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ZZZZZZZZ -DON’T BE ASLEEP AT THE SWITCH:

Documentation Under the 2013 NMDOT Specifications©

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COMMON MISPERCEPTIONS

• So There Are New NMDOT Specifications – So What ? MISPERCEPTION – THAT WHAT WORKED

UNDER THE 2007 SPECIFICATIONS WILL WORK UNDER THE 2013 SPECIFICATIONS.

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COMMON MISPERCEPTIONS

• I Know the DOT, the DEs, the PMs. Things Will Go On Like Always. There’ll Be Some Changes But We’ll Deal With Them.

MISPERCEPTION – THAT YOUR BUDDIES AT THE NMDOT WILL GET YOU THROUGH.

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COMMON MISPERCEPTIONS

• There Can’t Be That Many Changes and They Probably Don’t Affect Me.

MISPERCEPTI0N – THAT THE CHANGES TO THE NMDOT SPECIFICATIONS ARE MINIMAL AND DON’T AFFECT MOST CONTRACTORS.

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REALITY

• THERE ARE NEW REQUIREMENTS FOR DOCUMENTATION UNDER THE 2013 SPECIFICATIONS.

• THE NMDOT IS TRAINING ITS PERSONNEL TO STRICTLY APPLY THE 2013 SPECIFICATIONS.

• THE CHANGES IN DOCUMENTATION REQUIREMENTS AFFECT ALL NMDOT CONTRACTORS.

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NMDOT’S MANTRA

• THE NMDOT’S MANTRA: “THIS IS A NEW DAY AT THE NMDOT.” The NMDOT Has Trained Its Personnel and Is Ready To Go!

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A CONTRACTOR WHO DOES NOT WANT TO BE DISADVANTAGED BY THE 2013 SPECIFICATIONS: WILL DOCUMENT THE JOB WITH THE 2013 SPECIFICATIONS IN MIND.

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DOCUMENTATION IN GENERAL

PAPER IS POWER

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TYPES OF DOCUMENTATION

1. PRE-BID, BID DEVELOPMENT INFORMATION – PRE-BID DUE DILIGENCE

2. CONTRACT DOCUMENTS – PRE-BID DUE DILIGENCE

3. PROJECT CORRESPONDENCE

4. PROJECT LOGS, REPORTS, DIARIES

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TYPES OF DOCUMENTATION(CON’T)

5. COST DATA

6. SCHEDULES

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PRE-BID, BID DEVELOPMENT DOCUMENTATION

You should always keep a legible copy of: - The Bid Invitation - The Instructions to Bidders - All Pre-Bid and Bid Development Information - Subcontractor and Supplier Quotations and

Reports

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PRE-BID, BID DEVELOPMENT DOCUMENTATION (CON’T)

You should always keep a legible copy of: - Your Original Bid Estimate - Pre-Bid Schedules (including Owner’s, Contractor’s and Subs’ Pre-Bid Schedules) - Any Other Information to Establish Original Conditions

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WHY?

For a very simple reason – THE 2013 NMDOT SPECIFICATIONS REQUIRE

“PRE-BID DUE DILIGENCE” FOR: - CLAIMS OVER $100,000 (105.20.1.1j) - DELAY CLAIMS FOR DESIGN ERRORS (109.11.2)

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“PRE-BID DUE DILIGENCE”

Definition: “The Bidder’s exercise of due diligence before submittal of a Bid which includes the careful, independent examination of the site of the proposed Work, including Materials pits and haul Roads, the Bid package, all Contract documents including

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“Pre-Bid Due Diligence” (con’t)

Standard Specifications, Special Provisions , Supplemental Specifications, and standard and serial drawings and boring logs which are representative of the condition at the precise location where each boring was made but conditions may vary between boring locations.”

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DOCUMENTING PRE-BID DUE DILIGENCE

• MUST BE DOCUMENTED BEFORE SUBMITTING YOUR BID.

• IF YOU WAIT UNTIL YOU HAVE A DISPUTE, YOU ARE ALREADY BEHIND THE GAME.

• IF YOU HAVE YOUR DOCUMENTATION IN PLACE, YOU CAN ANSWER A CHARGE OF A LACK OF PRE-BID DUE DILIGENCE PROMPTLY.

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HOW DO YOU DOCUMENT “PRE-BID DUE DILIGENCE?”

