross vehicle weight.
  • Record the identification of rejected weighmaster certificates in the daily report.

3-519C     Damage by Public Traffic

Only in some cases will Caltrans pay to repair damage to completed permanent facilities caused by public traffic. Completed permanent facilities are any features constructed by the contractor that will become a permanent part of the project. Unless specifically provided for, Caltrans will not pay for damage to temporary facilities such as falsework and forms.

The facility need not be 100 percent complete for the contractor to be compensated, but it must be functional. Caltrans must not pay for damage from public traffic to facilities that are not considered functional yet. For example, guardrail posts or guide marker posts or a bridge still supported by falsework would not be considered functional. However, for a concrete barrier that only requires a specified light abrasive blast finish, Caltrans may pay for damage caused by public traffic because the barrier is functional.

Following are guidelines for determining payment for damage by public traffic:

  • Whenever the resident engineer orders the pavement or deck of a structure opened to public traffic, the contractor is relieved of responsibility for damage to the completed permanent facilities caused by public traffic. The contractor will be relieved of responsibility whether the opening to public traffic occurs before the scheduled opening time, occurs as the natural sequence of events, or occurs as the result of a contract specification. The contractor will be relieved of responsibility for damage to completed permanent facilities caused by public traffic whether traffic is placed on new alignment not previously used by traffic or traffic is placed on new resurfacing opened after daily closures. Compensation for damage caused by public traffic is appropriate if the completed surfacing consists of an asphalt concrete base or leveling course.
  • If the contractor requests an opening ahead of the normal schedule, the following applies:
    • When the opening does not conform to the specified or shown order of work, it must be covered by a change order approved by headquarters, in accordance with Section 5-3, “Change Orders,” of this manual. If Caltrans will not compensate the contractor for damage to completed permanent facilities, the change order must state this fact.
    • When the opening does not conform to the specified or shown order of work, the resident engineer will normally base approval or disapproval of the change order on an evaluation of the benefit to public traffic. If the benefit is substantial, it is appropriate to approve the change order and compensation in accordance with Sections 5-1.38, “Maintenance and Protection Relief,” 5‑1.39, “Damage Repair and Restoration,” and 7-1.03, “Public Convenience,” of the Standard Specifications. If measurable benefits accrue to the contractor, make sure the change order provides a credit to Caltrans.
    • If the benefits to public traffic are borderline or negligible, it is appropriate to approve the change order under the condition that the contractor will be responsible for damage caused by public traffic. The contractor must acknowledge the condition in writing. Again, if measurable benefits accrue to the contractor, include a credit to Caltrans in the change order.
    • If good reason exists for doing so, the resident engineer can refuse to approve a proposed opening.

When the contract temporarily routes public traffic closer to the facilities than the traffic will be after completion of the work, the contractor will be relieved of responsibility for damage to the completed permanent facilities caused by public traffic. For example, Caltrans will relieve the contractor of responsibility if damage occurs to a completed guardrail at the edge of the shoulder when the plans or special provisions require public traffic to be temporarily placed on the shoulder to facilitate construction.

3-520        Maintenance and Protection Relief

The contractor may be relieved from maintaining and protecting certain completed portions or sections of the work under conditions specified in Section 5-1.38, “Maintenance and Protection Relief,” of the Standard Specifications.

Caltrans policy recommends relief for only those portions of the work specifically mentioned in the specifications unless a request for relief fully justifies exceptions.

For completed roadways, the specified length of 0.3 miles is the minimum practical length of completed main roadway on which to recommend relief from maintenance and protection. However, shorter units of completed work, such as on-ramps, off-ramps, frontage roads, or approaches to under-crossings and overcrossings, may also be eligible for maintenance and protection relief.

Do not recommend relief from maintenance and protection on a 0.3-mile section with exceptions within that length unless you provide a valid reason to support the recommendation. Exceptions must be defined in terms of longitudinal sections of highway or certain specified areas. For example, it is unacceptable to recommend maintenance and protection relief for a total project except for the inlet ditch to the right of stations 20+00 to 25+00. It is acceptable to recommend relief for the total project except for stations 15+00 to 27+00, which is the section of highway that could be affected by the uncompleted ditch to the right of stations 20+00 to 25+00.

Completed bridges or other major structures may also receive maintenance and protection relief. For purposes of relief from maintenance and protection, the following describes what constitutes a “bridge or other major structure:”

  • Section 1-1.07, “Definitions,” of the Standard Specifications indicates a structure will be considered a bridge if the plans or other portions of the contract so identify it.
  • Other structures to be considered of major importance are culverts in excess of 6.5 feet in diameter or of approximate equivalent area.
  • A facility not meeting the listed criteria will be considered of major importance only if its final cost exceeds 5 percent of the original total bid for all of the bid items, including mobilization.
  • Projects with noncontiguous locations may be accepted location by location, provided the work at each requested location is complete. Noncontiguous areas of work outside the right-of-way on major projects may also be accepted if the procedures outlined in Section 3-523C, “Work for Other Agencies or Owners,” of this manual have been followed.

Maintenance and protection relief excuses the contractor from responsibility for repair of damage from causes other than those resulting from the contractor’s own operations or from the contractor’s negligence. Before recommending a request for maintenance and protection relief, determine that the requested work will not be damaged as a result of incomplete adjoining work. For example, a roadway section may be complete while an upstream culvert remains incomplete. Water flowing past the uncompleted culvert may damage a portion of the requested roadway section.

Before recommending maintenance and protection relief, analyze each situation critically to determine if it qualifies in all respects. Indiscriminate recommendations for relief from maintenance and protection must not jeopardize the project’s proper completion. Once the contractor is relieved from maintaining and protecting a portion of the work, the contractor cannot be required to do more work on it except by agreement or to remedy defective work or materials.

If the engineer has any doubts about the requested area’s eligibility, deny the contractor’s request for relief from maintenance and protection. Inform the contractor in writing so no doubt exists as to the status of the contractor’s request and the nature of uncompleted work. Section 5-1.38, “Maintenance and Protection Relief,” of the Standard Specifications states that the portion of work must have been completed under the contract and to the engineer’s satisfaction before it becomes eligible for maintenance and protection relief.

