Question 1

"Coping With COVID-19" video - Contract Consideration Series

Accepted Answer

(22m) Brian Weeks reviews options for owners and contractors during the COVID-19 pandemic, based on what is allowed under the MMCD standard language, and depending on the stage of the project: active tender, pre-award, or after construction has started.

Watch this and other Contract Consideration videos on MMCD Association's YouTube Channel.

Question 2

What are the MMCD spec recommendations for aggregate used for bedding residential waterlines in boulevards and the depth requrements for Saanich and Victoria?

Accepted Answer

QUESTION

Can you please tell me your spec recommendations are for the aggregate to be used for bedding residential waterlines in boulevards and the depth requirements for Saanich and Victoria?

COMMENT

Section 33 11 01 Item 2.6. Granular Pipe Bedding and Surround Material says

Question 3

Can a claim be made by a Contractor for lost overhead if the Client cuts out part of the work so that the final value of the contract is 25% less than the original lump sum contract?

Accepted Answer

QUESTION

If a lump sum contract valued at say $100,000 is signed with a contractor and the client cuts out part of the work so that the final value of the contract turns out to be $75,000, could a claim be made for lost overhead and profit that would conform to MMCD?

COMMENT

GC 9.4.3 covers the Contractors profit and overhead when quantities fail to meet the Threshold Variance

Question 4

Can the CA rightfully dispute rates after they have been agreed to in writing?

Accepted Answer

QUESTION

Can the CA rightfully dispute rates after they have been agreed to in writing? Additional information:

Is the CA right to not pay for items mentioned above (training, pension, daily travel, and other benefits paid to employees) even though the contract states "including all amounts paid for labour.... and all employee benefits"?

COMMENT

10.1.1 Payment for Force Account Work shall be calculated as follows:

labour at the actual cost to the Contractor, including all amounts paid for labour and all related taxes, assessments payable as required by any statutory scheme such as Workers’ Compensation, unemployment insurance, holiday pay, insurance, and all employee benefits. A markup of 3% on the foregoing shall be allowed for all Small Tools. A markup of 10% on the total of the foregoing shall be allowed for overhead. A further markup of 10% on the total of the foregoing including the markup for overhead shall be allowed for profit.

10.3.1 The Contractor shall keep an accurate, complete and up-to-date record, in a form satisfactory to the Contract Administrator, showing on a shift-by-shift basis all labour, equipment, materials and subcontractor costs of all Work to be paid by Force Account. The Contractor shall submit such Force Account reports to the Contract Administrator daily, before the end of the next Day for certification by the Contract Administrator.

GC 16.3.1 (2) outlines the Contractor’s rights when the Owner fails to pay the Contractor for amounts certified by the CA.

MMCD “Contract Considerations” discusses Force Account work at https://www.mmcd.net/resources/video-resources/

Question 5

Dispute between CA and Contractor regarding claim for Concealed or Unknown Condition

Accepted Answer

QUESTION

As part of our scope on a project, we were required to install an augured casing pipe beneath a creek. During installation an unknown object was encountered so the work could not be completed as designed. Efforts were made to retrieve the auguring tools without success. The CA was notified and a claim was submitted for review, however the CA rejected the claim in its entirety. The CA's justification is as follows:

"It is my initial decision that the difficulty encountered by the Contractor in performing the creek undercrossing by the construction means was reasonably inferable from the examination of the Place of the Work. This is not a Concealed or Unknown Condition as defined by the Contract and so is not compensable under the terms of the Contract."

Additional information: No geotechnical report was provided for this project.

Our question is whether or not a buried obstruction that was encountered at the place of work, that has prevented our work from being completed as designed, which no information was provided to indicate such obstructions, should be considered a concealed or unknown condition.

