Read the full stored bill text
MURIEL BOWSER
MAYOR
June 29, 2026
Honorable Phil Mendelson
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Pursuant to section 451 of the District of Columbia Home Rule Act (D.C. Official Code § 1 -
204.51) and section 202 of the Procurement Practices Reform Act of 2010 (D.C. Official Code §
2-352.02), enclosed for consideration and approval by the Council of the District of Columbia is
proposed Modification No. 1 to Contract No. DCAM -24-CS-RFP-0016 with Fort Myer
Construction Corporation, increasing the not -to-exceed amount by $24,189,423.70, from
$5,977,860 to $30,167,283.70. The increase in the not -to-exceed amount is an early release of
funds for an additional initial phase of roadway and infrastructure improvements at the Fletcher
Johnson Site.
As part of the additional initial phase of the project, Fort Myer Construction Corporation will
provide design and preconstruction services, including wet and dry utility work, while the District
and Fort Myer Construction Corporation finalize the full scope and guaranteed maximum price for
the project.
My administration is available to discuss any questions you may have regarding the proposed
contract. In order to facilitate a response to any questions you may have, please contact Delano
Hunter, Director, Department of General Services (“DGS”), or have your staff contact Dr. Jacque
McDonald, Associate Director and Chief Procurement Officer, DGS, at (202) 727-2800.
I look forward to the Council’s favorable consideration of this contract.
Sincerely,
Muriel Bowser
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
1
Pursuant to section 202(c) of the Procurement Practices Reform Act of 2010, as amended, D.C.
Official Code § 2-352.02(c), the following contract summary is provided:
COUNCIL CONTRACT SUMMARY
(Standard)
Modification No. 1 to Contract No. DCAM-24-CS-RFP-0016
Design-Build Services Fletcher Johnson
Roadway and Infrastructure Improvements
(A) Contract Number: DCAM-24-CS-RFP-0016
Contractor: Fort Myer Construction Corporation
Proposed Increased Amount
Via Modification No. 1: $24,189,423.70
Total Contract
Not-to-Exceed (“NTE") Amount: $30,167,283.70
Unit and Method of Compensation: Progress payments based on Fixed Unit Prices
Term of Contract: January 7, 2025 (date of execution of the Letter
Contract by the Department) through May 31, 2027
(Substantial Completion Date), with an
Administrative Term Date of November 30, 2027.
Type of Contract: Cost-plus fixed fee with Guaranteed Maximum
Price (“GMP”).
Source Selection Method: Competitive Request for Proposals (“RFP”)
(B) For a contract containing option periods, the contract amount for the base period and for
each option period. If the contract amount for one or more of the option periods differs from
the amount for the base period, provide an explanation of the reason for the difference:
N/A
2
(C) The goods or services to be provided, the methods of delivering goods or services, and any
significant program changes reflected in the proposed modification:
The Contractor has completed the design and pre-construction phases of the project. If approved,
the proposed Modification No.1 will authorize additional early release activities prior to
establishing the proposed Guaranteed Maximum Price ( “GMP”) to allow the Contractor to
complete the construction phase of the Project.
The Contractor shall continue to provide early release activities including:
a) Improvements to the intersections of Benning Road SE at 46th Street SE and E Street SE;
b) Reconstruction of 46th Street SE east from Benning Road SE to St. Louis Street SE;
c) Reconstruction of the missing segment of St. Louis Street SE on the eastern perimeter of
the property;
d) Construction of a new north south street extending from C Street SE to 46th Street SE;
e) Related sidewalks, street furniture, traffic signals, streetlights, trees, and other streetscape
improvements; and
f) Wet and dry utility work, including services from DC Water, Pepco, Washington Gas,
Verizon and/or Comcast, and any other necessary utility providers.
The Contractor shall be required to cause the Work to be completed in a manner consistent with
the design documents and phasing plan approved by the Department and shall provide all labor,
materials, insurance, bonds and equipment necessary to fully complete the Project in accordance
with the drawings, specifications, Project Schedule and Project Budget that are issued for the
Project. The Contractor shall pay for and obtain all necessary permits, and necessary fees for utility
connections and the like. The Project’s substantial completion shall occur on or before May 31,
2027.
The Department now seeks Council approval to execute the proposed Modification No. 1. If
approved, Modification No. 1 will increase the NTE amount from $5,977,860 by $24,189,423.70
to $30,167,283.70 to fund the construction activities required to complete the Project.
As the proposed modification would increase the Contract value by more than $1 million, Council
approval is required for this contract action.
(D) The selection process, including the number of offerors, the evaluation criteria, and the
evaluation results, including price, technical or quality, and past performance components:
The underlying Contract was competitively bid and previously submitted to and deemed
approved by the Council (CA26-0299) on July 11, 2025.
(E) A description of any bid protest related to the award of the Contract, including whether the
protest was resolved through litigation, withdrawal of the protest by the protestor, or
voluntary corrective action by the District. Include the identity of the protestor, the grounds
alleged in the protest, and any deficiencies identified by the District as a result of the protest:
3
The award of the Contract was not protested.
(F) The background and qualifications of the proposed c ontractor, including its organization ,
financial stability, personnel, and performance on past or current government or private
sector contracts with requirements similar to those of the proposed contract modification:
For nearly 50 years, Fort Myer Construction Corporation ( the “Contractor”) has served the
infrastructure needs of the District of Columbia (the “District”), Maryland , and Virginia. The
Contractor has received a number of awards for its infrastructure work throughout the District,
Maryland and Virginia and has completed notable projects such as the widening of Route 1 in
Prince William County, Virginia, the reconstruction of the intersection of MD 97 at Randolph
Road in Montgomery County, Maryland, construction of the District’s fiber optic network, and the
31st Street Bridge in the District. The Contractor reports over 900 employees and a fleet of over
1,100 modern vehicles. The Contractor has received satisfactory performance evaluations for their
work on this project as well as other similar projects completed on St. Elizabeths East Campus.
The Contractor has been determined responsible in accordance with 27 DCMR 4706.1.
(G) A summary of the subcontracting plan required under section 2346 of the Small, Local, and
Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended,
D.C. Official Code § 2-218.01 et seq. (“Act”), including a certification that the subcontracting
plan meets the minimum requirements of the Act and the dollar volume of the portion of the
Contract to be subcontracted, expressed both in total dollars and as a percentage of the total
Contract amount:
The Contractor is a certified business enterprise in accordance with the Act (CBE Number:
LZXM01976102026). The Contractor submitted a subcontracting plan that meets the minimum
requirements of the Act.