For landscape projects, consider relief from maintenance and protection requests for non-plant establishment related items of work, such as for fences, curbs, sidewalks, asphalt concrete placed as island paving, and seal coats placed on islands, once the plant establishment period begins. Such items may not have a direct bearing on the success or failure of plant establishment, and it is unreasonable to require the contractor to maintain them. To be consistent with the policy for nonlandscape contracts, this type of relief from maintenance and protection responsibility will be granted for an entire group of items, not item by item. An item that protects the planting or is involved in plant establishment should not be submitted for maintenance and protection relief. This category typically includes planter boxes, sprinkler systems, header boards, or mesh.

Safety roadside rest areas will not be accepted item by item but may be recommended as completed units.

Maintenance and protection relief denotes recognition of completed work. Therefore, the resident engineer must conduct a maintenance review of areas that will be granted maintenance and protection relief. Also, recommendations for this action on work for other public agencies or owners require the concurrence of these agencies and owners. Before recommending relief from maintenance and protection on such portions of the work, complete the procedures outlined in Sections 3-523C, “Work for Other Agencies or Owners,” 5-006C, “90 Percent Review,” and 5-006D, “Final Inspection Review,” of this manual. In the communication recommending relief, include a statement that the agency authorities concur or, in the absence of such concurrence, include justification for relief.

For requests for relief from maintenance and protection, use Form CEM-0501, “Relief from Maintenance.”

3-521        Requests for Information and Potential Claim Records

3-521A     General

During the course of the project, and up to receiving the proposed final estimate, the contractor must submit a contract dispute or protest in the form of a request for information. If the request for information leads to a dispute, the contractor must follow the three-part potential claim process specified in the contract. The three parts of the potential claim process are the initial potential claim record, the supplemental potential claim record, and the full and final potential claim record.

Verify that on all potential claims-related documents, the date and time of receipt, and the name of the person who received it are noted.

Verify that the request for information and potential claim documents are complete and timely. If the information is incomplete, notify the contractor of the deficiencies and request that the contractor resubmit the document with the complete information. If the contractor failed to submit the request for information or potential claim record within the specified time, notify the contractor that the submittal was not timely and state that this failure to comply with the procedure provided for in the contract is a waiver of the potential claim, a waiver of the right to a corresponding claim for the disputed work, and a bar to arbitration.

Some sample dispute response clauses are in Section 3-521E, “Sample Dispute Response Clauses,” of this manual.

3-521B     Requests for Information

The contractor may submit a request for information at any time to clarify contract provisions, notify the resident engineer of a change in condition, or file a protest. The request for information must be in writing and delivered to the resident engineer, in person, by mail, or by email, by the contractor.

Using a request for information, the contractor may protest an approved change order not executed by the contractor, compensation for work specified in the change order, adjustment of contract time, Weekly Statement of Working Days, progress payment, delays, liquidated damages, or any decision by the resident engineer.

Note that not all requests for information will result in a potential claim.

Upon receipt of a request for information used as a protest, however, the resident engineer starts a section in Category 62, “Disputes,” of the project records. Additional information, including related documents and correspondence will be included in this section.

The resident engineer references the contractor’s request for information and must respond in writing within the time specified in the contract. A response should include acknowledgment that the request for information was received and may include the information requested, an invitation for further discussion, a request for clarification, or the anticipated date for a complete response.

3-521C     Potential Claim Records

The contractor submits a written potential claim record when the contractor believes additional compensation is due in accordance with Section 5-1.43, “Potential Claims and Dispute Resolution,” of the Standard Specifications. Follow the potential claim record process when protested issues and disputes are not resolved.

The contractor provides a unique identification number for each potential claim submitted. For supplemental potential claim records and full and final potential claim records, the contractor must certify each form with reference to California Government Code, Title 2, Sections 12650–12655, “False Claims Actions.”

If a supplemental potential claim record or a full and final potential claim record is received without this certification or is otherwise incomplete or incorrectly filled out, notify the contractor in writing that it was not submitted in accordance with Section 5‑1.43, “Potential Claims and Dispute Resolution,” of the Standard Specifications and that the contractor is allowed 15 days to correct the deficiencies or withdraw the potential claim. If the corrected record is not provided in the required time, notify the contractor in writing that Caltrans will not consider the potential claim. Discuss this latter notification with the construction engineer.

If the nature, circumstances, or basis of the claim differs from the previous potential claim record, reject the record and return it with a letter indicating which component has changed.

3-521C (1)  Form CEM-6201D, Initial Potential Claim Record

The initial potential claim record provides a notification to Caltrans of a disputed issue. This record provides the nature and circumstances of the dispute and gives the parties the opportunity to mitigate the associated costs with the goal of an early resolution.

When the contractor’s initial potential claim record is not timely, Caltrans may be disadvantaged by limiting available corrective actions. The timeliness of the original initial potential claim record is one of the many considerations in evaluating a contractor’s protest, especially when quantifying the contractor’s damages and compensation requests.

3-521C (1a)   Resident Engineer’s Response to the Initial Potential Claim Record

The resident engineer’s response to the initial potential claim record acknowledges the dispute, directs the contractor on how to proceed with the disputed issue, and informs the contractor of the contractual time requirements to submit the supplemental and full and final potential claim records.

The resident engineer must determine if the contractor’s dispute has merit. If the dispute does have merit, the resident engineer must take appropriate action within the scope of the contract and within the resident engineer’s authority to resolve the dispute. If the resident engineer cannot resolve the dispute or lacks the authority to act, the resident engineer should discuss the issue with the construction engineer and the structure construction engineer, if appropriate.

3-521C (2)  Form CEM-6201E, Supplemental Potential Claim Record

The supplemental potential claim record provides justification for additional compensation and adjustments with references to the appropriate provisions of the contract. The record must also include the estimated costs and effects to the schedule. The contractor must update the cost estimate or the effect to the schedule as soon as a change is recognized.