COMMENT

11.1 A “Concealed or Unknown Condition” is a surface or subsurface physical condition encountered by the Contractor in the performance of the Work that:

According to GC 3.6.1, the Contract Administrator is the interpreter of the Contract documents in the first instance (not MMCD). MMCD cannot offer legal advice or an opinion on the merits of a dispute, except to point toward clauses in the GCs which might be helpful in approaching the dispute.

The contract requires that both parties follow the process outlined in GC 17. Section 3.5.4 of Volume I the “User Guide” Section 3 Page 6 of 54 addresses the special case where the design may be changed to reflect site conditions “differs materially from conditions disclosed in the contract documents”.

Question 6

The CA has not responded to my request for a significant amount of time; is this considered Breach of Contract?

Accepted Answer

QUESTION

I’ve been trying to resolve a dispute regarding liquidated damages. The Contract Administrator has not responded to my request for a significant amount of time; is this considered Breach of Contract?

COMMENT

Check section 17 of the GCs for the dispute resolution process. There is a video (Contract Considerations) that may clarify the process, as well as a flow chart.

Question 7

Do the finished tolerances in Section 32 12 16 Hot-Mix Asphalt Concrete Paving apply to speed humps / speed bumps, or only to flat road surface?

Accepted Answer

QUESTION

Regarding clauses in SECTION 32 12 16 HOT-MIX ASPHALT CONCRETE PAVING, I want to verify if the 6mm 3.10 Finished Tolerances apply to speed humps / speed bumps, or only flat road surface?

COMMENT

As long as the Contractor is provided with a profile of the speed bump, the tolerance shall apply.

Question 8

Is there an MMCD Unit Price contract template that can be used between General Contractors and Subcontractors?

Accepted Answer

QUESTION

Are MMCD contracts only for contracts between Owners and General Contractors? I'm hoping to find a Unit Price contract that can be used between General Contractors and Subcontractors.

COMMENT

There are no MMCD contract templates for subcontractors.

Question 9

What severity or range/size of a crack determines that the section of curb or sidewalk is to be replaced?

Accepted Answer

QUESTION

I'm writing to inquire about cracking that may occur in concrete curbs and sidewalks (MMCD section 03 30 20). Specifically a spec regarding the severity of a given crack. In section 03 30 20, 3.17.1 states that cracked gutters or sidewalks are to be replaced.

Does this mean any and all cracks that are found? For example a hair line crack is to be replaced? Or at what severity or range of the crack determines that the section of curb or sidewalk is to be replaced?

COMMENT

Here is a typical note for our Developers, Contractors, and Engineers in the deficiency list for a project.

“Complete all concrete repairs. Sidewalks and driveway letdowns shall be removed and replaced if any crack or defect is present. Curb and gutter sections with more than one crack shall be replaced from joint to joint, no half section repairs are permitted. For sections of curb and gutter with only one crack, crack injection filling is permitted by Tykon, Bondtech or Confill.

"Any separation that is wider than the thickness of a dime is considered as a crack. When there are 2 or more cracks between expansion joints, the section of curb shall be removed.”

Question 10

What percentage of overhead and profit is acceptable?

Accepted Answer

QUESTION

If a deleted item is a lump sum unit is the lost overhead and profit still applied to only 85% or does it need to be applied to 100% on lump sum items?

COMMENT

The CA is the interpreter of the contract in the first instance. (GC3.6.1)

The User Guide (Volume 1) Section 4 page 22 of 43 article 5.4.3 discusses contractor costs, saying GC10.1.1 gives general guidance, but that each contractor may have different “payroll burdens”. This User Guide discussion is worth looking at in detail, as well as GC10.1.1. (The User Guide is available as an electronic document from MMCD)

GC1.76 defines the Variance Threshold Percentage and references ‘unit price items”. This suggests that lump sum items are exempt from calculations using a variance threshold. Again, the CA should provide a ruling on this aspect of the contract. GC7.0 Changes contains the procedure for a Change Order. Valuation of the Change is set out in GC9.2.1.

Failing agreement, Force Account is a default calculation.