Contract Dollar Value $30,167,283.70
Contractor Self-Performing $13,575,277.66
Subcontracting Effort $16,592,006.04
Subcontracting Plan Dollar Value $10,208,055.01
SBE Subcontracting % 62%
(H) Performance standards and the expected outcome of the proposed contract modification:
The Contractor shall provide all services required to complete the required roadway and
infrastructure improvements for the Project. The Contractor is required to complete the project by
May 31, 2027 (Substantial Completion). The Contractor’s performance will be monitored by DGS
staff and DGS’ designated Program Manager. Additionally, the Contractor must adhere to the
terms and conditions of the Standard Contract Provisions for Construction and Architectural and
Engineering Contracts and the District’s Department of Transportation Gold Book.
4
(I) The amount and date of any expenditure of funds by the District pursuant to the C ontract
prior to its submission to the Council for approval:
N/A
(J) A certification that the proposed contract modification is within the appropriated budget
authority for the agency for the fiscal year and is consistent with the financial plan and
budget adopted in accordance with D.C. Official Code §§ 47-392.01 and 47-392.02:
The Office of the Chief Financial Officer has certified that the proposed Modification No. 1 NTE
amount is consistent with the Department’s budget and that adequate funds are available in the
Department’s budget in accordance with D.C. Official Code §§47-392.01 and 47- 392.02. The
applicable Fiscal Sufficiency certification accompanies this Council Package.
(K) A certification that the proposed modification is legally sufficient, including whether the
proposed contractor has any pending legal claims against the District:
Proposed Modification No. 1 has been deemed legally sufficient by the Department’s Office of
the General Counsel.
On October 17, 2024, Department was made aware that the District’s Attorney General had filed
suit against the Contractor for alleged violations of the District’s Water Pollution Act. The
Department’s leadership and Contracting Officer acknowledge the significance of the allegations.
and the potential implications the allegations could have on the status of the Contractor’s current
and future contract awards.
The Contracting Officer’s responsibility to ensure that District contracts are awarded to
responsible contractors is not a responsibility that is taken lightly. In evaluating a contractor’s
responsibility the District’s procurement regulations permit the Contracting Officer to request
information from the contractor as well as consider information available from other sources,
including the general public. In this case, the Contracting Officer considered the fact that the
Contractor has continued to perfor m satisfactorily on multiple contracts for the Department, and
the Contractor maintains a number of contracts with the District Department of Transportation.
In addition, a status update on the litigation was requested from the Contractor . The response
indicated after written discovery, t he Contracting and the Office of Attorney General for the
District of Columbia have been involved in extended settlement discussions, and the parties are in
the process of preparing a Consent Order memorializing a settlement.
In consideration of information obtained and previously provided by the Contractor, t he
Contracting has been determined responsible.
(L) A certification that the Citywide Clean Hands database indicates that the proposed
contractor is current with its District taxes. If the Citywide Clean Hands Database indicates
that the proposed contractor is not current with its District taxes, either: (1) a certification
that the contractor has worked out and is current with a payment schedule approved by the
District; or (2) a certification that the contractor will be current with its District taxes after
5
the District recovers any outstanding debt as provided under D.C. Official Code § 2-
353.01(b):
The Citywide Clean Hands database indicates that the Contractor is in compliance with the
Government of the District of Columbia tax laws and regulations . The applicable Clean Hands
certification for the Contractor accompanies this Council Package.
(M) A certification from the proposed contractor that it is current with its federal taxes, or has
worked out and is current with a payment schedule approved by the federal government:
The Contractor has certified that it is current with its federal taxes.
(N) The status of the proposed contractor as a certified local, small, or disadvantaged business
enterprise as defined in the Small, Local, and Disadvantaged Business Enterprise
Development and Assistance Act of 2005, as amended; D.C. Official Code § 2-218.01 et seq.:
According to DSLBD’s website, the Contractor is a certified Local, and Long Time Resident
Owned Business Enterprise and a Local Manufacturing Business Enterprise located in
Development Enterprise Zone. The Contractor’s CBE Number is LZXM01976102026 with an
expiration date of October 17, 2026.
(O) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
None
(P) A statement indicating whether the proposed contractor is currently debarred from
providing services or goods to the District or federal government, the dates of the debarment,
and the reasons for debarment:
The Contractor is not debarred from providing services to the Government of the District of
Columbia or the Federal Government according to the Office of Contracts & Procurement’s
Excluded Parties List and the Federal Government’s Excluded Parties List.
(Q) Any determination and findings issues relating to the C ontract’s formation, including any
determination and findings made under D.C. Official Code § 2-352.05 (privatization
contracts):
None
(R) Where the Contract, and any amendments or modifications, if executed, will be made
available online:
Once awarded, the Contract and any modifications will be posted to the Department’s website.
6
(S) Where the original solicitation, and any amendments or modifications, will be made
available online:
The original solicitation and any amendments can be found on the Department’s web site, at
https://dgs.dc.gov/event/dcam-24-cs-rfp-0016-design-build-services-fletcher-johnson-
demolitionraze-and-roadway-and
(T) A certification that the proposed contractor has been determined not to be in violation of section
334a of the Board of Ethics and Government Accountability Establishment and Comprehensive
Ethics Reform Amendment Act of 2011, D.C. Official Code § 1-1163.34a; and (2) A certification
from the proposed contractor that it currently is not and will not be in violation of section 334a
of the Board of Ethics and Government Accountability Establishment and Comprehensive
Ethics Reform Amendment Act of 2011, D.C. Official Code § 1-1163.34a:
Based upon a certification from the Contractor, the Contractor has been determined not to be in
violation of D.C. Official Code § 1-1163.34a; and will not be in violation of D.C. Official Code § 1-
1163.34a.