Upon receipt of Form CEM-6201E, “Supplemental Potential Claim Record,” analyze the contractor’s potential claim. This may involve discussing the potential claim with peers, subject matter experts, and district management.

Potential claims involving differing site conditions that lack merit must also include an internal review by a management review committee as referenced in Section 3-404, “Differing Site Conditions,” of this manual.

3-521C (2a)   Resident Engineer’s Response to the Supplemental Potential Claim Record

Make sure the supplemental potential claim record is timely and is submitted on Form CEM-6201E, “Supplemental Potential Claim Record.”

Once you receive a complete potential claim record submittal, evaluate it and provide a detailed response letter to the contractor within the time specified in the contract. The response letter must include the following sections:

  • Background—Explain the circumstances that led to the dispute. Include only information such as events, dates, discussions, meetings, memos, and letters.
  • Contractor’s Position—Base the position on the information provided in the contractor’s supplemental potential claim record. Use direct quotes from the information provided by the contractor without attempting to interpret or clarify them.
  • Resident Engineer’s Position—State the merits of the potential claim clearly and concisely. Fully document the contract requirements such as permits, plans, specifications, and other requirements supporting the findings.
  • If the potential claim is determined to have no merit, remind the contractor of the option to further pursue the potential claim as specified in the contract. Inform the contractor of the contractual time requirements for the alternative dispute resolution procedures and for submitting the full and final potential claim record.

When properly prepared, the response letter serves as the basis for the preliminary construction claim findings.

Follow the guidelines in Section 3-521D, “Documentation Guidelines for Disputes,” in this manual.

3-521C (3)  Form CEM-6201F, Full and Final Potential Claim Record

Upon receipt of Form CEM-6201F, “Full and Final Potential Claim Record,” evaluate it and respond within the time specified in the contract. Do not respond to the contractor if the full and final potential claim record is submitted after contract acceptance. Review and consider the information before processing the proposed final estimate.

3-521C (3a)   Resident Engineer’s Response to the Full and Final Potential Claim Record

The requirements and format for the resident engineer’s response to the full and final potential claim record are the same as outlined in Section 3-521C (2a), “Resident Engineer’s Response to the Supplemental Potential Claim Record.” Refer also to Section 3-521D, “Documentation Guidelines for Disputes,” in this section.

3-521D     Documentation Guidelines for Disputes

The following are guidelines for keeping records and responding to requests for information and potential claim records:

  • Check that reports and documents are factual and accurate. Use specific statements in daily reports. An entry such as, “Told the contractor that . . .” is not satisfactory, whereas “I told Foreperson Smith that . . .” is satisfactory. A general conclusion about the effect of a conversation is not helpful; a statement of the conversation is better.
  • Answer letters containing questionable or erroneous statements made by the contractor in writing by refuting or correcting the contractor’s statement.
  • Put orders and decisions in writing. Confirm any important statement about the unacceptability of the work in writing. Before ordering the contractor to proceed with extra or additional work, obtain approval. If the contractor verbally informs you of a dispute, advise the contractor to comply with the applicable requirements of the Standard Specifications. Include notes on verbal discussion in the resident engineer’s daily report.
  • Identify the issue and try to come to agreement with the contractor on a brief description of the dispute. Identify areas of agreement and disagreement within the issue. This will help to minimize the peripheral items that could cloud the dispute.
  • The engineer’s response to the contractor’s supplemental potential claim record will serve as the basis for the Caltrans position paper in alternative dispute resolution proceedings.
  • Focus on costs specific to the dispute, but do not discuss any funding availability, such as project contingency balance, with the contractor.
  • If a dispute arises during the work’s progress, keep accurate records of the operations to eliminate subsequent arguments related to work costs. During the progress of the disputed work, make regular tentative agreements for the labor, equipment, or material quantities involved.
  • Take preconstruction and project progress photographs. Photographs and videos are valuable in confirming job conditions at a particular point in time. Dated pictures of areas where work is not underway may be as important as pictures of construction operations or completed work.
  • Record the full names of all of the contractor’s personnel involved in any dispute. These individuals may need to be located later. Information such as full names and addresses of the contractor’s personnel are contained in the certified payrolls.
  • Record equipment information such as description, model number, contractor’s equipment number, size, and capacity to help calculate and confirm costs associated with disputes.

Category 62, “Disputes,” of the project records must contain copies of all documents related to every dispute on the project including progress schedules. This information provides the basis for preparing the preliminary construction claim findings. Follow the procedures outlined in Section 5-102, “Organization of Project Documents,” of this manual to provide a good basis for documenting claims.

3-521E     Sample Dispute Response Clauses

Use the following sample clauses in responses to requests for information and potential claim records. Edit the clauses to fit the specific situation.

3-521E (1)  Request for Information for Notification of a Possible Differing Site Condition
3-521E (1a)   General

“I have received your request for information dated [insert date] providing notification of a possible differing site condition encountered at [give location]. It is my understanding that you believe the material encountered differs materially from that shown on the plans or is considered to be of an unusual nature . . .”

3-521E (1b)   If No Merit

“I have investigated the material and the contract documents [specify which documents], and have found that the material does not vary from that shown on the contract documents. Therefore, no additional cost or extension of contract time is warranted to complete the work.

“If you still believe a differing site condition exists, follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (1c) If Merit

“I have investigated the material and the contract documents [specify which documents], and have found that the material does vary from that shown on the contract documents. Therefore, additional cost or extension of contract time may be warranted to complete the work.

“Please furnish me with the additional costs that may result from the increased work as a result of this differing site condition.”

3-521E (1d)   If Partial Merit

“I have investigated the material and the contract documents [specify which documents], and have found that the material from [specify locations or stations] does not vary from that shown on the contract documents and the material from [specify locations or stations] does vary from that shown on the contract documents. Therefore, additional cost or extension of contract time may be warranted to complete the work from [specify locations or stations].