• All of the “pre-bid due diligence” documents should be in one place so they are easily accessible.

• Your employees should be trained to take notes. • These notes should include the name of the

note-taker, the date of the notes, the subject of the notes, what exactly the contractor did (e.g., examination of the site including Material

pits and haul Roads ).

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• These notes should include your comments (e.g., no visible obstructions on site, geological conditions).

• These notes should include every activity by the contractor including the examination of the bid package and the contract documents (mtgs., emails, texts, memos).

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WHY GO TO THIS TROUBLE?

• Because Section 109.11.2 in the 2013 Specifications says you cannot collect for design errors unless they could not have been discovered through pre-bid due diligence.

• Because Section 105.20.1 in the 2013 Specifications says that if a claim exceeds $100,000, the contractor must make his

Bid Preparation documents available including “memoranda, narratives and all other information used by the Contractor to arrive at all of the prices contained in the Bid.”

-- and— The failure to provide these documents is a

waiver or abandonment of the claim.

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• Because Section 107.28 says that a contractor must maintain his records, including bid documents, for five years or waive any claim based on the records.

IN OTHER WORDS, PRE-BID AND BID DEVELOPMENT INFORMATION IS CRITICAL TO A CLAIM.

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CONTRACT DOCUMENTS

• CONTRACT DOCUMENT EXAMINATION IS ALSO CRITICAL TO A CLAIM.

• REMEMBER: “Pre-Bid Due Diligence” includes the “careful, independent examination” of “all Contract documents . . . .”

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CONTRACT DOCUMENTS

• “Pre-Bid Due Diligence” includes the review of the following contract documents:

1. Standard Specifications. 2. Special Provisions. 3. Supplemental Specifications. 4. Standard and Serial Drawings. 5. Boring Logs.

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HOW DO YOU DOCUMENT REVIEW OF THE CONTRACT DOCUMENTS?

• Make hand-written notes on the Special Provisions, Supplemental Specifications, standard and serial drawings, and boring logs.

• Be sure your notes are professional.• Be careful about putting questions in your notes because you will have a duty to follow up.

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DOCUMENTING CONTRACT REVIEW (CON’T)

• Hold a meeting with your field personnel and go over the 2013 Specifications – take general notes.

• Add these general notes to your “Pre-Bid” file.• Once the job is over, add your Special

Provisions, Supplemental Specifications, Standard and Serial Drawings and Boring Logs notes to your “Pre-Bid” file.

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PRE-BID DUE DILIGENCE

REMEMBER:1. THE NMDOT HAS TRAINED ITS PERSONNEL

TO ENFORCE “PRE-BID DUE DILIGENCE” FOR ANY CLAIM.

2. YOU MUST BE ABLE TO SHOW “PRE-BID DUE DILIGENCE” IN YOUR: (1) PRE-BID, BID DEVELOPMENT; AND (2) CONTRACT DOCUMENT REVIEW.

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OTHER DOCUMENTATION REQUIRED BY THE 2013 SPECIFICATIONS

WRITTEN COMMUNICATIONS You must also document a claim by submitting

“COPIES OF ALL WRITTEN COMMUNICATIONS INCLUDING CORRESPONDENCE AND EMAILS.” (105.20.1.1e)

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TYPES OF WRITTEN COMMUNICATIONS

• Letters• Emails, Texts• Facebook• Telephone Logs• Project Logs• Project Reports• Project Diaries

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TIPS REGARDING CORRESPONDENCE

1. Write letters to state your position – do not let something go unanswered but do not get in a letter-writing war, particularly if it interferes with your performance.

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TIPS REGARDING CORRESPONDENCE (CON’T)

2. Keep in mind that a letter is rarely meant for the person it is addressed to. Look down the road – what would an arbitrator or Judge think if they read the letter?

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EMAILS, TEXT MESSAGES

1. Emails and text messages are NOT PRIVATE. 2. Emails and text messages are a “written

communication.” DO NOT put anything in an email or text

message that you would not like to have read in court (by you) !!!!!!!!!!!!!!!!!!!

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FACEBOOK

Your Facebook page is NOT private, and if it includes anything to do with the job, it is a “written communication.” Again:

DO NOT put anything in your Facebook page that you would not like to have read in court (by you) !!!!!!!!!!!!!