(U) The description of any other contracts the proposed contractor is currently seeking or holds
with the District:
District of Columbia Contracts - Current
Guiderails and Attenuators Repair and Replacement (OY4)
DCKA-2020-C-0013 FMCC #10894-4
Federal Aid Pavement Restoration – NHS (OY4)
DCKA-2021-C-0020 FMCC #10948-4
Citywide Federal Safety Improvements (OY4)
DCKA-2021-C-0022 FMCC #10904-4
Douglas Street Pedestrian Bridge
DCKA-2021-C-0050 FMCC #10908
LED Signage Procurement (OY2) (Close-Out Phase)
DCKA-2021-C-0078 FMCC #11115
Redevelopment of St. Elizabeth’s East Campus – 13th Street S.E. Infrastructure Improvements
DCAM-21-CS-IFB-0003 FMCC #10941
DC Power Line Undergrounding (PLUG) Feeder 14008 (Close-Out Phase)
DCKA-2022-C-0038 FMCC #11028
Emergency Lane Place Pedestrian Bridge (Close-Out Phase)
DCKA-2022-C-0066 FMCC #11020
7
Metropolitan Branch Trail – Fort Totten to Takoma
DCKA-2023-C-0006 FMCC #11059
Florida Avenue & New York Avenue Intersection (Close-Out Phase)
DCKA-2023-C-0010 FMCC #11038
Reconstruction of Kennedy Street from 16th Street to Georgia Avenue, NW
DCKA-2023-C-0032 FMCC #11054
Safe Routes to School
DCKA-2023-C-0036 FMCC #11095
Local Sidewalk Restoration Citywide
DCKA-2024-C-0037 FMCC #11184
Rehabilitation of I-395 HOV (Rochambeau) Bridge
DCKA-2024-C-0011 FMCC #11094
Connecticut Avenue Streetscape and Deckover
DCKA-2024-C-0044 FMCC #11119
Citywide Large Guide Sign and Traffic Sign Maintenance (OY1)
DCKA-2024-C-0058 FMCC #11105
Garfield Park – Canal Connector
DCKA-2024-C-0086 FMCC #11116
Multimodal Traffic Safety
DCKA-2024-C-0116 FMCC #11138
Redevelopment of St. Elizabeth’s East Campus – 13th Street Connector Infrastructure
DCAM-24-CS-IFB-0001 FMCC #11112
Hill East Phase II- 72” Sewer
DCAM-24-CS-IFB-0007 FMCC #11113
Fletcher Johnson Demolition/Raze and Roadway Infrastructure Improvements
DCAM-24-CS-RFP-0016 FMCC #11127
Preventative Maintenance and Emergency Bridge Repairs
DCKA-2025-C-0005 Solicitation No. DCKA-2025-TR-0114 FMCC #11148
Federal Aid Citywide Pavement Restoration (STBG)
DCKA-2025-C-0034 FMCC #11149
8
William Howard Taft Bridge – Pedestrian Railing Improvements
DCKA-2025-C-0051 FMCC #11152
Removal of Nash Street Pedestrian Bridge
DCKA-2025-S-0109 FMCC #11168
DC Powerline Undergrounding (PLUG) Feeder 15171
DCKA-2025-C-0110 FMCC #11183
South Capitol Street Salt Dome Concrete Flooring Pad
CW129023 FMCC #11172
Public Utility Design, Installation, and Infrastructure Improvements
DCAM-25-CS-RFQ-0011 FMCC #Not Assigned
Emergency Snow Removal and Dumping Services
DCKA-2026-C-0900 FMCC #11196
District of Columbia Contracts- Pending Award
Drainage and Stormwater Improvement Construction MAC IDIQ
DCKA-2025-B-0112 Award Pending
Reconstruction of Anacostia Bridge 78
DCKA-2026-B-0027 Award Pending
Guardrails and Impact Attenuator Repairs, Upgrades, and Replacements
DCKA-2026-B-0078 Award Pending
1101 4th Street, SW
Washington, DC 20024
Date of Notice: May 9, 2026 L0016520222Notice Number:
FEIN: **-***6585
Case ID: 18975106
Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
FORT MYER CONSTRUCTION CORPORATION
2237 33RD ST NE
WASHINGTON DC 20018-1505
Branch Chief, Collection and Enforcement Administration
Authorized By Melinda Jenkins
To validate this certificate, please visit MyTax.DC.gov. On the MyTax DC homepage, click the
“Validate a Certificate of Clean Hands” hyperlink under the Clean Hands section.
CERTIFICATE OF CLEAN HANDS
As reported in the Clean Hands system, the above referenced individual/entity has no outstanding
liability with the District of Columbia Office of Tax and Revenue or the Department of Employment
Services. As of the date above, the individual/entity has complied with DC Code § 47-2862, therefore
this Certificate of Clean Hands is issued.
TITLE 47. TAXATION, LICENSING, PERMITS, ASSESSMENTS, AND FEES
CHAPTER 28 GENERAL LICENSE
SUBCHAPTER II. CLEAN HANDS BEFORE RECEIVING A LICENSE OR PERMIT
D.C. CODE § 47-2862 (2006)
§ 47-2862 PROHIBITION AGAINST ISSUANCE OF LICENSE OR PERMIT
1101 4th Street SW, Suite W270, Washington, DC 20024/Phone: (202) 724-5045/MyTax.DC.gov
COPY
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Memorandum
To: Delano Hunter
Director, Department of General Services
From: Antoinette Hudson Beckham
Agency Fiscal Officer
Reference: Contract No. DCAM-24-CS-RFP-0016 Design-Build Services for Fletcher Johnson
Middle School – Roadway and Infrastructure Improvements Modification No. 1
Date: June 9, 2026
Subject: Fiscal Sufficiency Certification
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”),
I hereby state that Modification No. 1 to the Design-Build Services for Fletcher Johnson (DCAM- 24-
CS-RFP-0016) (the “Contract”) with Fort Myer Construction Corporation (the “Contractor”), in the
amount of Twenty-Four Million One Hunderd Eighty- Nine Thousand Four Hundred Twenty- Three
Dollars and Seventy Cents ( $24,189,423.70) is consistent with the Department’s current budget and
that adequate funds are available in the budget for the expenditure.
Per the Contracts & Procurement (C&P) team, t he initial Contract amount, $5,977,860.00, was
deemed approved by the Council through CA26-0299 on July 11, 2025. The initial contract included
the Letter Contract amount of $950,000.00 and authorized funding for the the Project’s full design fees
and related services (Design Fee, Design Build Fee, Lump Sum General Conditions) required for the
project.
The Department is now seeking authorization to increase the contract’s not-to-exceed (NTE) amount
by $24,189,423.70 for additional early release activities prior to finalizing the guaranteed maximum
price (GMP). This will increase the contract’s NTE from $5,977,860.00 to $30,167,283.70 ($24,189,423.70
+$5,977,860.00).
The Department of General Services (DGS – Seller Agency) has $30,167,283.70 in capital inter agency
budget authority from the Office of the Deputy Mayor for Planning and Economic Development
(DMPD – Buyer Agency).
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
The PASS/DIFS information is as follows.