“Please furnish me with the additional costs for the work from [specify locations or stations] that may result from the increased work as a result of this differing site condition.”

3-521E (2)  Requests for Information to Protest a Time Adjustment Determination in a Change Order

Use the following clauses in your response to a protest of time determination in a change order:

3-521E (2a)   General

“I have received your request for information dated [insert date] to protest the time adjustment under Change Order No. [x]. I understand that you are protesting the determination of a time extension of [y] working days for this change and you believe you are entitled to a time extension of [z] working days.”

3-521E (2b)   If No Merit

“My review of Change Order No. [x], anticipated work, and the progress schedule indicates that the work required by the change order does not affect the controlling operation [if a critical path method (CPM) review was performed substitute “critical path” for “controlling operation”]. Therefore, you are not entitled to an extension of contract time.

 “If you still believe that a time extension is warranted, please provide documentation to support your position, either in narrative form or an analysis showing the effect of this work on the completion date of the project. Continue to follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (2c) If Merit

“My review of Change Order No. [x], anticipated work, and the progress schedule indicates that the work required by the change order affects the controlling operation [if a CPM review was performed, substitute “critical path” for “controlling operation”]. I have determined a time extension of [y] days associated with the work.

“Change Order No. [x] will be revised to reflect this adjustment of contract time. Please review and sign the revised change order if you agree with the change.”

3-521E (2d)   If Partial Merit

“My review of Change Order No. [x], anticipated work, and the progress schedule indicates that the work required by the change order does not alter the controlling operation [if a CPM review was performed substitute “critical path” for “controlling operation”] as you have indicated. My review indicates that the timeline for the controlling operation [if a CPM review was performed substitute “critical path” for “controlling operation”] was lengthened by [number of days or dates]. Therefore, you are entitled to an extension of contract time by [y] days. Change Order No. [x] will be issued to provide an adjustment of contract time for [number of days or dates].

“If you still believe that an additional time extension is warranted, please provide documentation to support your position, either in narrative form or an analysis showing the effect of this work on the completion date of the project. Continue to follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (3)  Requests for Information to Protest a Weekly Statement of Working Days

Use the following clauses in your response to a request for information to protest the determination of contract time in a Weekly Statement of Working Days:

3-521E (3a)   General

“I have received your request for information dated [insert date], to protest the Weekly Statement of Working Days No. [x]. It is my understanding that you are protesting the charging of [specify day or days protested] as a working day because [specify the contractor’s reasons for protesting the days in question].”

3-521E (3b)   If No Merit

“The Weekly Statement of Working Days was completed in accordance with Section 8-1.05, ‘Time,’ of the Standard Specifications. Our records indicate that you were working on the controlling operation more than 50 percent of the scheduled work shift in question. This constitutes a working day as defined in Section 1-1.07, ‘Definitions,’ of the Standard Specifications. If you believe that the day(s) in question should be considered nonworking days, please submit documentation in support of your protest. In the absence of such documentation, the Weekly Statement of Working Days No. [x] will remain unchanged.

 “If you decide to pursue this as a potential claim, follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (3c)    If Merit

“I have reviewed the project records and have determined that [insert date] should be revised to indicate a nonworking day. Attached is the revised weekly statement of working days no. [x].”

3-521E (3d)   If Partial Merit

“Our records indicate that you were working on the controlling operation for the entire day on [insert dates] but not on [insert dates]. [insert dates] should be revised to indicate a nonworking day. Attached is the revised Weekly Statement of Working Days No. [x].

“The Weekly Statement of Working Days was completed in accordance with Section 8-1.05, ‘Time.’ of the Standard Specifications. Our records indicate that you were working on the controlling operation more than 50 percent of the scheduled work shift in question. This constitutes a working day as defined in Section 1-1.07, ‘Definitions,’ of the Standard Specifications. If you believe that the days in question should be considered nonworking days, please submit documentation in support of your protest. In the absence of such documentation, the revised Weekly Statement of Working Days No. [x] will remain unchanged.

“If you decide to pursue this as a potential claim, follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (4)  Potential Claim Record

Use the detailed format and response guidelines in Section 3-521C, “Potential Claim Records,” of this manual in conjunction with the following clauses to respond to a potential claim record. Also, refer to Section 3-521C (1a), “Resident Engineer’s Response to the Initial Potential Claim Record,” 3-521C (2a), “Resident Engineer’s Response to the Supplemental Potential Claim Record,” and 3-521C (3a), “Resident Engineer’s Response to the Full and Final Potential Claim Record,” of this manual.

3-521E (4a)   General

“I have received your [state initial, supplemental, or full and final] potential claim record dated [insert date], regarding [state the issue]. It is my understanding that this potential claim is the result of a dispute over [state the dispute and give background of the dispute].

“I understand your position to be [quote the contractor’s position as described in the potential claim record].”

3-521E (4b)   If No Merit

“I have reviewed your [state initial, supplemental, or full and final] potential claim and based on the information you provided I find that it has no merit. [Explain why in detail.]

“If you decide to pursue this as a potential claim, follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications.”

3-521E (4c)    If Merit

“I have reviewed your [state initial, supplemental, or full and final] potential claim and based on the information you provided I find that it has merit. [Explain why.] Change Order No. [x] will be issued to address the points that have merit. Please provide me with the cost associated with your notice of potential claim for review and determination of compensation.”

3-521E (4d)   If Partial Merit

“I have reviewed your [state initial, supplemental, or full and final] potential claim and based on the information you provided I find that the following points have merit: [List points and explain why in detail.] The following points do not: [List points and explain why in detail.]

“If you decide to pursue this as a potential claim, follow the procedures and processes described in Sections 5-1.42, ‘Requests for Information,’ and 5-1.43, ‘Potential Claims and Dispute Resolution,’ of the Standard Specifications. Change Order No. [x] will be issued to address the points that have merit. Please provide me with the cost associated with your notice of potential claim for review and determination of compensation.”