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TELEPHONE LOGS

Telephone Logs – Be aware when you make notes of a phone call because this is project correspondence, too. Ask yourself what someone would think if they read your notes later.

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PROJECT LOGS

1. RFI LOG – Contains columns for: - Date RFI submitted; - Brief description of RFI; - Date RFI responded to; and - Number of days for response.

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PROJECT LOGS (CON’T)

2. SUBMITTAL LOG – Contains columns for: - Date material submitted; - Brief description of submittal; - Date submittal approved or date submittal returned; - Date of re-submittal and date of response; - Number of days taken by NMDOT to respond.

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PROJECT LOGS (CON’T)

3. CHANGE ORDER LOG – Contains columns for :

- Date of Change Order Request; - Brief Description of CO Request; - Date CO executed or COR denied; - Brief Description of CO, if executed.

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PROJECT REPORTS

Depending upon the contractor, project reports can take any form but generally update progress on the job and usually include a write up on the scope of work, the work completed, the work paid for, the progress on the latest schedule, and any problems that have arisen on the job.

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TIP ON PROJECT REPORTS

As with all communications: Ask yourself how what you have written would look to a judge or arbitrator and whether you would be comfortable reading it to other people.

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PROJECT DIARIES

A PROJECT DIARY IS ONE OF THE MOST VALUABLE TOOLS IN SUPPORTING A CONTRACTOR BECAUSE IT IS A “CONTEMPORANEOUSLY RECORDED” RECORD. It is “contemporaneous” because it was recorded at the time things were happening.

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TYPES OF PROJECT DIARIES

- Handwritten Diaries – written in the field, are usually torn, stained, dog-eared.

- Electronic Diaries – entered on the com-puter, usually at the end of the day.

- Combination – notes made in the field used to make computer entries at the end of the day.

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TIPS ON PROJECT DIARIES

• Use the method that you think most easily shows that the diary is a “contemporaneous” record.

• Be precise in your diary entries.• Name names when possible – people leave jobs who have knowledge about events.

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TIPS ON PROJECT DIARIES (CON’T)• Be sure that your diaries are legible.• If you use an abbreviation that is not common (e.g., abbreviating someone’s name) be sure to list the full word at some place in your diary.• Do not be afraid to list comments that favorable to you and damaging to the NMDOT, as long as they are truthful.

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OTHER TYPES OF WRITTEN COMMUNICATIONS

• COST DATA – Includes Cost Reports with weekly break-down of labor, material, equipment costs and back-up.

• SCHEDULES – Includes all submitted schedules and any NMDOT written comments.

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FAILURE TO SUBMIT “ALL REQUIRED SUPPORTING DOCUMENTATION”

THE 2013 NMDOT SPECIFICATIONS STATE THAT “The failure of the Contractor to provide the Project Manager all required supporting documentation and information shall constitute a waiver or abandonment of the Claim and a failure to exhaust administrative remedies.

X

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YOUR GOAL:

• TO SUBMIT “ALL PROJECT COMMUNICATIONS” INCLUDING LETTERS, EMAILS, TEXT MESSAGES, FACEBOOK ENTRIES, TELEPHONE LOGS, PROJECT LOGS, PROJECT REPORTS, COST DATA, AND SCHEDULES .

• TO SUBMIT “PROJECT COMMUNICATIONS” THAT SUPPORT YOUR CLAIM.

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REMEMBER:

THE MINDSET OF THE NMDOT IS DIFFERENT WITH ITS 2013 SPECIFICATIONS.

1. THE NMDOT USED TO MEET WITH ITS CONTRACTORS, FORM JOINT COMMITTEES, AND ASK FOR CONTRACTOR INPUT WHEN IT UPDATED ITS SPECIFICATIONS.

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REMEMBER:

2. This time the NMDOT drafted its new Specifications with no input from its X contractors.

3. ACNM was forced to fight long and hard during the public comment process to be heard. X

4. Only some comments by ACNM were incorporated, and many of ACNM’s suggestions about important provisions were ignored. X

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REMEMBER:

5. THE NMDOT HAS TRAINED ITS PERSONNEL

IN THE 2013 SPECIFICATIONS. 6. THE NMDOT’S MANTRA IS : “ITS A NEW DAY AT THE DOT.” ZZZZZZZZZZZZZZZZZZZZ- DON’T BE ASLEEP AT THE SWITCH!