Project Name Project
Number
Fund Detail AY Seller
AGY
Buyer
AGY
RQ/PO Amount Comment
EB0 to
AM0_FLETCHER
JOHNSON MIDDLE
SCHOOL
REDEVELOPMENT
300228
3030301
NA
AM0
EBO
PO720749
$950,00.00
Letter Contract
EB0 to
AM0_FLETCHER
JOHNSON MIDDLE
SCHOOL
REDEVELOPMENT
300228
3030301
NA
AM0
EB0
PO731064
$5,027,860.00
Definitive Contract
EB0 to
AM0_FLETCHER
JOHNSON MIDDLE
SCHOOL
REDEVELOPMENT
300228
3030301/3030309
NA
AM0
EB0
RK328294
$24,189,423.70
Proposed
Increase(Part of
24,189,423.70)
Total $30,167,283.70
_________________________
Antoinette Hudson- Beckham
Agency Fiscal Officer
Department of General Services
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
3924 Minnesota Avenue NE, 6th Floor Washington DC 20019 I Phone (202) 727-2800 I Fax (202) 727-7283
Memorandum
TO: Tomás Talamante
Director, Office of Policy and Legislative Affairs
FROM: Shaley Williams
Senior Assistant General Counsel
SUBJECT: Legal Sufficiency Certification
Proposed Modification No. 1 to Design ‑Build Services for the Fletcher Johnson
Middle School Roadway and Infrastructure Improvements
Contract Number: DCAM-24-CS-RFP-0016
Contractor: Fort Myer Construction Corporation
DATE: June 12, 2026
_____________________________________________________________________________
This is to certify that this Office has reviewed the above-referenced proposed Modification No. 1
and has found it to be legally sufficient, subject to submission of: (i) an y required materials and
Council approval; (ii) Council’s approval of the same; and (iii) a Fiscal Certification issued by the
Department of General Services’ Agency Fiscal Officer.
Please feel free to contact me at (202) 727-2800 with any questions.
____________________________
Shaley Williams
Senior Assistant General Counsel
X
1 Modification No. 1 authorizes an increase in the Contract's Not-to-Exceed amount for additional early release
activities prior to finalizing the guaranteed maximum price (GMP).
2 The Contractor shall perform all work including the early release activities in accordance with the 30% Design
Development Drawings provided in Attachment A.
3 The price for the early release activities is $24,189,423.70. Please see the Contractor's detailed proposal provided
as Attachment B. The Contract's Not-to-Exceed amount is therefore increased from $5,977,860 by $24,189,423.70
to $30,167,283.70.
4 All terms and conditions found in Attachment A are hereby incorporated into Modification No. 1.
5 The Substantial and Final Completion Dates remain unchanged.
6 RELEASE: It is mutually agreed that in exchange for this Modification and other consideration, the Contractor
hereby releases, waives, settles and holds the Department harmless from any and all actual or potential claims or
for delays, disruptions, additional work, additional time, additional cost, contract extensions, demands
compensations or liability under any theory, whether known or unknown, that the Contractor may have now or
in the future against the Department arising from or out of, as a consequences or result of, relating to or in
any manner connected with this Modification, the above-referenced Project, and the Contract work.
2237 33rd Street NE
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
10B. Dated (See Item 13)
January 7, 2025
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers is extended. is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
DCAM-24-CS-RFP-0016
Fort Myer Construction Corporation 9B. Dated (See Item 11)
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
9A. Amendment of Solicitation No.
is not,
X
D. Other (Specify type of modification and authority) Title 27 DCMR Sections 4728 and Contract DCAM-24-CS-RFP-0016
1
B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation
date, etc.) set forth in item 14.
C. This supplemental agreement is entered into pursuant to authority of:
solicitation and this amendment, and is received prior to the opening hour and date specified.
12. Accounting and Appropriation Data (If Required)
following methods: (a) By completing Items 8 and 15, and returning 1
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code)
15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer
Contract No. DCAM-24-CS-RFP-0016 for the Fletcher Johnson Middle School Roadway and Infrastructure Improvements
is hereby modified as follows:
copy to the issuing office.
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
E. IMPORTANT: Contractor is required to sign this document and return
Contracting and Procurement Division Capital Construction Division
3924 Minnesota Avenue NE 5th Floor 3924 Minnesota Avenue NE 5th Floor
Washington, DC 20019 Washington, DC 20019
Washington, DC 20018
X
10A. Modification of Contract/Order No.
A. This change order is issued pursuant to: (Specify Authority)
copies of the amendment: (b) By acknowledging receipt of this
(Signature of person authorized to sign) (Signature of Contracting Officer)
1. Contract Number
MODIFICATION OF CONTRACT
Page of Pages
DCAM-24-CS-RFP-0016 1 2
7. Administered By (If other than line 6)
Department of General Services Department of General Services
6. Issued By:
3. Effective Date 4. Requisition/Purchase Request No. 5. Caption
Modification No. 1 See Block 16C RK328294
15B. Name of Contractor 15C. Date Signed 16B. District of Columbia 16C. Date Signed
Design-Build Services Fletcher
Johnson Middle School Roadway
and Infrastructure Improvements
2. Modification Number
(Continuation)
Contract Number Modification No. Page of Page
DCAM-24-CS-RFP-0016 1 2 of 2
7 Contract Recap Not to Exceed Amount
Letter Contract Executed January 7, 2025 $950,000
Definitive Contract Awarded September 30, 2025 $5,027,860
Modification No. 1 Increase Not to Exceed $24,189,423.70
T $30,167,283.70
Page 1 of 121
DESIGN-BUILD AGREEMENT
FOR
FLETCHER JOHNSON MIDDLE SCHOOL
ROADWAY AND INFRASTRUCTURE IMPROVEMENTS
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
FORT MYER CONSTRUCTION CORPORATION CONTRACT NUMBER:
DCAM-24-CS-RFP-0016
%
*( $$+
"%&
Page 2 of 121
PROJECT INFORMATION
PROJECT SUMMARY
1. Project Name:
Design-Build Services for Roadway and
Infrastructure Improvements
2. Project Address:
4650 Benning Road SE Washington, DC
20019
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: Office of the Deputy Mayor for Planning
and Economic Development
5. Design-Builder: Fort Myer Construction Corporation
6. Agreement Amounts:
i. Initial NTE: $5,977,860.00
ii. Capital Ineligible Amount (Exhibit V): $0
iii. Project Budget: $35,000,000.00
Design-Builder Compensation:
Design Fee including Construction
Administration (to include the three
concept design options). The Design Fee
consists of the following elements:
Concept Design $287,100
Schematic Design $275,000
Schematic Design Cost Estimating Services $110,250
Design Development $438,900
Design Development Cost Estimating
Services $110,250
Permit Set $68,200