3-521E (4e)   Request Additional Information

“I have reviewed your [state initial, supplemental, or full and final] potential claim record [or request for information]; however, I am unable to make a determination based on the information you provided. Please provide me with the following information so I can make a determination regarding your potential claim.”

3-522        Alternative Dispute Resolution Processes

Alternative dispute resolution helps resolve disputes and potential claims, mitigate damages, and maintain project schedules.

The alternative dispute resolution processes are partnering, dispute resolution ladders (DRL), dispute resolution advisor (DRA), and dispute resolution board (DRB). Their use is based on the size and duration of the contract. Refer to the special provisions and Sections 5-1.09, “Partnering,” and 5-1.43E, “Alternative Dispute Resolution,” of the Standard Specifications to determine which alternative dispute resolution process is appropriate for the contract.

In order for the alternative dispute resolution processes to be most effective, they must be set up and used in accordance with the applicable provisions. Set up partnering, the DRL, the DRA, or the DRB as quickly as possible within the time specified to assure timely referral and aid in resolution of dispute issues.

3-522A     Partnering-Facilitated Dispute Resolution

As one of the alternative dispute resolution processes, partnering is used to develop and maintain trust and collaboration among project team members. Using partnering best practices provides a process for the project team to resolve project issues and prevent them from becoming disputes. Refer to Section 5-1.09, “Partnering,” of the Standard Specifications, and Section 3-504, “Partnering,” of this manual for further guidance.

If facilitated dispute resolution is included in the partnering charter for the project and the project team is no longer having a productive dialogue regarding a dispute, discuss with the contractor the use of facilitated dispute resolution as a way to reestablish productive dialogue. Schedule facilitated dispute resolution within the timelines provided in Section 5-1.43E(3)(d), “DRB Traditional Dispute Meeting,” of the Standard Specifications. Partnering-facilitated dispute resolution is not a substitute for any other contract requirement or administrative claims procedure or provision. Refer to Chapter 7, “Resolving Disputes,” of the Field Guide to Partnering on Caltrans Construction Projects for further direction and guidance.

3-522B     Dispute Resolution Ladder

Projects with bids less than $3 million may use the partnering dispute resolution ladder (DRL). The optional DRL process will be included in the special provisions or can be added with a no cost change order.

The DRL is an optional part of the alternative dispute resolution process. If used, the DRL runs concurrently with requests for information and potential claim records. It is not a substitute for any other contract requirement or administrative claims procedure or provision.

3-522B (1)  Dispute Resolution Ladder—Establishment
  • At the preconstruction conference, kickoff partnering workshop, or any time before contract acceptance, the resident engineer offers the contractor the option of using a DRL as an alternative dispute resolution process. When accepted by the contractor, the resident engineer should document the DRL by filling out Form CEM-6208, “Dispute Resolution Ladder Establishment,” which lists the names, titles, and contact information for Caltrans and contractor personnel. Caltrans’ dispute resolution ladder, in ascending order, is as follows:
    • Field Level—Inspector
    • Level 1—Resident Engineer
    • Level 2—Construction Engineer
    • Level 3—Construction Manager, Office Chief, or Deputy District Director of Construction, as designated by the Deputy District Director of Construction.

The resident engineer and the contractor’s representative may use Form CEM-6209, “Elevation of a Dispute,” to define the dispute before elevating it.

The resident engineer does not pay the contractor’s costs for participating in the DRL process.

3-522B (2)  Dispute Resolution Ladder—Operation

A dispute will be advanced up the ladder when an agreement between the parties on a defined level cannot be reached within the time specified. A dispute can be elevated sooner if both representatives on the defined level agree and the representatives at the next higher level concur.

3-522C     Dispute Resolution Advisor and Dispute Resolution Board

A DRA or a DRB is used on a project with at least 100 working days. A DRA is an experienced neutral party that Caltrans and its contractor use to help resolve disputes on contracts with a total bid of $3 million to $10 million. A DRB is a three-member board of knowledgeable neutral parties that Caltrans and the contractor use to resolve disputes on contracts with a total bid of more than $10 million.

Use of a DRA or DRB allows knowledgeable and experienced board members who are not directly involved with the contract to review and analyze a dispute and provide their recommendations. Although these recommendations are not binding, they are valuable in helping to resolve disputes before disputes become claims. These recommendations become important if the dispute is carried over to arbitration.

Disputes are documented in a potential claim record. They must be referred to the DRA or DRB, and a dispute meeting must be held within the timelines specified. Generally, it is not in Caltrans’ best interest to wait to have a dispute heard. Rarely do disputes get smaller as time passes. Furthermore, memories fade with time, and project personnel often move on. Adhering to the timelines is key to resolving disputes as quickly and as fairly as possible. For DRA and DRB suggested operating procedures and traditional dispute meeting timelines, refer to:

https://dot.ca.gov/programs/construction/dra-information-and-candidate-list

https://dot.ca.gov/programs/construction/drb-information-and-candidate-list

If a contractor is not adhering to the specified timelines for referring a dispute to the DRA or DRB, remind the contractor, in writing, of the contractual requirement to do so. If a contractor indicates a wish to defer having the dispute meeting, a new date can be arranged if the resident engineer agrees to the request. If not, remind the contractor of the contractual requirements regarding the timelines for having a dispute meeting.

The Division of Construction’s alternative dispute resolution (ADR) engineer maintains the DRA and DRB websites and a list of prequalified member candidates.

3-522C (1)  Establishment

When contractually required, the parties establish and use the DRA or DRB as part of the administrative dispute resolution and potential claims process. Early establishment of the DRA and DRB is important for resolving disputes as they occur. Delays may affect the ability of the DRA or DRB to accurately analyze disputes without a baseline reference.

Use the following procedure to select the best candidates from the prequalified lists. Links to the lists can be found under “Dispute Resolution” at the Division of Construction’s internet website.

