IMPORTANT CHANGES TO 2010 WSDOT STANDARD SPECIFICATIONS

The 2010 WSDOT Standard Specifications for Road, Bridge and Municipal Construction contain numerous changes from the 2008 version. WSDOT’s 2010 changes focus on enhanced safety and environmental protection and attempt to address issues associated with the presently high unemployment rate in the construction industry. Before entering into either a prime or subcontract that utilizes the WSDOT Specifications, contractors should be aware, at a minimum, of some of the most significant changes to the Standard Specifications. This basic familiarity will help contractors avoid costly mistakes and headaches, and allow contractors to earn the profits they deserve.

1. 1-04.5 Procedure and Protest by the Contractor

In the event the contractor disagrees with any order from the Project Engineer, the contractor must follow the protest procedure in section 1-04.5. In 2010, WSDOT extended the amount of time a contractor has to submit a supplemental written statement and documents to support its initial protest. Under section 1-04.5(2) contractors must submit such supplemental supporting information within 14 calendar days of the initial written protest. The 2008 version required the same submission within 7 calendar days.

This is a rare example of WSDOT cutting contractors some additional slack. Changes to the Specifications typically place additional compliance burdens on the contractor. While 14 calendar days is not a lot of time to provide backup for a protest, it is at least better than 7 calendar days. Despite this additional allowance, contractors should still move as quickly as possible to provide written substantiation of a protest of the Project Engineer’s order.

2. 1-09.9 Payments

WSDOT included additional language clarifying the procedure for and entitlement to payment for lump sum bid work. Prior to the preconstruction meeting, contractors must submit a breakdown of their lump sum price in sufficient detail for the Project Engineer to determine the value of the Work performed on a monthly basis. The 2008 version did not require such a breakdown.

With regard to progress payments for lump sum bid items, payment will be a percentage of the price in the bid proposal. This percentage will be based on the Project Engineer’s determination of the amount of Work performed, with consideration given to, but not exclusively based on the Contractor’s lump sum breakdown.

Thus, at the time of bidding the project, contractors should give careful consideration to its lump sum bid and make sure that it can break-down the lump sum into reasonable and logical component parts. This will facilitate more complete compensation for lump sum work performed throughout the project. That being said, the Project Engineer retains a significant amount of discretion in issuing partial payments for lump sum work and may consider other unnamed factors in issuing payment.

3. 1-07.15(1) Spill Prevention, Control, and Countermeasures Plan

The 2010 Standard Specifications modify both the substantive and procedural requirements for the contractor’s spill prevention, control and countermeasures plan. Procedurally, the contractor must submit the plan to the Project Engineer no later than the date of the preconstruction conference. Under the 2008 version, there was not a deadline for submission of the plan, but the contractor was not allowed to commence construction activities until WSDOT had accepted the plan. Further, the 2010 version requires the contractor to update the plan every year, whereas the prior version only required updates as needed.

With regard to the new substantive requirements for the plan, the 2010 Specifications require more specific information to be included in the plan and that such information be detailed in a specific order. The plan must address the following elements in order: (1) responsible personnel; (2) spill reporting; (3) project and site information; (4) potential spill sources; (5) pre-existing contamination; (6) spill prevention and response training; (7) spill prevention; (8) spill response; (9) project site map; (10) spill report forms. While these are not entirely new categories of information for the plan, the 2010 version requires a contractor to go into greater detail about how it will prevent, control and respond to potentially dangerous spills on the project. Contractors should review the new specification in detail to ensure its plan addresses the new detailed requirements.

Finally, both the timing and amount of compensation due to the contractor for creating and implementing the plan has been modified. The 2010 version provides that the contractor shall be paid 50% of the lump sum contract price for the plan when WSDOT accepts the plan and the remaining 50% when the materials and equipment called for in the plan are mobilized to the project. The 2008 version did not address the timing of payment. The 2010 version also specifically allows recovery of the costs incurred in updating the plan, which was not previously addressed by the 2008 Specifications.

Thus, to enhance cash flow on the project, contractors should submit a carefully crafted plan as soon as possible after execution of the contract and expedite the mobilization of the materials and equipment required by the plan.

4. 1-07.8 High Visibility Apparel

The 2010 Specifications make several significant alterations to the high visibility apparel requirements for all construction workers on-site. The 2010 version of 1-07.8 specifically requires all personnel at the work site to wear high visibility apparel that complies with ANSI/ISEA 107-2004 Class 2 or 3 standard, regardless of the time of day that the work is being performed.

There are heightened requirements for traffic control personnel. During the daytime, traffic control personnel must wear an ANSI/ISEA 107-2004 Class 2 or 3 vest or jacket, and hardhat meeting the high visibility headwear requirements of WAC 296-155-305. During hours of darkness and/or low visibility, traffic control personnel must also wear a high-visibility lower garment meeting ANSI/ISEA 107-2004 Class E.