Construction Documents $212,300
Bidding and Construction Administration
Services $60,500
Total Design Fee (to include the three
concept design options) $1,562,500
Design-Build Fee: $837,320
%
*( $$+
"%&
Page 3 of 121
a. Base Design-Build Fee: (60%) $502,392
b. At Risk Design-Build Fee: (40%) $334,928
c. Preconstruction Fee (15% of Base
Design-Build Fee) $75,358.80
Lump Sum General Conditions: $1,578,040
Owner Directed Allowances:
a. Permit Allowance including DOB
accelerated permit $500,000.00
b. Horizontal Use Agreement Allowance $1,000,000.00
c. Six Month Maintenance Allowance $500,000.00
Contingency: To be determined at GMP
Disincentive Fee for Failure to Timely
Submit Deliverables: $7,500 plus $500 per day
Liquidated Damages for Delay in
Substantial Completion: $2,500.00 per day
GMP Basis Project Documents Design Development
GMP Proposal Submission October 30, 2025
GMP Accepted by the Department
Substantial Completion Date: May 31, 2027
Substantial Completion Phase I (Parcel A) July 15, 2025
Final Completion Date: August 1, 2027
Final Completion Phase I (Parcel A) August 15, 2025
Administrative Term Expiration Date: November 30, 2027
Letter Contract:
Period of Performance: January 7, 2025, through execution of
the Contract
NTE Amount: $950,000
Key Personnel Replacement: $25,000.00
%
*( $$+
"%&
Page 4 of 121
DESIGN-BUILD AGREEMENT
DCAM-24-CS-RFP-0016
This AGREEMENT (“Agreement” or “Contract”) is made by and between the
DISTRICT OF COLUMBIA GOVERNMENT (the “District”), acting by and
through its DEPARTMENT OF GENERAL SERVICES (the “Department” or
“DGS”), and FORT MYER CONSTRUCTION CORPORATION with address at
2237 33rd Street NE, Washington, DC 20018 (the “Design-Builder” or “Contractor”,
and collectively with the Department, the “Parties”).
RECITALS
WHEREAS, the Department issued a Request for Proposals dated April 9, 2024
(the “RFP”) to engage a design -builder to provide for the infrastructure and roadway
construction of the Fletcher Johnson Site (“FJS” ), located at 4650 Benning Road SE
Washington, DC 20019 (the “Project”);
WHEREAS, the Department intends to implement the Project through a design-
build approach. The scope of work for the Proj ect will be divided into two phases: (i)
the design and preconstruction phase; and (ii) the construction phase;
WHEREAS, the Department expects that the Project be completed no later than
May 31, 2027 (“Substantial Completion Date”)with an important milestone of July 15,
2025 for the completion of a Pad Site for Parcel A (Phase 1);
WHEREAS, the Design-Builder submitted a proposal entitled Design-Build
Services Fletcher Johnson Infrastructure and Roadway Improvements June 25, 2024,
to provide design-build services for the Project;
WHEREAS, the Department retained the Design-Builder to provide design-
build services for the Project, which is to include design, preconstruction, and
construction services for FJS;
WHEREAS, the Design-Builder shall provide the architectural, engineering,
construction and related services necessary to complete the Project, subject to the terms
and conditions set forth in this Agreement;
WHEREAS, the Department has retained the services of a program manager
(the “Program Manager”) to advise it concerning the Project;
WHEREAS, the Department has established a budget and the Design-Builder
will conduct its work in accordance with an underlying budget for the Project, which
includes but is not limited to all design fe es, hard and soft construction costs, fees,
general conditions of the Design-Builde r, and including allowances for permits,
Horizontal Use Agreement, and Six M onth Maintenance until achieving Final
Completion (such budget, the “Project Budget”); and
WHEREAS, the Department and the Design-Builder entered into a letter
contract dated January 7, 2025 (the “Letter Contract”) under which the Design-Builder
was authorized to proceed with certain desi gn, preconstruction services in furtherance
of the Project.
%
*( $$+
"%&
Page 5 of 121
NOW, THEREFORE , the Department and Design-Builder, for the
consideration set forth herein, mutually agree as follows.
ARTICLE 1 DEFINITIONS
1.1 Administrative Term.
The Agreement shall have an administrative term (the “Administrative Term”)
that runs from the effective date of the not ice to proceed to the Administrative Term
Date set forth in the Project Information S ection above. In addition, within this time
the Design-Builder shall execute and submit a Final Release of Liens and Claims in a
form and format required by a Contracting Officer ( ͆CO͇ or ͆Contracting
Officer), inclusive of providing the Depar tment with a complete set of any product
manuals ( “O&M”) and training videos, if applicab le. The Administrative Term is
established for the sole purpose of permitting the Department ’s Office of the Chief
Financial Officer to process payments in the event any payments become
due. Notwithstanding the foregoing, nothing here in shall be construed to extend the
Substantial Completion Date; extend th e Final Completion Date; or, limit the
Department’s ability to assess liquidated damages thereon.
1.2 Agreement.
The terms“Agreement” or “Contract”shall mean this entire, integrated agreement
between the Department and the Design-Build er concerning the Project, consisting of
this document and the Exhibits thereto, including but not limited to the Standard
Contract Provisions (Construction Contracts and Architectural/Engineering Services
Contracts), the construction documents released for the Design- Builder’s use and any
change orders, contract modifications or change directives that have been executed by
the Department.
1.3 Client Agency.
The governmental or quasi-governmental entity, represented by the Department,
requesting the Project.
1.4 Construction Documents.
The final Drawings and Specifications, as prepared, sealed by the Design-
Builder’s Architect/Engineer in accordance with the law, and issued by the Design-
Builder for the purpose of obtaining bids from potential trade subcontractors and
material suppliers for use in constructing the Project.
1.5 Construction Phase Services.
Services provided throughout the construc tion phase during which the Design-
Builder shall carry out the bulk of the cons truction and manage the completion of the
design for the Project.
1.6 Cost of General Conditions.
The Cost of General Conditions shall have the meaning set forth in Section 8.2
of this Agreement.
1.7 Contract Documents
The term “ Contract Documents” or “Contract” as used herein means RFP,
%
*( $$+
"%&
Page 6 of 121
Addenda, Contract Form, Standard Contra ct Provisions, Instructions to Bidders,
General Provisions, Labor Provisions, Performance and Payment Bonds,
Specifications, Special Provisions, Contra ct Drawings, approved written Change
Orders, and Agreements required to accep tably complete the Contract, including
authorized extensions thereof.
