General Conditions
ARTICLE 11:CHANGES IN THE WORK 11.1 In General.
11.1.1. The Contract Sum constitutes the total compensation (subject to authorized adjustments) payable to the Contractor for performing the Work. All duties, responsibilities and obligations assigned to or undertaken by the Contractor shall be at the Contractor's expense without any change in the Contract Sum.
11.1.2. Without invalidating the Contract and without notice to any surety, the City may, at any time or from time to time, order additions to, deletions from, or revisions in the Work. Such additions, deletions, or revisions will be authorized by a Change Order, a Modification or a
Construction Change Directive. Upon receipt of any such document, the Contractor shall promptly proceed with the Work involved that will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided).
11.1.3. The Contractor shall not be entitled to an increase in the Contract Sum or an extension of the Contract Time with respect to any Work performed that is not required by the Contract Documents as amended, modified, or supplemented, except as otherwise provided herein.
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11.2.1. (Reference: M.G.L. c. 30, §39I;). The Contractor shall perform all the Work required by this Contract in conformity with the Plans and Specifications contained herein. No willful and substantial deviation from said Plans and Specifications shall be made unless
authorized in writing by the City and the Design Professional in charge of the Work who is duly authorized by the City to approve such deviations. In order to avoid delays in the prosecution of the Work required by such Contract, such deviation from the Plans or Specifications may be authorized by a written order of the City or the Design Professional so authorized to approve such deviation. Within thirty (30) days thereafter, such written order shall be confirmed by a certificate of the City stating: (1) If such deviation involves any substitution or elimination of materials, fixtures or equipment, the reasons why such materials, fixtures, or equipment were included in the first instance and the reasons for substitution or elimination, and, if the deviation is of any other nature, the reasons for such deviation, giving justification therefore; (2) that the specified deviation does not materially injure the Project as a whole; (3) that either the work substituted for the Work specified is of the same cost and quality, or that an equitable adjustment has been agreed upon between the City and the Contractor and the amount in dollars of said adjustment; and (4) that the deviation is in the best interest of the City.
11.3. Construction Change Directive.
11.3.1. A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order.
11.3.2. Upon request of the City or the Design Professional, the Contractor shall without cost to the City submit to the Design Professional in such form as the Design
Professional may require, an accurate written estimate of the cost of any proposed extra work or change. The estimate shall indicate the quantity and unit cost of each item of materials, and the number of hours of work and hourly rate for each class of labor, as well as the description and amounts of all other costs chargeable under the terms of this Article. Unit labor costs for the installation of each item of materials shall be shown if required by the Design Professional. If required by the Design Professional, in order to establish the exact cost of new Work added or of previously required Work omitted, the Contractor shall obtain and furnish to the Design Professional bona fide proposals from recognized Suppliers for furnishing any material included in such Work. Such estimates shall be furnished promptly so as to occasion no delay in the Work, and shall be furnished at the Contractor's expense.
11.3.3. The Contractor shall state in the estimate any extension of time required for the completion of the Work if the change or extra Work is ordered. The Contractor shall document, through a critical path analysis, or some other clearly delineated explanation, how the proposed change affects other aspects of the Work, and why it would require an extension of time. The
Contractor shall promptly revise and resubmit such estimate if the Design Professional
determines that it is not in compliance with the requirements of this Article, or that it contains errors of fact or mathematical errors.
Sum, the adjustment shall be based on one of the following methods, as selected by the City, selection of which does not require the consent of the Contractor:
11.3.4.1. by unit prices stated in the Contract Documents or otherwise mutually agreed upon; or
11.3.4.2. by Cost and Percentages estimated by the Contractor as provided herein and accepted by the City, whereupon the Contractor's estimate shall become a fixed price which shall not be changed by any variation in the actual cost of executing the Work covered by the change; or
11.3.4.3. by actual Cost determined after the Work covered by the change is completed, plus Percentage; or
11.3.4.4. by submission to arbitration or a court, which shall determine the fair value of the Work covered by the change.
11.3.5. “Cost” shall mean the estimated or actual net increase or decrease in cost to the
Contractor, Subcontractor, or Sub-subcontractor for performing the Work covered by the change, including actual payments for materials, equipment rentals, expendable items, wages, and associated benefits to the workers and to supervisors employed full time at the Site, insurance, bonds, and other provable direct costs, but not including any administrative,
accounting or expediting costs, or other indirect or overhead costs, or any wages or benefits of supervisory personnel not assigned full time to the Site, or any amount for profit or fee to the
Contractor, Subcontractor, or Sub-subcontractor.
