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State of Ohio - Controlling Board Request
STATE OF OHIO
CONTROLLING BOARD
30 East Broad Street, 34th Floor
Columbus, Ohio 43215-3457
(614) 466-5721 FAX:(614) 466-3813
OPERATING REQUEST Controlling Board No.
DOT0100929
Status:  Approved
Meeting Date:  6/15/2020

GENERAL INFORMATION
Agency
Transportation


Division/Institution
Construction Management
Waiver of Competitive Selection  (Revised Code Section 127.16B)
      No Competitive Opportunity
      Agency Released Competitive Opportunity
Agency Released Competitive Opportunity (Revised Code Section 127.162)
Other Statutory Authority/Bill Section:
Operating Transfer Request  (Revised Code Section 127.14)
      Appropriation
      Cash
      Other Statutory Authority/Bill Section:
Fiscal Year(s)
2020
Bill No.
HB 62
Eligible for OBM
Director Approval?
No

VENDOR INFORMATION
For FYAmountNameAddressCityStateCountyZip Code
DOT01 2020 $4,182,500.00 BEAVER EXCAVATING CO PO BOX 6059 CANTON OH Stark 44706

FUNDING INFORMATION
Fund GroupFund CodeAppropriation Line ItemAppropriation Line Item NameFYAmountFYAmount
HOF 7002 772422 Highway Construction - Federal 2020 $3,764,250.00 $.00
HOF 7002 772421 Highway Construction - State 2020 $418,250.00 $.00

SIGNATURES
     
Jack Marchbanks 06/15/2020
   
Agency Director or Authorized Agent On The Date Of
   
05/18/2020 W. Fletch Zimpher
   
Date Controlling Board President/OBM Director
   
AGENCY CONTACT
Name:  Will Hinman Title:  Legislative Liaison
Phone:  (614) 752 - 0401 Fax:  E-Mail:  William.Hinman@dot.ohio.gov
REQUIRED EXPLANATION OF REQUEST
  The Department of Transportation respectfully requests Controlling Board approval for a waiver of competitive selection in the amount of $4,182,500.00, from fund 7002, ALI 772422 (Highway Construction - Federal) and fund 7002 ALI 772421 (Highway Construction - State), in FY 2020 to amend the contract with Beaver Excavating Company, Canton, Ohio for a differing site condition as part of the bridge repair project on Interstate Route 77 in Stark County.  
  This $56.2 million project will improve Interstate Route 77 in Stark County by rehabilitating three bridges and replacing two bridges. Work will include pavement replacement, concrete barrier and other related repairs.

This construction project was competitively let on June 20, 2019. The Department received four bids and awarded the contract to the low bidder in the amount of $56,197,538.67. See attached Bid Tab.

This request is to perform additional drilled shaft work due to a differing site condition by change order, pending Controlling Board approval.            

The two bridges identified for replacement are IR-77 mainline and SR-30 ramp D. Each structure uses drilled shaft foundations at the piers and abutments. When construction started, the contractor began work on the drilled shafts using a using a polymer slurry to prevent the shafts from caving in during drilling. The contractor provided the district an early notice of claim for differing site conditions stating that due to the presence of cobbles 48 foot to 60 foot below the existing ground, their bid methodology using polymer slurry was not working. The district and the contractor were in dispute on this issue whether the instability of the drilled shaft was due to the presence of cobbles or the use of polymer slurry was unreasonable due to groundwater conditions. The item of dispute was then routed through the Departments Dispute Resolution and Administrative Claims Process. This is a three-step process that starts at the project level, escalates to the district level, and then escalates to the central office level, if not resolved. The contractor is required to exhaust this process prior to filing a claim against the Department in the Ohio Court of Claims.   

The dispute was not resolved at the project level and the district level. Prior to escalation to the central office level, the contractor requested Alternate Dispute Resolution (ADR) for the differing site condition claim. The Department agreed to ADR and agreed to mediation as the ADR method. Both parties agreed on a neutral third party mediator to hear the claim and scheduled two days for mediation at central office. Prior to the mediation, the both parties submitted claims documentation to the mediator. On the first day of mediation, both parties made presentation to the mediator. The mediator established ground rules framing the boundaries of mediation, identified the issues, clarified respective interests and objectives, adjusted and refined proposed solutions and recorded an agreement in writing. After one day of mediation, the Department and the contractor reached a settlement agreement. The contractor's original request for damages was $9,330,046.03. The settlement agreement will allow the contractor to receive an amount of $6,481,150.00 in damages related to the differing site condition. Part of the settlement agreement has been paid via an emergency declaration change order, as per ORC 5525.14, as to not delay the project and not incur delay damages. The remainder of the request, $4,182,500.00, will be processed on this change order.