  1. Review the list of names and associated summaries of experience to find the most qualified candidates for the particular project.
  2. Select a candidate with the knowledge and work history that best match the type of project.
  3. Select a candidate with dispute resolution experience in the areas with the largest potential for dispute.
  4. Contact the Division of Construction field coordinator and ADR engineer for guidance and additional information about the prospective candidates.
  5. Contact the candidates, provide them with the project information, and determine their desire and availability to serve. If a candidate is willing and available to serve, request a disclosure statement with an updated résumé.

The Division of Construction field coordinator must approve the candidates nominated by Caltrans and the third DRB candidate. The division field coordinator must also approve candidates not on the Caltrans prequalified list.

Nominating a DRA or DRB candidate not on the prequalified list requires that the candidate has completed training by the Dispute Resolution Board Foundation. In addition, the candidate needs to have a minimum of 10 years of experience in or directly related to public works, heavy-highway construction projects with, or on behalf of, federal, state (particularly Caltrans), or local government agencies. The experience must be any combination of the following:

  1. Supervisor, manager, or executive in public-works heavy-highway construction contracts with emphasis in resolving disputes arising out of those contracts.
  2. Attorney representing parties in litigating or arbitrating public-works, heavy-highway construction contract claims.
  3. Judge or arbitrator adjudicating or otherwise resolving public-works, heavy-highway construction contract claims.

Require the candidate to submit a candidate application and send the application to the ADR engineer who processes it. A link to the application can be found at the Division of Construction website. If the candidate is approved and agrees, the candidate is added to the prequalified list by the ADR engineer.

Submit the names, disclosure statements, and résumés of the dispute resolution candidates to the contractor at the preconstruction conference, and ask the contractor to do the same. Jointly with the contractor, review the disclosure statements and résumés of the potential DRA or DRB candidates for qualifications and possible conflicts of interest. Jointly select the most qualified candidates as the DRA or DRB members in accordance with the specifications.

Upon selection, promptly notify the DRA or DRB member in writing, with a courtesy copy to the contractor. Notify the candidates not selected that they are no longer under consideration for the project.

The DRA must complete Form CEM-6206, “Dispute Resolution Advisor (DRA) — Establishment Report,” upon establishing the DRA and email it to the resident engineer and to the ADR engineer at ADR.Engineer@dot.ca.gov.

For the DRB, require the first two approved members to nominate the third member and provide the appropriate documentation for the third member’s approval. Once there is approval of all three members, the DRB chair must complete Form CEM-6202, “Dispute Resolution Board (DRB) — Establishment Report,” upon establishing the DRB and email it to the resident engineer and the ADR engineer at ADR.Engineer@dot.ca.gov.

Sign the DRA or DRB agreement as soon as you have established the members. The Dispute Resolution Advisor Agreement and the Dispute Resolution Board Agreement are available through the Division of Construction website.

3-522C (2)  DRA or DRB Member Replacement

With 15 days’ notice, a DRA or DRB member may be replaced, or the member may voluntarily resign. Caltrans or the contractor may terminate the service of a member who fails to comply fully with all required employment and financial disclosure conditions of the DRA or DRB membership.

If Caltrans wants to replace the DRA or Caltrans-nominated DRB member, the resident engineer discusses the proposal with district management. If district management concurs, the district submits its recommendation to the Division of Construction’s field coordinator for approval before notifying the advisor or board member and the contractor.

When the need arises, a replacement member is nominated and approved using the appropriate contractual selection process. In the case of a board member, if the previous member was the chair, the new board must agree on a new chair. In the case of an impasse, the two original DRB members may select the chair by blind draw. Caltrans, the contractor, and the DRA or DRB members sign a revised agreement. The replacement process begins immediately upon receiving a notice of termination and is completed within 15 days.

3-522C (3)  Operation

Alternative dispute resolution is for the benefit of both parties to the contract, so either party may refer a dispute to the DRA or DRB.

As a complement to the agreement, the DRA or DRB chair may produce operating procedures with details for conducting meetings. Work with the DRA or DRB and the contractor to reach an equitable agreement on the meeting process for the individual project circumstances. Verify that the operating procedures comply with all the contract requirements and the DRA or DRB agreement before approving them.

For projects with federal funding, notify the Federal Highway Administration (FHWA) representative when an issue is referred to the DRA or DRB. Coordinate with the FHWA representative on full-oversight projects to assure that the agency participates in any related change order. Give the FHWA representative the date of dispute resolution meetings, information regarding the dispute, and the DRA’s or DRB’s recommendation.

3-522C (3a)   Informal Dispute Meetings

The informal meeting is meant for small, uncomplicated disputes. The informal meeting is optional and is meant to reduce the duration and effort needed to hear a dispute. All parties must agree that the informal process is appropriate for resolving the dispute. The informal dispute process parallels the traditional process.

Typically, very little documentation is provided at an informal dispute meeting. The parties generally just tell their story to the DRA or DRB members and await the recommendation, which should come the same day as the meeting. Use of the informal process must not delay the hearing of a dispute using the traditional process.

3-522C (3b)   Traditional Dispute Meetings

The traditional dispute meeting must be used for more complex issues or those issues that were not resolved informally. A traditional dispute meeting is mandatory if the contractor wishes to pursue the dispute.

The contractual time period for submitting the position paper and having a dispute meeting is in the specifications and agreements. Remind the contractor of the contractual time period for referring disputes to the DRA or DRB when responding to the supplemental potential claim record.

When a dispute is referred to a DRA or DRB, prepare the position paper for submittal to the contractor and the DRA or DRB in advance of the oral presentation at the meeting. Present an effective position paper, because the recommendation may be introduced in arbitration proceedings. Remember, the purpose of the position paper is to persuade the DRA or DRB that your position complies with the contract.

