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May-2020-Issue.Pdf UPCOMING EVENTS MassDEP and PFAS: Addressing an Emerging Contaminant through Science and Policy NEWS June 03, 2020 A MONTHLY PUBLICATION OF THE BOSTON SOCIETY OF CIVIL ENGINEERS SECTION/ASCE Using Artificial Intelligence to Help Manage Your Roads June 10, 2020 VOL. 44 | NO. 9 | MAY 2020 GA&PP Committee/Public Policy—Infrastructure Early Detection of Construction Phase Issues: The Use of Construction Documents to Identify Potential Problems Before They Report on the Appeal of Judlau-White JV of the Chief Become Disputes Engineer’s Denial of Claim June 16, 2020 by William Perry, PE, President/Founder, Perry Associates, LLC and Michael P. Sams, Esq., Kenney & Sams, PC FHWA-NHI-130053 Bridge Inspection Refresher Training September 29 –October 1, 2020 Left to right: Background William Perry, In 2015, the Massachusetts Department of FHWA-NHI-130055 Safety Inspection PE, President/ of In-Service Bridges Founder, Perry Transportation (“the Department”) and Judlau- November 30 –December 10, 2020 Associates, LLC; White JV entered into Contract #85015 which Michael P. Sams, Further Details Inside Esq., Kenney & provided for replacement of two bridges on the Sams PC Revere Beach Parkway/Route 16. The bid documents for the project contained a Notice to Contractors section which provided information The Project about the project to prospective bidders, inclu- Contract #85015: Replacement of Two Bridges ding a statement that the contract contained on Revere Beach Parkway/Route 16—The price adjustments for steel. The Notice to Woods Memorial Bridge over the Malden River, Contractors listed base prices for those items of 2019–20 Society Sponsors: and Bridge No. M-12-017 over the MBTA steel subject to price adjustment. The Parties The plans and specifications for the project Owner: Massachusetts Department of required the use of Grade 50W structural steel Transportation in replacing the two bridges. However, the General Contractor: Judlau-White JV Notice to Contractors did not include a base Subcontractor: Saugus Construction Steel price for Grade 50W. The Notice to Contractors Supplier: A.R.C. Enterprises, Inc. included base prices for other types of steel, including for example, Grade 50 steel. The Dispute MA DOT applied a steel price adjustment The Department has an internal process for credit to the contract which Judlau-White, establishing and updating base prices for Saugus and A.R.C. disputed on the basis of different types of steel on a monthly basis, which being contrac tually unsupported. continued on page 2 President’s Report by Richard Maher, PE, Managing Associate, Perry Associates, LLC Public Policy—Infrastructure. In early March, the Massachusetts House passed MassDOT continues to innovate by using the COVID-19 has created many the Transportation Revenue Bill and the Design-Build procurement process for a series of challenges, but it has also Transportation Bond Bill, which both currently planned projects listed in the table on page 5. created new opportunities in reside in the Senate. Since House passage, BSCES encourages its members to participate in the development, maintenance, COVID-19 has commanded everyone’s atten- the Commonwealth’s public comment period and funding of our infra- tion, however our infrastructure needs have not process for agency plans and budgets. BSCES structure. Prior to COVID-19, gone away. members have the expertise and foresight to issues such as congestion pricing, fare collections, On Thursday May 21, 2020 MBTA Board provide invaluable project information including and gas tax were being analyzed and relied upon. approved a $2.29 billion fiscal year 2021 budget. how they are best accomplished. The impact of COVID-19 has now complicated This provides a slight increase over the previous the budgetary variables we once relied upon to Please reach out to your local and state and year to continue maintenance and construction. determine project viability. New innovations federal officials with key points to support: The Massachusetts Water Resources Authority and fast track-projects will have to be developed Board continues to meet virtually to discuss a • Infrastructure investment is a key to emergency to meet these challenges. draft fiscal year 2021 capital investment plan. response (before, during and after) continued on page 5 2019–2020 BSCES BoardNEWS of Government NEWS 2 President: Richard D. Maher, PE President-Elect: Bruce L. Jacobs, PhD, PE Secretary: Kathryn Swanson, PE Report on the Appeal of Judlau-White continued from page 1 Treasurer: Gregory L. Mirliss Assistant Treasurer: Anthony M. Richardson, PE is based on the steel mill price lists and the In December 2016, A.R.C. submitted an up- Senior Vice Presidents: Shallan C. Fitzgerald, PE; producer price index published by the US dated package, requesting that the Department Ronald K. Burns, PE, LSP Department of Labor, Bureau of Labor Statistics; reconsider its position and further articulated however, such base prices are not accessible