The contractor waives all rights to any additional compensation arising out of this claim. Both parties acknowledge and agree this agreement and associated change order shall not be binding on any of the parties until the agreement has been duly presented to the State of Ohio Controlling Board and Controlling Board has approved the change order. If the Controlling Board shall fail or refuse to approve this settlement, this agreement shall be null and void.

The Department judges that the negotiated amount is fair and reasonable compensation for recognized costs and is no more than the contractor or subcontractor could obtain in a court of claims.

Existing bid items related to the drilled shafts will be non-performed in the amount of $2,268,150.00. This non-performance results in a net cost increase of $3,800,000.00 to the project.

The cost for the mediator to prepare and conduct the meeting is equally split between the Department and the contractor. A separate change order in the amount of $3,155.72 will be processed to pay the contractor for the Department's share of the mediation.

A Critical Path Method schedule analysis will be performed to determine a time extension for the differing site condition claim and processed on a companion change order.

See Settlement Agreement MOU attached to this request.

Project Specific Information:
Project Number: 328(19) PID: 90973
Project Location: Stark County, IR-77
Change Order Item: differing site condition claim

Original Contract Amount: $56,197,538.67
Previous Additions:           $1,559,960.73
Previous Non-Performances:              - $0.00
Amount this Request: $4,182,500.00
Revised Contract Amount:        $61,939,999.40

Net % increase to original contract: 10.22%
 
   
Attachments Controlling Board Request No.: DOT0100929
Attachment TypeAttachment Description
Contract project 190328 Bid Tab
Other Agency EDGE/MBE Participation Summary
Contract amendment project 190328 change order 011
Other Mediation Settlement MOU
 
Release and Permit Information
NameFYAmountR & P #R & P DateIssued ByComments
BEAVER EXCAVATING CO 2020 $4,182,500.00

Operating Request Required Information
Contract Amendment - BEAVER EXCAVATING CO
Controlling Board Request No.: DOT0100929
1. Identify the contractor and provide the contractor's address of their principal place of business.
BEAVER EXCAVATING CO
PO BOX 6059
CANTON ,  OH  44706
County: Stark
   
2. Explain why the contract is being amended and the effect on the project or program.
This request is to perform additional drilled shaft work due to a differing site condition by change order, pending Controlling Board approval.
   
3. Specify the deliverables of this contract or describe the scope of service(s) to be performed by this contractor.
This $56.2 million project will improve Interstate Route 77 in Stark County by rehabilitating three bridges and replacing two bridges. Work will include pavement replacement, concrete barrier and other related repairs.
   
4.
Cite the account category of expense being used for this purchase of service(s).
Account CategorySubobjectAmountNon-Exempt Amount
573050 $4,182,500.00 $4,182,500.00
Total Amounts $4,182,500.00 $4,182,500.00
   
5.
Provide the dates of previous Controlling Board approvals for this contract. Indicate whether the approvals were for the initial contract, amendments to this contract, or previous renewals for this contract. In addition to the
date(s) of Controlling Board approval, provide the following information depending upon the type of contract previously approved by the Controlling Board.
Initial Contract - Total amount of the initial contract or number of hours and the rate per hour.
Amendment - Total amount of the amended contract (initial + amendment) or total number of hours (initial + amendment) and the total rate per hour (initial contract + contract amendment + contract renewals within the biennium).
Renewal - Total amount of the renewed contract or the total number of hours and the total rate per hour.
CB Approval DateType of ContractAmount per FY# of HoursRate per Hour per FY
   
6. If this contract amendment affects the total amount of the contract or the total number of hours and total rate
per hour, provide the new rate information.
Total Contract Amount Total Number of Hours Total Rate per Hour FY

  $4,182,500.00

  0

  $0.00

20

7. Duration of this contract (beginning and ending dates) within the fiscal biennium, including amendment.
Beginning Date Ending Date  
06/15/2020 06/30/2020
8. Provide all subsequent renewal schedules (beginning and ending dates) and amounts associated with this contract.
Beginning DateEnding DateTotal Lease AmountFY2
  Explain contract provisions.  This is a one time competitively bid contract subject to contract amendments by change order. Amended funding amounts are encumbered in the fiscal year they occur.
9.
Provide the following employee information: Nationwide Ohio
Total Number of Employees 0    147   
Percentage of Women 0% 7.48%
Percentage of Minorities 0% 19.05%