TSB21-01(B): Project Specific Special Provisions Review - Specifications

This technical bulletin supersedes TSB12-01(B) Project-specific Special Provisions and TSB13-01(B) Approval of Specification Modifications (Project Special Provisions and Contract Change Orders).

This technical bulletin provides guidance for following the modified exemption letter from DOJ Sufficiency Review and Approval for ODOT Highway Construction Contracts that ODOT received from DOJ.

All Designers and Specification Writers are expected to utilize the Agency’s Standard Specifications and Boilerplate Special Provisions unless there are project specific, special circumstances that warrant the use of something different. When there are special circumstances requiring modifications to the Standard Specifications beyond those available with the Boilerplate Special Provisions, the expectations in this Bulletin should be followed.

All edits to the Standard Specifications Part 00100, General Conditions, other than fill-in-the-blank sections using only the options listed, and all edits to the Standard Specifications Parts 00200 through 03000 that add any general legal requirements (including warranties, surety bonds, liquidated damages, penalties, bonuses, incentives, disincentives, measurement and payment, or general legal requirements of the type addressed in the Part 00100 General Conditions) are required to be reviewed and granted approval by the DOJ before they can be used on a project.

Boilerplate Special Provisions – The Boilerplate Special Provisions modify the Standard Specifications by adding, replacing or deleting information from them. Sections of the Standard Specifications may have a related Boilerplate Special Provision. Some Boilerplate Special Provisions are stand-alone, which means that an entire section is added to the language in the Standard Specifications. The Boilerplate Special Provisions are selected and assembled for the Project Special Provisions based on design and bid items used. All Boilerplate Special Provisions have been reviewed and approved for use by the ODOT State Specifications Engineer, the Department of Justice Business Transactions Section and the Federal Highway Administration (FHWA).

DOJ – Oregon Department of Justice Business Transactions Section

PCO – Project Controls Office

Plans, Specifications and Estimate (PS&E) – The scheduled milestone wherein all elements of a project necessary for ODOT to advertise for bid have been delivered to and accepted as complete by ODOT Project Controls Office.

Project Special Provisions – The Project Special Provisions consist of a set of assembled Boilerplate Special Provisions, including the Standard Specifications by reference and any approved modifications or additions to the Boilerplate Special Provisions. The Project Special Provisions are part of the advertisement package for the construction contract and become the contract special provisions part of the contract after the contract award.

ODOT received a class exemption from DOJ Legal Sufficiency review and approval for certain highway construction contracts in 1998. The class exemption has been modified over the years to allow the extension of the class exemption. The exemption is for highway construction contracts utilizing ODOT’s Standard Specifications and associated Boilerplate Special Provisions. The current modified exemption letter is available from the State Specifications Engineer.

From the modified exemption letter:

“Responsibility for compliance with the conditions and requirements of this exemption lies with ODOT as a whole, but the primary responsibility for compliance before contract award lies centrally with PCO, under the supervision of the PCO Manager and guidance of the State Specifications Engineer, who are DOJ’s primary contact points for this exemption.”

This guidance is intended to help ensure ODOT, local agency and consultant staff will remain in compliance with the exemption issued to ODOT by DOJ. Compliance with the requirements of the exemption letter will ensure ODOT does not lose its ability to operate under the current or any future exemptions.

In 2009, a formal process was approved that documented how project specific changes to Standard Specifications and Boilerplate Special Provisions were reviewed and approved. The formal process was discontinued in 2012, but it is the expectation that the improved communications resulting from the process continues which will reduce the occurrences of non-approved specifications being incorporated into ODOT construction contracts. The process includes communications with ODOT Technical Resources, Measurement and Payment Technical Resource (when applicable), Resident Engineers and the State Specifications Engineer. Review of modifications to the Standard Specifications and Boilerplate Special Provisions by ODOT Technical Resources, Measurement and Payment Technical Resource (when applicable), Resident Engineers and the State Specifications Engineer (and DOJ when applicable) is still required.

To be in compliance with the exemption letter, the State Specifications Engineer shall review and approve all modifications to approved, standard language in Project Special Provisions. This does not include fill-in-the-blank options as long as the instructions in the Boilerplate Special Provisions are followed.

The ODOT Specifications Unit is charged with obtaining DOJ review and approval of all Boilerplate Special Provisions prior to release for general use. Each Boilerplate Special Provision includes instructions to the user on how the language is to be used and what modifications can be made. If the instructions are followed correctly, and no additions, modifications or deletions are made, further reviews, concurrences or approvals are not required by the State Specifications Engineer, the ODOT Technical Resource, the Measurement and Payment Technical Resource, Resident Engineers or DOJ.

Additions, modifications, or deletions require review and concurrence by the ODOT Technical Resource, the Measurement and Payment Technical Resource, Resident Engineer and State Specifications Engineer (and DOJ when applicable) prior to PS&E. Allow 14 days for the ODOT Technical Resource review and an additional 14 days for the State Specifications Engineer review. For modifications requiring DOJ approval, an additional 21 days review time should be allotted.

PCO staff maintains the Agency’s Technical Resource list and posts on the Specifications website. PCO also maintains the current Special Provisions Change Summary form 734-2798 and makes available for use by the Regions. The Special Provisions Change Summary form is recommended to track modifications, reviews and concurrences.

Designer, Specification Writer, Professional of Record-

Submit all non-standard specification language to the applicable ODOT Technical Resource, Measurement and Payment Technical Resource, Resident Engineer and State Specification Engineer for review and concurrence.

ODOT Technical Resources-

Provide timely review and response to all requests for review of modifications or new language.

Resident Engineer-

Provide timely review and response to all requests for review of modifications or new language.

Measurement and Payment Technical Resource (Contract Administration Engineer or designee)-

Review all Project Special Provisions measurement and payment modifications and coordinate with the State Specifications Engineer to obtain DOJ review and approval when required.

State Specifications Engineer-

Provide timely review and response to all requests for review of modifications or new language. Determine which language requires DOJ review and approval. Coordinate with DOJ for review and approval.

Each Region Tech Center is expected to develop, manage and document a process that ensures adequate communications between ODOT Technical Resources and Region staff in a way that fits with unique Region business needs and practices.

Region staff will continue to contact and discuss project specific changes with the ODOT Technical Resources, ODOT Measurement and Payment Technical Resource, Resident Engineers, Region Management and the State Specifications Engineer. The expectation is that the Region’s submittals to the ODOT Technical Resources for review and concurrence, and the Technical Resource’s responses back to the Regions, will be completed in a timely manner. Any disagreements or non-concurrences will be resolved by the State Specifications Engineer.

When there are project specific, special circumstances that warrant the use of something other than the Agency’s Standard Specifications and Boilerplate Special Provisions, the designer, professional of record (POR), and specifications writer will submit the non-standard language first to the ODOT Technical Resource and Resident Engineer, second to the ODOT Measurement and Payment Technical Resource (if applicable), and then to the State Specifications Engineer for review and concurrence. Include in the submittal email the project key number. Allow 14 days for each review and concurrence. Concurrence is required prior to PS&E.

The State Specifications Engineer determines which modifications require DOJ review and approval. The State Specifications Engineer coordinates with DOJ for review and approval. An additional 21 days is needed for modifications requiring DOJ review and approval.

After all concurrences and approvals have been received, the specifications writer is responsible for completing the Special Provisions Integrity Certification. The Special Provisions Integrity Certification certifies compliance with the DOJ modified exemption letter. The Special Provisions Integrity Certification is a required PS&E submittal item. If additional concurrences are received after the Special Provisions Integrity Certification is signed, the certification must be revised and re-signed.