Use the following format for the position paper:

  • Table of Contents.
  • Description of the dispute—A summary paragraph defining both the nature of the dispute, as agreed upon with the contractor, and the clearly defined basis for denying compensation.
  • Background or chronology of the dispute—The history of the issue in a narrative format including the facts, presented in a nonjudgmental manner. This section must include a description of any partial or attempted resolutions.
  • Contractor’s stated position—As stated in the contractor’s potential claim records, other written materials, or oral communications. Quoted segments are most effective when supplemented by exhibits. Present this section in a nonjudgmental manner and do not elaborate on the contractor’s previously stated position.
  • Caltrans’ position—State the logical flow of information and the relevant contractual requirements that resulted in the determination of no merit. All supporting information must be referenced within this section and included in the exhibit section.
  • Summary—A concluding paragraph stating why contractually and factually there is no merit to the contractor’s dispute. The summary must be a strong absolute statement of Caltrans’ position requesting that the DRA or DRB find in Caltrans’ favor. Avoid expressing feelings or beliefs within this section.
  • Exhibits—A number of exhibits for illustrating and clarifying the contractual and technical requirements. Number and tab exhibits. When compiling the written position paper, provide complete information related to the dispute including those exhibits used within the oral presentation at the dispute meeting. Failure to provide certain exhibits will likely result in the DRA or DRB disallowing related items within the oral presentation. Distribute written position papers in accordance with the contract.

Submit a draft written position paper to the construction engineer and peers for review and comment in advance of the formal dispute meeting. These internal reviews provide an opportunity to improve the position paper and benefit Caltrans by informing management of dispute issues.

The oral presentation given during the dispute meeting is important to effectively put forward Caltrans’ position. Begin preparing for the presentation well in advance of the dispute meeting. Hold a mock presentation at least a week in advance of the dispute meeting to allow incorporation of comments from attendees. Attendees at the mock presentation should include the resident engineer, construction engineer, structure representative, bridge engineer, and construction field personnel. Other attendees may include technical experts, district construction claims engineer, construction manager, Division of Construction field coordinator, and others with dispute resolution board experience, depending on the size and complexity of the issue under consideration.

The objective of the mock presentation is to further examine the contractor’s position, to review the basis of Caltrans’ determination of no merit, and to rehearse Caltrans’ presentation including potential rebuttal statements. During the mock presentation, it is advisable that an experienced participant, not directly involved in the contract, provides constructive criticism of Caltrans’ position and the rebuttal of the contractor’s position.

Typically, either the resident engineer or structure representative gives the presentation to the DRA or DRB depending on the dispute issue. Other personnel associated with the project may provide additional evidence. Use of experts not associated with the contract is not allowed unless requested by the DRA or DRB. All parties must agree to the use of a technical specialist in advance.

The dispute meeting will follow the procedure outlined in the dispute resolution agreement and any operating procedures agreed to by all of the parties involved.

3-522C (3c)   Dispute Resolution Board Progress Meetings

In addition to the specific dispute meetings, there are mandatory initial and follow up progress meetings. The DRB progress meetings give members the opportunity to gain knowledge of the progress of work. Hold the first meeting at the start of the project. Each progress meeting must include a site visit allowing the DRB members to view construction operations, construction work completed, and areas where construction work must begin before the next meeting. A representative from both the contractor and Caltrans must attend all progress meetings. The minimum frequency of the progress meetings is stated in the Standard Specifications and in the DRB agreement; however, the frequency of meetings may be increased if the work is proceeding quickly. The agenda of a typical progress meeting is contained within the DRB agreement. At a minimum, the agenda should include a discussion of the following:

  • Status of change orders
  • Status of the work in terms of expended time and dollars
  • Summary of potential claims

Promptly prepare and circulate progress meeting minutes to the parties for revision and approval.

3-522C (4)  DRA or DRB Recommendations and Responses

Upon receiving a DRA’s or DRB’s recommendation regarding a dispute, provide a copy to the Division of Construction’s field coordinator and ADR engineer.

Discuss the recommendation with the construction engineer and begin preparing the Caltrans response once the DRA or DRB issues its recommendation to the parties.

Although the recommendation is nonbinding, the parties must respond to the DRA or DRB and the other party within the time specified so it is clear if the dispute is resolved or remains unresolved. Accept or reject a recommendation in accordance with the following:

  1. Acceptance of a recommendation that finds in favor of Caltrans is delegated to the district.
  2. Acceptance of a recommendation in the contractor’s favor is delegated to the district, however the district should discuss acceptance with the field coordinator if the issue is of statewide concern.
  3. Rejecting a recommendation in the contractor’s favor is delegated to the deputy district director of Construction. The deputy district director of Construction will review and discuss the reasoning for the proposed response and get concurrence from the Construction field coordinator before the resident engineer notifies the DRA or DRB and the contractor.

The DRA must complete Sections 1 through 5 of Form CEM-6207, “Dispute Resolution Advisor (DRA)—Dispute Meeting Report,” within 15 days of the dispute meeting and email it to the resident engineer and the ADR engineer at ADR.Engineer@dot.ca.gov. The resident engineer must complete Section 6 of this form and email to ADR.Engineer@dot.ca.gov. Section 7 is for DRA and resident engineer's comments.

The DRB chair must complete Sections 1 through 5 of Form CEM-6204, “Dispute Resolution Board (DRB)—Dispute Meeting Report,” within 35 days of the dispute meeting and email it to the resident engineer and the ADR engineer at ADR.Engineer@dot.ca.gov. The resident engineer must complete Section 6 of this form and email to ADR.Engineer@dot.ca.gov. Section 7 is for DRB chair and resident engineer's comments and to notify the Division of Construction’s ADR engineer of each party’s acceptance or rejection of the recommendation.

A request for clarification of the recommendation will only be considered if made within the time specified in the contract. Any request for clarification of a DRA or DRB recommendation needs to be discussed with the Division of Construction’s field coordinator before its submittal. Requests for clarification are warranted when the recommendation fails to thoroughly explain the rationale for the recommendation, when the DRA or DRB has not stated Caltrans’ position accurately, or when the contractual provisions have been disregarded.

A request for reconsideration of an issue may be made, and will only be considered, if new evidence concerning the dispute is provided and the request is made within the time specified. Reconsideration requests must be discussed with the Division of Construction’s field coordinator before submittal.