11.3.6. “Percentage” shall mean an allowance to be added to or subtracted from the Cost in lieu of overhead and profit and of any other expense that is not included in the Cost of the Work covered by the change, as defined above. Percentage for a Sub-subcontractor shall be 8% of any net increase or decrease of Cost of any Work performed by the Sub-subcontractor’s own forces plus 4% of any net increase or decrease in Cost of any Work performed for the
Sub-subcontractor by lower tier Sub-subcontractors. Percentage for a Subcontractor shall be 12% of any net increase or decrease of Cost of any Work performed by the Subcontractor’s own forces plus 4% of the Cost of Work performed by Sub-subcontractors. Percentage for the
Contractor shall be 15% of any net increase or decrease of Cost of any Work performed by the
Contractor's own forces plus 5% of any net increase or decrease in the Cost for all other Work covered by the change. When the Contractor is also performing Work as a Subcontractor or Sub-subcontractor, the Contractor shall only be entitled to a total of no more than 15% of any net increase or decrease of Cost of any Work.
11.3.7. When in the reasonable judgment of the Design Professional a series of
Construction Change Directives or Change Orders effect a single change, Percentage shall be calculated on the cumulative net increase or decrease in Cost, if any.
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11.3.8. If unit prices are stated in the Contract Documents or are subsequently agreed upon, and if quantities originally contemplated are so changed in a Proposed Change Order or
Construction Change Directive that the application of such unit prices to quantities of Work proposed will cause substantial inequity to the City or the Contractor, the applicable unit prices shall be equitably adjusted.
11.3.9. If the City elects to determine the Cost of the Work as provided in method (11.3.4.1) using unit prices stated in the Contract Documents or subsequently agreed upon, the unit prices shall be subject to the prior paragraph. Notwithstanding the inclusion of unit prices in the Contract Documents, it shall be the City's option to require the Cost of any given change to be determined by one of the other methods stated in 11.3.4. If the City elected to determine the Cost of the change by unit prices and the nature of the work is such that its extent cannot readily be measured after the completion of such work or any subsequent Work, the Contractor shall keep daily records, available at all times to the Design Professional for inspection, of the actual quantities of such Work put in place, and delivery receipts or other adequate evidence,
acceptable to the Design Professional, indicating the quantities of materials delivered to the Site for use in such unit price Work, and distinguishing such from other similar material delivered for use in Work include in the base Contract Sum. If so required by the Design Professional,
materials for use in unit price Work shall be stored apart from all other materials on the Project.
11.3.10. If the City elects to determine the Cost of the Work as provided in methods 11.3.4.3. or 11.3.4.4. or if the method of determining the Cost has not been established before the Work is begun, the Contractor shall keep detailed daily records of labor and material costs applicable to the Work.
11.3.11. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Design Professional in writing of the Contractor's agreement or disagreement with the method, if any, provided in the
Construction Change Directive for determining the proposed adjustment in the Contract Time.
11.3.12. A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in the Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order.
11.3.13. If the Design Professional and the Contractor do not agree with the adjustment in the Contract Time or the method for determining it, the adjustment or the method shall be referred to the Design Professional for determination.
11.4. Minor Changes in the Work.
“Minor changes” as used in this paragraph mean changes which are so insignificant as to not affect the Contract Sum or the Contract Time and which are not inconsistent with the intent of the Contract Documents. Any minor change shall be committed to a written order which shall be binding on both the City and the Contractor and which shall be promptly carried out by the
Contractor.
11.5. Certificate of Appropriations. (Reference: M.G.L. c. 44, §31C;). This Contract shall not be deemed to have been made until the City's auditor has certified thereon that an appropriation in the amount of this Contract is available therefor and that an officer or agent of the City has been authorized to execute said Contract and approve all requisitions and change orders. No order to the Contractor for a change in or addition to the Work, whether in the form of a drawing, plan, detail or any other written instruction, unless it is an order which the Contractor
is willing to perform without any increase to the Contract price, shall be deemed to be given until the auditor has certified thereon that an appropriation in the amount of such order is available therefore; but such certificate shall not be construed as an admission by the City of its liability to pay for such work. The certificate of the auditor that an appropriation in the amount of this Contract or in the amount of such order is available shall bar any defense by the City on the grounds of insufficient appropriation.