1.8 Design/Preconstruction Phase Services.
The services to be provided under Ar ticle 3 constituting the design &
preconstruction phase services to be performed by the Design-Builder.
1.9 Drawings.
The drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and wherever issued, s howing the design, locations and dimensions
of the Work, generally including plans, elev ations, sections, details, schedules and
diagrams.
1.10 Final Completion.
The point at which Substantial Completion has been achieved, all punch list
items noted at Substantial Completion have been completed and all Project documents
the Design-Builder is required to deliver to the Department as a condition to receiving
final payment have been delivered.
1.11 Final Completion Date.
The date established in the Agreement by which the Design-Builder shall achieve
Final Completion. The Final Completion Date may be modified only by Change Order
or Change Directive in accordance with the Agreement.
1.12 Fully Complete.
To undertake all of the Work necessary to fully construct and complete the
Project and execute all tasks necessary to ob tain the final certificate of occupancy for
the Project from the District of Columbia; subm it final lien releases from the Design-
Builder and Subcontractors and material suppliers; complete all punch list items to the
Department’s approval and sign -off; and cause all representations, warranties and
guarantees to be honored and otherwise fulfill all of the requirements set forth in the
Agreement.
1.13 Guaranteed Maximum Price or GMP. The maximum amount,
including, but not limited to, the design-build fee and the Cost of the Work, that will be
paid the Design-Builder to Fully Complete th e Project as set forth in Article 4. The
Guaranteed Maximum Price ( “GMP”) may be modified only by Change Order,
Contract Modification or Change Directive in accordance with the Agreement.
1.14 Hazardous Material includes but is not limited to, any toxic substance or
hazardous chemical defined or regulated pursuant to federal, state or local laws relating
to pollution, treatment, storage or disposal of waste, or protection of human health or
the environment. Such laws include, without limitation, the comprehensive
environmental response, Compensation and Liabi lity Act, the Resource Conservation
and Recovery Act, the Clean Water Act, the Clean Air Act and laws relating to
emission, spills, leaks, discharges, releases or threatened releases of toxic material. The
term Hazardous Materials shall also include petroleum and petroleum bi-products.
%
*( $$+
"%&
Page 7 of 121
1.15 Horizontal Use Agreement - An agreement entered into between DGS,
DDOT and the Contractor governing the acceptance of street opening. A sample
Horizontal Use Agreement is provided in Exhibit A6.
1.16 Notice to Proceed. A written notice to proceed, signed by the
Department’s Contracting Officer, directing the Design -Builder to proceed with the
Project or any portion of the Project (“Notice to Proceed” or “NTP”).
1.17 Phase 1
An important milestone of July 15, 2025 for the subs tantial completion of a Pad Site for Parcel
A. See Proposed Parcel A Site Plan ( Exhibit A4)
1.18 Project Schedule.
The schedule for the Project (“Project Sc hedule”) agreed to by the Department
and the Design-Builder. Such a schedule sha ll include a baseline schedule as updated
periodically by the Design-Builder, approved by the Department. The Project Schedule
shall not be changed except by a Change Order or Change Directive issued by the
Department. The Project Schedule shall be in a form and contain such detail as may be
agreed upon by the Parties and is attached hereto as Exhibit B.
1.19 Self-Performed Work.
The parties hereby agree that “Self -Performed Work” means and shall
encompass trade work performed by employ ees of: (1) the Design-Builder; (2) any
entity that is a partner or member of the entity comprising the Design-Builder; (3) any
entity that controls, is controlled by, or is under common control with the Design-
Builder; or (4) any entity that controls, is controlled by, or is under common control
with any entity that is part of the Design-Builder. Self-Performed Work is distinguished
from trade work performed by Subcontractors unaffiliated with the Design-Builder or
the entities of which the Design-Builder is comprised.
1.20 Services.
The services to be provided pursuant to the Agreement which shall include the
Design & Preconstruction Phase Services and the Construction Phase Services
necessary to deliver the Project.
1.21 Specifications.
The Specifications are that portion of the Contract Documents consisting of the
written requirements for materials, equipmen t, construction systems, standards and
workmanship for the Work, and performance of related services.
1.22 Standard Contract Provisions.
The District of Columbia Department of General Services Standard Contract
Provisions, General Provisions (Construction Contracts and Architectural/Engineering
Services Contracts), as amended, are attached hereto as Exhibits J1 and J2,
respectively and incorporated herein.
1.23 Subcontractor.
Any person, natural or legal, to whom the Design-Builder delegates performance
of any portion of the Work required by the Agreement. The term “Subcontractor,” used
without a qualifier, shall mean a subcontractor in direct contractual privity with the
Design-Builder. “Subcontractors at all tiers” shall mean not only those Subcontractors
%
*( $$+
"%&
Page 8 of 121
in direct contractual privity with the Desi gn-Builder and not the Department, but also
those performing Work pursuant to sub-subcontracts, and so on. “Subcontractors” shall
include both those who are retained to perform labor only and those who are retained
both to perform labor and to supply material or equipment. “Subcontractors” shall also
include design professionals who are not the Design-Builder’s employees and to whom
the Design-Builder delegates any part of its responsibilities under the Agreement,
except that references to “trade Subcontractors” shall exclude design professionals.
1.24 Substantial Completion.
Substantial Completion shall mean that al l of the following have occurred: (1)
the construction and installation work have been completed with only minor punchlist
items remaining to be completed; (2) a temporary certificate of occupancy and all other
required permits or approvals have been obtained; (3) draft copies of all operating and
maintenance manuals, training videotapes and warranties required by the Agreement
have been delivered to the Department and the Client Agency; (4) any supplemental
training session required by the Agreemen t for operating or maintenance personnel
have been scheduled; (5) all clean-up required by the Agreement has been completed;
(6) the Project is ready for the Department and Client Agency to use it for its intended
purpose; and (7) all equipment, supplies, materials and items to be installed have been
installed in accordance with the manufacture r’s specifications and industry standards
and have undergone and passed the requisite testing and inspections. “Minor punchlist
items” are defined for this purpose as items that, in the aggregate, can be completed
within thirty (30) days without interferi ng with the Department or Client Agency’s
normal use of the Project.
1.25 Substantial Completion Date.
The date established herein by which the Design-Builder shall achieve Substantial
Completion. The Substantial Completion Date may be modified only by Change Order,
Contract Modification or Change Directive in accordance with the Agreement.