to and supported its primary arguments that: Vice Presidents: Michael R. Cunningham, PE; bidders unless they are included in the bid Christopher P. Hersey • The applicable statute M.G.L. c. 30, Section documents. In other words, if the Department Past President: Geoffrey B. Schwartz, PE 38A, states that a base price needs to be listed in did not include the base price in the bid the bid documents when a project is advertised, Western MA Branch Vice President: Vacant documents—as was the case here—there was no for each material subject to a price adjustment. way for the bidders to know what base price the Institute Chapter & Technical Group Chairs In this case, the Department failed to include a Department would use for a price adjustment. COPRI Boston Chapter: Bryan N. Jones, PE base price for Grade 50W steel. A.R.C. argued Construction Institute Boston Chapter: Andrew Giocondi, PE For the months of January, February, and that this fact, and the applicable statutory Engineering Management Group: Daron G. Kurkjian, PE November 2016, the Department calculated language, prohibits the Department from EWRI Boston Chapter: Marc J. Gabriel, PE price adjustments for the required Grade 50W taking a credit on contract materials for which structural steel used on the project, which no base price was included in the contract. Geo-Institute Boston Chapter: Laurie A. Gibeau, PE resulted in a total credit to the contract in the • There are physical differences between Grade SEI Boston Chapter: Michael A. Cruz, SE amount of $128,749.69. Although there was no 50 steel and Grade 50W steel, which results in T&DI Boston Chapter: Kayla (Arruda) Sousa, EIT base price for Grade 50W steel listed in the different base prices. Thus, the base price for Notice to Contractors, the Department Younger Member Group: Elisa K. Yung one type of steel should not be used to calculate calculated the price adjustment for the Grade a price adjustment for another type of steel. BSCES Newsletter Editorial Board 50W steel, using a base price of $0.48/pound, Chair: Sean Horan, EIT, [email protected] which was the base price listed in the Notice to In January 2017, the Department’s District Ronald K. Burns, PE, LSP, [email protected] Contractors for Grade 50 steel. Highway Director (DHD), rejected A.R.C.’s request for reconsideration, noting that: John C. Cavanaro, PE, [email protected] The $128,749.69 credit was eventually applied Bryon Clemence, PE, [email protected] by the Department to Judlau-White’s contract, • The contract provisions state that price Michael R. Cunningham, PE, [email protected] and subsequently passed from Judlau-White adjustments apply to “all structural and through to Saugus; and ultimately credited reinforcing steel” Annahid Dastgheib-Beheshti, PE, [email protected] against amounts owed to A.R.C. Enterprises, • Although the Department agreed that a base Jessica DeBellis, PE, [email protected] Inc. (“A.R.C.), the steel supplier. price for Grade 50W was not included in the Bruce L. Jacobs, PhD, PE, [email protected] Application of the credit was disputed Notice to Contractors, that the normal Richard F. Keenan, [email protected] After being made aware of the Department’s bidding process allows for questions to be Richard D. Maher, PE, [email protected] intentions to adjust the contract price for a steel asked, and that no question was asked David M. Manugian, PE, [email protected] price adjustment, and prior to its issuance, regarding this issue, which would have been Angus J. O’Leary, PE, [email protected] A.R.C. appealed to the Department to the proper forum for clarifying this, the reconsider its position. Within its appeal letters, Department’s “obvious error.” Daniella Roitman, [email protected] A.R.C. cited the relevant contract provisions The Contractor appealed Matthew I. Shuman, PE, [email protected] and provided examples of other contracts that The Contractor appealed centering the dispute Michael Sullivan, PE, [email protected] had similar contractual ambiguities, for which over the $128,749.69 credit that the Department the Department had not applied steel price Kathryn Swanson PE, [email protected] applied to the Contract, based on a price adjustments. A.R.C. also provided information adjustment for Grade 50W Steel, which lead to regarding, among other things, the physical implementation of the Department’s three-step differences between Grade 50 and 50W steel, claim resolution process attempting to further show why the price Boston Society of Civil Engineers Section/ASCE adjustment credit was inappropriate. Despite Disputing the DHD’s rejection of A.R.C.’s The Engineering Center, One Walnut Street , Boston, MA 02108 the additional information A.R.C. provided, the request for reconsideration, A.R.C. subsequently Phone: 617/227-5551, Fax: 617/227-6783 Department applied the credit it had calculated filed its Notice of Claim in February 2017, and Email: [email protected], Website: www.bsces.org and adjusted the contract price by $128,749.69.
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