3-523        Final Inspection and Contract Acceptance

3-523A     General

As a project’s completion approaches, schedule appropriate reviews with maintenance, traffic, and safety personnel. Before the final inspection, give the contractor a written list of items needing attention.

To resolve any potential problems on interstate projects, request that a field engineer from the FHWA review the project before the day of final inspection. The objective is to prevent last-minute delays in contract acceptance.

In accordance with Section 5-1.46, “Final Inspection and Contract Acceptance,” of the Standard Specifications, the resident engineer must do a final inspection of the contract work.

Maintain a record of the final inspection in the resident engineer’s daily report. The record should include a statement similar to the following:

      “I made a final inspection of the project today and determined that all contract work has been completed.”

Or

      “[Name] made the final inspection today and agreed that all contract work has been completed.”

Time the final inspection so that the recommendation for contract acceptance will not be delayed pending the inspection.

3-523B     Contract Acceptance

On the day project work is completed in accordance with the requirements of the Standard Specifications, special provisions, plans, and approved change orders, notify the district Construction office recommending district acceptance of the contract. Refer to Section 5-1.46, “Final Inspection and Contract Acceptance,” of the Standard Specifications.

For recommendations of acceptance, use Form CEM-6301, “Contract Acceptance.” Once this form has been approved by the deputy district director on behalf of the director, provide a copy of the completed form to the contractor. The contract acceptance recommendation, approval and notification process should be completed within 2 business days. Follow the same procedure for accepting emergency contracts.

3-523C     Work for Other Agencies or Owners

As a courtesy, when any work performed under the contract is for other agencies or owners, ask for the concurrence of these entities in the acceptability of the work. Include the concurrence of others such as local agencies, other state agencies, utility companies, and school districts.

Also, ask for concurrence from another party or agency if it finances a state highway project or a portion of the project. The district must arrange a joint field inspection with the owner or agency. In writing and in advance, usually 30 days, notify the owner or agency when the facility will be ready for final inspection. Time the inspection so that concurrence for acceptance is available at the time of recommending the acceptance of the contract or relief from maintenance and protection to the director. However, do not withhold recommendations for acceptance or relief merely because an outside agency will not concur.

The letter notifying the owner or agency of readiness for inspection should include:

  • A reference to the cooperative agreement or other agreement.
  • A statement that the inspection is to determine whether work is in compliance with plans, the agreement, or both.
  • The date of the inspection.
  • A request that, when an inspection reveals no deficiencies, the agency’s authorized representative responsible for performing the inspection will confirm in writing that the agency agrees to accept the work.
  • A statement that failure by the agency to inspect or confirm acceptance in writing will be deemed acceptance of the work as constructed.

If the size or complexity of the work warrants such an action, the resident engineer and an agency representative should make a preliminary joint inspection to correct minor deficiencies before the final inspection described above.

Write a record of the preliminary and final joint field inspections. Note what actions were necessary to complete the work to the agency representative’s satisfaction. Record if the agency representative is satisfied with the completeness of the work but declines to concur in writing.

3-523D     Asset Delivery Report

For State Highway Operation and Protection Program (SHOPP) major projects, complete an asset delivery report using Form CEM-6305, “Asset Tracking at Contract Acceptance.” A copy of the form should be in the resident engineer pending file with prepopulated assets at contract award, but is also available from Asset Management's Asset Tracking Guidance and Form at Construction Completion (CCA) intranet page. 

This form tracks originally scoped project assets through project delivery. Changes in scoped assets are to be captured so they can be properly reported and managed. Retain a copy of the completed form in the project records and transmit copies to the project manager and the district’s asset manager.

3-524        Guarantee

3-524A     General

The contractor must perform corrective work because of a substantial defect as part of the guarantee if all of the following can be demonstrated:

  1. The substantial defect existed in the contractor’s work based on the specifications.
  2. The substantial defect existed when the contract work was accepted.
  3. A reasonable inspection by the resident engineer during construction would not have revealed the defect.

If the resident engineer cannot demonstrate the substantial defect is the responsibility of the contractor, the corrective work cannot be completed as part of the contract.

If a substantial defect is identified, the resident engineer will discuss the substantial defect with district management and the Division of Construction field coordinator. Send a letter to the contractor describing the substantial defect to be remedied. Any correspondence with the contractor regarding corrective work and the substantial defect must include the following language:

“Your refusal may result in a review of your responsibility to perform future work with Caltrans.”

The contractor can perform corrective work without obtaining an encroachment permit.

The contractor may dispute the need for the corrective work but is nevertheless contractually bound to perform the necessary repairs. If the proposed final estimate has not been issued, the contractor can file an exception in response to the proposed final estimate once it is issued. Otherwise, the contractor must file for arbitration pursuant to Section 10240.1 of the Public Contract Code. The contractor has 90 days from the completion of the corrective work or the end of the guarantee period, whichever is later, to file for arbitration.

The end of the guarantee period is 1 year from contract acceptance and will not be suspended or extended based on any corrective work being required or performed.

3-524B     Work Not Completed by Contractor

If the contractor refuses to perform the corrective work or if the corrective work requires an immediate response, Caltrans will perform the corrective work. The district may complete the corrective work with its own forces, day labor, by informal contract or by director’s order. Discuss this process with district management and the Division of Construction field coordinator.

The contractor is liable to the state for the costs to Caltrans resulting from the contractor’s failure to complete the corrective work. The resident engineer will need to maintain records on corrective work expenditures to expedite billing.

The resident engineer will send the detailed billing to the Division of Accounting, abatements section, with instructions to prepare the accounts receivable bill and to mail it to the contractor. If the contractor is not available, the bill should be mailed to the surety.

Back to top

Construction Manual Chapters

Construction Manual Home

Chapter 1 - Caltrans Construction Organization

Chapter 2 - Safety and Traffic

Chapter 3 - General Provisions

Chapter 4 - Construction Details

Chapter 5 - Contract Administration

Chapter 6 - Sampling and Testing

Chapter 7 - Environmental Stewardship

Chapter 8 - Employment Practices

Chapter 9 - Projects Sponsored by Others