1.26 Work.
The term “Work” refers to any and all work done in performance of the services
necessary, at any and all phases of the Agreement, to fully complete the Project.
%
*( $$+
"%&
Page 9 of 121
ARTICLE 2 GENERAL PROVISIONS
2.1 Letter Contract
The Parties acknowledge that certain of th e investigation, design and preconstruction
activities described in Article 3 of this Agreement were performed pursuant to the Letter
Contract between the Parties dated January 7, 2025. Pursuant to the terms of the Letter
Contract, upon execution of this Agreemen t by the Department (the “Agreement
Effective Date”), the Letter Contract shall automatically terminate and shall merge into
and be superseded by this Agreement. The Parties agree that any services provided or
work performed pursuant to the merged Lett er Contract, and prior to the Agreement
effective Date, shall be governed by the terms and conditions of this Agreement.
2.2 Term and Termination
The period of performance under this Agreement shall commence from the date
of execution of the Letter Contract by th e Department and shall terminate upon the
expiration of the Administrative Term or upon termination by the Department pursuant
to Articles 5 and 6 of the Standard C ontract Provisions (Construction Contracts)
(Exhibit J1 ) and Article 8 of the Standard Cont ract Provisions (Architectural &
Engineering Services Contracts) (Exhibit J2).
2.3 Relationship of Parties.
The Design-Builder accepts the relationship of trust and confidence established
with the Department by this Agreement, and covenants with the Department to furnish
the Design-Builder’s reasonable skill and judgment and to cooperate with the Program
Manager in furthering the interests of the Department. The Design-Builder shall use its
best efforts to perform the Work and comp lete the Project in an expeditious and
economical manner consistent w ith the interests of the De partment. The Department
shall endeavor to promote harmony and cooperation among the Department, Design-
Builder, Program Manager, and other persons or entities employed by the Department
for the Project. In performing its duties under this Agreement, the Design-Builder shall
at all times use the standard of care used by Design-Builders that construct projects
similar to the Project in type, size and sc ope in large, urban areas. Whenever the term
“competent” is used herein to describe the Design-Builder’s actions or duties, that term
shall refer to the level of competence customarily possessed by those Design-Builders
that construct projects similar to the Project in type, size and scope in large, urban areas.
2.4 Confidentiality of Information
The Design-Builder shall assure a nd keep all information and data obtained
throughout the performance of the Project whether related to the Agreement, the Work
in all of its aspects, the Department an d the Department’s employees confidential,
during and following the term of the Agreement, and shall not use the information in
connection with any other matters; nor shall it disclose any such information to any
other person, firm or corporation, unless disclosure is required pursuant to court order,
subpoena or other regulatory authority. The Design-Builder shall not be divulged of
confidential information without the individual’s and the Department’s written consent
and only in accordance with the District or Federal laws, codes and regulations. The
Design-Builder and any Subcontractors w ho utilize, access, or store personally
identifiable information as part of the perf ormance of this Agreement are required to
safeguard this information and immediately not ify the Department of any breach or
suspected breach in the security of such information. The Design-Builder and all
%
*( $$+
"%&
Page 10 of 121
Subcontractors shall allow the Department to both participate in the investigation of
incidents and exercise control over decisions regarding external reporting. The Design-
Builder, Subcontractors and their respective employees working on this Project may be
required to sign a confidentiality statement.
2.5 Project Description.
2.5.1 The Design-Builder shall provide Design-Build Services required for the
Project. The Project includes full design and construction services for the raze of the
existing, approximately 300,000 square foot sch ool building, the infrastructure and
roadways and a community park, in accorda nce with the Deputy Mayor for Planning
and Economic Development’s (“DMPED”) Master Plan as set forth in Exhibit A1.
2.5.2 The Design-Builder shall work closely with DGS, who will confer
with DMPED and DMPED’s potential devel opers to design and construct the
infrastructure, roadways and community park consistent with the Master Plan,
Exhibit A1a phased approach that is in the best interest of the District with a
Proposed Phasing Plan, Exhibit A2, and the District Department of
Transportation’s (“DDOT”) standards for public rights-of-way (Exhibit A5 ),
which consists of the development of st reets with associated sidewalks and
streetscape improvements including, but not limited to: a) improvements to the
intersections of Benning Road, SE with 46th Street, SE and with E Street, SE; b)
reconstruction of 46th Street, SE east from Benning Road, SE to St. Louis Street,
SE; c) reconstruction of the missing segment of St. Louis Street, SE on the
eastern perimeter of the Property; d) a new street bisecting the Property north to
south from C Street, SE to 46th Street, SE; e) related sidewalks, street furniture,
traffic lights, streetlights, trees, a nd other improvements; and f) wet and dry
utilities including DC Water, Pepco, Washington Gas, Verizon and/or Comcast
and any other necessary utility service.
2.5.3 Generally, the Design-Builder’s responsibilities shall include, but
will not be limited to, the following:
%
*( $$+
"%&
Page 11 of 121
a) To confirm the design a nd construction of the Project in accordance with
the RFP Documents;
b) To provide all design, construc tion, and construction management
services necessary to implement the goals of the Project inclusive of, but
not limited to, the following: civil, ar chitectural, electrical, structural,
and mechanical, traffic engineering, and historic preservation,
construction management services inclusive of budgeting, value
engineering (“Value Engineering”), scheduling, Project phasing, Project
administration, management and coordination of subcontractors;
c) To conduct subsurface investigation work if and as required for the
Project;
d) To furnish and provide all materials, management, personnel,
equipment, hazardous material abatement, supervision, labor and other
services necessary to complete the Project;
e) To provide the necessary design, c onsultants and documentation for all
permitting, zoning, and historic preservation approvals;
f) To provide move coordination and l ogistics support for the Project if
required to achieve Project scope and Project Schedule; and
g) To provide the Department with a GMP based on the Design
Development Documents.
.
2.5.4 During the Construction Phase, the Design-Builder shall construct the
Project. The Design-Builder shall be requi red to cause the Work to be completed in a
manner consistent with the design docu ments and phasing plan approved by the
Department and shall provide all labor, materials, insurance, bonds and equipment
necessary to fully complete the Project in accordance with the drawings, specifications,
Project Schedule and Project Budget that are issued for the Project. The Design-Builder
shall pay for and obtain all necessary permits, and necessary fees for utility connections
and the like.