In comparison to the 2008 Standard Specifications, the high visibility apparel requirements are now tied to the ANSI/ISEA national standard that is more specific and onerous to comply with. For example, the 2008 version allowed non-traffic control personnel to wear orange and/or yellow clothing in lieu of reflective vests. This is not allowed under the 2010 Standard Specifications. Contractors should obtain a copy of ANSI/ISEA 107-2004 standards, which are not available on-line, and review it to ensure its high visibility apparel policy is in compliance with the new specifications.

5. 1-08.3(2)A Type A Progress Schedule

The 2010 Standard Specifications modify the deadline for submission of the Type A progress schedule. The progress schedule must be submitted within 10 days of contract execution or at some other mutually agreed upon submittal time. The 2008 version required submission of the progress schedule on the first working day of the contract. Further, the 2010 version requires all schedules, regardless of type or format, to indentify the critical path.

This provision forces contractors to carefully schedule the project and identify the critical path very early on in the process. Contractors must now allocate time for detailed scheduling nearly immediately after executing the contract.

6. 1-10.3(1)A Flaggers and Spotters

The 2010 version adds a paragraph regarding what constitutes proper flagger station illumination at night. Specifically, the Contractor must provide portable lighting equipment capable of sufficiently illuminating a flagger and their station without creating glare for oncoming motorists, yet will meet the mobility requirements of the operation. The lighting stations must be located on the same side of the roadway as the flagger and aimed either parallel or perpendicular to the traveled lanes to minimize glare. Further, the lighting devices must be located 5 to 10-feet from the edge of the travel lane with a mounting height of 15 to 25-feet above the ground. The flagger must be visible and discernable as a flagger from a distance of 1,000-feet.

The 2008 version did not include any specific requirements but only the general requirement of illumination that did not cause a glare for drivers. While some contractors may already employ a flagger illumination program that complies with the new requirements, contractors should diligently set up all flagger illumination stations so as to comply with the very detailed requirements of the 2010 Specifications. This is yet another provision that highlights WSDOT’s focus on safety issues in the 2010 revisions.

7. 1-07.15 Temporary Water Pollution/Erosion Control

In line with recent state and county efforts to limit the entrance of phosphates into the rivers, lakes, and streams of the state, the 2010 Specifications include two additional paragraphs that require contractors to limit, monitor, and control the pH levels of any water discharged into the waters of the state as a result of the project.

Specifically, any water that has come in contact with concrete rubble, concrete pours, or cement treated soils must be maintained to pH 8.5 or less before it is allowed to enter waters of the State. If the pH levels exceed 8.5, the Contractor must immediately discontinue work and initiate treatment to lower the pH. The contractor may resume the work, with treatment, once the pH of the stormwater is 8.5 or less or it can be demonstrated that the runoff will not reach surface waters.

In addition to implementing a treatment plan itself, a contractor may obtain the requisite permits for discharging the high pH water into either (1) a sanitary sewer system; or (2) an approved waste site. The contractor must provide copies of the applicable permit to the Project Engineer prior to beginning the work that will generate the high pH water.

In light of these new detailed requirements, contractors must prospectively analyze the extent to which high pH water will be generated on the project and come up with a plan as to how to limit, monitor and control such wastewater.

8. 1-08.6 Suspension of Work

The 2010 Specification includes an additional ground upon which the Project Engineer may suspend all or part of the work – where suspension is in the public interest. The 2008 version did not contain such broad discretion for the Project Engineer in deciding whether to suspend the work.

This change is likely the product of municipal and state budget cuts, and the need for additional flexibility in how tax dollars are spent. What is or is not in the public interest is vague, granting the Project Engineer significant discretion in making such a decision.

Contractors should be aware of the heightened possibility for suspension of work in the name of the public interest on upcoming projects. Most importantly, contractors should react quickly to such a suspension of work and submit a claim in accordance with 1-04.5 and 1-09.11 to compensate for the delays and impacts resulting from the suspension.

9. 1-05.12 Final Acceptance

In light of the presently high rate of unemployment in the construction industry, the 2010 Specifications address the contractor’s responsibility for unemployment compensation after completion of the project. Specifically, neither completion nor final acceptance of the project relieves the Contractor of the responsibility to indemnify, defend, and protect the Contracting Agency against any claim or loss resulting from the failure of the Contractor (or the subcontractors or lower tier subcontractors) to make any payments required for unemployment compensation under Title 50 RCW. The 2008 version did not address a contractor’s responsibility for unemployment compensation.

This provision is quite broad and requires the contractor to ensure that its subcontractors and even lower tier subcontractors make the requisite unemployment compensation contributions. Contractors should discuss this requirement with its subcontractors and develop a method for reviewing payrolls to ensure compliance. Further, contractors should consult with an employment lawyer to for further information on Washington’s unemployment compensation contribution requirements for employers.

10. 1-04.4(1) Minor Changes

The 2010 Specifications increase the amount of a contract change classified as a “minor change.” The 2008 version capped minor changes at $5,000. The new version raises the amount three-fold to $15,000. This change will allow more prevalent use of the less formal minor changes procedure and allow the Project Engineer to forgo jumping through the procedural hoops outlined in section 1-04.4 Changes.

Contractors should remember that even for minor changes orders, they must submit a written protest under section 1-04.5 and 1.09.11 in the event the minor change will cause delays and impacts.