Question 1

What can I do if the bidder adjusts the Schedule of Quantities in the tender?

Accepted Answer

QUESTION

I just opened a tender and [in] one of the submissions [the bidder] redeveloped their own schedule of quantities and submitted it. The regenerated Schedule of Quantities has no titles or identifiers on it at all, except for it was included in the sealed envelope. Some of the descriptions have been abbreviated. What should I do?

COMMENT

MMCD cannot offer legal advice. However, there are resources to help in interpreting MMCD documents and processes.

Para 7.2 Page 7 of 13 Preparation and Award Checklist talks about the appendices, including the Schedule of Quantities and Prices.

In addition https://www.mmcd.net/resources/video-resources/ contains the Contract Considerations video series. "The Importance of the Agreement" and other videos may give some background to the issues.

Question 2

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 3

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 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

Is there recourse for the Contractor when an Owner Caused Delay affects Substantial Completion?

Accepted Answer

QUESTION

On a regular MMCD utility rehabilitation contract between contractor and municipality, the project is near completion, but not within the strict definition of Substantial Performance. The Owner has told the contractor to not go ahead with the remaining work, as it is at a separate site and the site is not ready. There is no schedule for the site to be made ready. The contractor wants Substantial Performance granted on the work completed to date, as it is at a separate site and is now being used by the Owner. They want the lien holdback clock to start so they can get their 10% back on the work completed. Is there any recourse for the contractor?

COMMENT

"The Contractor wants substantial completion on the work completed to date as it is a separate site and is now being used by the owner. They want the lien holdback clock to start so they can get their 10% back on the work completed."

Reference GC 10.3.2 Delays which are the Owners’ responsibility Section 3 page 45 05 52 User Guide

The User Guide (10.3.2.1, 10.3.2.2) suggests that Owner caused delays (per GC13.1) entitle the Contractor to reimbursement for costs and lost time. In this case, the CA must act impartially and issue a Change Order for the proven impact, even if the CA was the cause of the delay.

The Contract Considerations video “Partial vs Staged Substantial Completion" discusses methods of reducing the work remaining under the contract and processing a request for substantial performance. A new contract for the balance of the work may be required (see video).

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

Is there any way under MMCD that the lien clock can start ticking for work that has been completed and is actUally already in use?

Accepted Answer

QUESTION

My understanding is that it's not allowable to release part of the lien holdback during the life of a project. In my particular situation, a project comprised of one major water/sewer scope and another major electrical scope is dragging on. The project itself is 18 months along and the water/sewer work has been done for several months now. What remains is some connection work in the electrical scope (substation replacement, requiring multiple shutdowns, reconnections etc.) that is dependent on BC Hydro reviewing as-built documentations, scheduling time for a shutdown, etc. That could be another 3 to 5 months from today.

Clearly the contractor is getting anxious about the way he is essentially financing the project with the 10% holdback. Is there any way under the MMCD that the lien clock can be set to ticking for the work that has been completed and is actually already in use?

COMMENT

The Contract Considerations Video should provide the answer (which is generally “No”). This is due to the Builders Lien Act, not our document. The video suggests a work around. Check out “Contract Considerations" video, “Partial vs Staged Substantial Performance".

Question 10

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.”