The New York Department of Transportation utilizes its administrative document, the Standard Specifications, to provide a compilation of standard requirements for construction contracts. These specifications are written to the contractor. They define the contractor’s responsibility in meeting each specification, enumerate the Department’s expectations and how it is going to measure and pay, and explain what the contractor is expected to provide1.
Recently, the Department of Transportation released an Engineering Instruction, entitled Revisions to Standard Specifications: Section 100-Phase 7, which provides revisions and changes to Section 100 of the Standard Specifications, and consolidates all existing changes. These revisions apply to contracts submitted for bidding after January 9th, 2014.
The adoption of the revisions to section 100 warrant the review of the Standard Specifications, as many of these revisions have altered the general terms for bidding construction contracts and contracting with the Department of Transportation. Section 104-01, Scope of Work, for example, has had language added to it which requires a contractor to commence its work within 14 days of being awarded a contract by the Office of the State Comptroller, unless written consent of the Department of Transportation is given to begin at a later date.
The addition of vendor responsibility, section 105-05, is another example of a new addition to the document. This section establishes that a contractor shall at all times during the contract term remain responsible, and that if requested by the Commissioner of Transportation, or his or her designee, the contractor agrees to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity. The section also reserves the right for the Commissioner to suspend any and all activities of a contractor at any time when he or she discovers information that calls into question the responsibility of the contractor, and establishes the proper course of action if this were to occur (including written notice, termination, etc.).
More examples of additions to the Standard Specifications include the addition of Marine Protection & Indemnity and Pollution Liability Insurance to the insurance requirements of section 107-6, the establishment of what costs are recoverable for a contractor under acceleration compensation, and when a contractor will be reimbursed for additional costs associated with acceleration directed by the Department of Transportation in writing.
Failure to account for changes to the Standard Specifications in new bids will subject a contractor to potential liability and/or contract termination. The changes highlighted above, along with others, have altered various aspects of how contracts with the Department of Transportation are handled, including deadlines, timeframes, and necessary insurance provisions/required clauses, among other things. The changes cannot be ignored, as they have a large impact on contractors bidding for, and working under contracts with the Department.2
1 New York Department of Transportation, Standard Specifications (U.S. Customary Units) 3 (Jan. 9 2014).
2 Anthony Ruggeri, a third year law student and law clerk with the firm, assisted with the preparation of this article.