2.6 Program Manager.
The Department has engaged a Program Manager to provide certain program
management functions. Such a Program Manage r shall, at all times, be acting solely
for the benefit of the Department, not the Design-Builder. The Design-Builder hereby
acknowledges and agrees that only a duly authorized and designated Contracting
Officer shall have the authority to issue Change Orders, Contract Modifications
or Change Directives on the Department’s behalf. As of the date that this
Agreement is executed, the Department’s duly authorizing Contracting Officers
are set forth in Exhibit I.
2.7 General Description of Design-Builder’s Duties.
2.7.1 Generally, the Design-Builder shall perform the services in a professional
workmanlike manner. The Design-Builder sh all supply and furnish at the location
where the Work is to be performed all design service, labor, materials, equipment, tools,
services, and supervision, and shall bear all items of expense, necessary to complete
and satisfactorily perform this Agreement, except such items that the Department, in
this Agreement, specifically agrees to supply or furnish to or for the use of the Design-
Builder. Any labor, materials, equipment, tools, services or supervision not specifically
described in this Agreement, but which may be fairly implied as required thereby or
necessary to properly complete the Work, shall be deemed within the Scope of the Work
%
*( $$+
"%&
Page 12 of 121
and shall be provided by the Design-Builder at the Design-Builder’s sole expense.
2.7.2 The Design-Builder shall work with the Department and the Project
stakeholders through a collaborative design process to a fully realized Project in
accordance with the available Project budget. The Design-Builder shall: (i) engage in
extensive pre-design and preconstruction efforts to ensure that the design is developed
in a manner consistent with the Department’s goals for the Project (e.g., programmatic,
budgetary, schedule and quality); (ii) to develop a comprehensive Project phasing; (iii)
to solicit competitive trade bids for the construction work and to develop an acceptable
GMP and corresponding scope and schedule for the work; and (iv) to implement the
requisite construction and other work necessary no later than the Substantial
Completion Date.
2.8 Warranties and Representations
2.8.1 All disclosures, representations, warranties, and certifications the Design-
Builder makes in its proposal in response to the RFP shall remain binding and in effect
throughout the term of the Agreement. The De sign-Builder reaffirms that all such
disclosures, representations, warranties, and certifications are true and correct.
2.8.2 If any disclosure, representation, warranty or certification the Design-
Builder has made or makes pursuant to the RFP or the Agreement, including, without
limitation, representations concerning the Design- Builder’s construction or design
experience and qualifications, claims or li tigation history or financial condition, is
materially inaccurate, that shall constitute a material breach of the Agreement, entitling
the Department to any and all available remedies.
2.8.3 The terms and conditions of this Section 2.8 shall apply during both the
Design & Preconstruction and Construction Phases.
2.9 Responsibility for Agents and Contractors.
At all times and during both the Design & Preconstruction and Construction
Phases, the Design-Builder shall be responsible to the Department for any and all acts
and omissions of the Design-Builder’s agents, employees, Subcontractors, Sub -
Subcontractors, material suppliers, and labor ers, and the agents and employees of the
Subcontractors, Sub-Subcontractors, material suppliers, and laborers performing or
supplying Work in connection with the Project.
2.9.1 Project Sustainability Requirements
2.9.1.1 Net Zero Energy and Energy Consumption Requirements: The
Department requires the Design-Builder to propose and subsequently incorporate net
zero infrastructure strategies that can be utilized for future building design and
certification through either the International Living Future Institute’s (“ILFI”) Zero
Energy Building program or U.S. Green Bu ilding Council’s (“USGBC”) LEED Zero
program. The Design-Builder shall make recommendations on the most advantageous
infrastructure installation that will facilitate future retrofit.
2.9.1.1.1 Solar-Readiness Requirements: The Design-Builder shall
make the Project solar-ready by running electrical conduit for future solar locations on
roofs and/or facades and building steel canopies to support solar in the future. While it
%
*( $$+
"%&
Page 13 of 121
is assumed solar panels will be a part of the design to achieve Net Zero Certification, it
shall not be the only strategy to achieve the Project goals. The Design-Builder shall
present iterative design options to the Department.
%
*( $$+
"%&
Page 14 of 121
ARTICLE 3 DESIGN-BUILDER’S DESIGN & PRECONSTRUCTION
SERVICES
3.1 Preconstruction Services. During the Design and Preconstruction Phase, the
Design-Builder, in consultation with the Department, shall: (i) develop conceptual plan
and cost estimates; (ii) develop a draft fi nal conceptual site plan/response and cost
estimate; (iii) prepare and submit soft a nd hard copies of the complete set of 35%
Schematic Design Documents; (iv) prepare and submit soft copies of the 50% Design
Development Documents and budget, approximately half way through the Design
Development phase as a progress set to the Department; (v) prepare soft and hard copies
of the complete set of 50% Design Development Documents, Specifications, and
Design-Builder’s cost estimate and schedule; (vi ) prepare soft and hard copies of the
complete set of 95% Construction Documents, Specifications, and Design- Builder’s
cost estimate and schedule; (vii) review existing condition assessment and
recommendation; and (vii) obtain all necessary building permits to support the Project
Schedule.
3.1.1 Without limiting the generality of the foregoing, during the
Preconstruction Phase, the Design-Builder sh all: (i) work with its Architect and any
design consultants to advance the design for the Project in consultation with the Client
Agency, the Department, and its Program Manager; (ii) obtain bids from trade
subcontractors to perform the work described in the Design Development Documents
and provide bid tabulations to the Department ; (iii) engage in any Value Engineering
and scoping exercises necessary to return the cost of the work to the Project Budget;
(iv) engage in preconstruction activities, including identifying any long-lead items; (v)
develop a GMP proposal for the Project; and (vi) enter into a GMP for the Project.
Throughout the Design & Preconstruction Phase, the Design-Builder shall schedule and
attend regular meetings with the Departme nt, the Program Manager, and the Design-
Builder’s Architect/Engineer.
3.2 Initial Deliverables. The Preconstruction Phase will start from the issuance
of the Notice to Proceed through the ex ecution of the GMP amendment (“GMP
Amendment”). The Department may issue a Notice to Proceed for preconstruction
services (the “Preconstruction NTP” or “Letter Contract”), To the extent there are any
ambiguities or inconsistencies between the RFP, the Standard Contract Provisions (for
Construction Contracts and Architectural/ Engineering Services Contracts) and the
Preconstruction NTP, the order of precede nce shall be: the Standard Contract
Provisions; Preconstruction NTP; and the RFP. The Design- Builder’s initial task shall
be to advance the Master Plan, Site Util ity Layout, and Proposed Phasing Plan to a
complete schematic design, develop a phasing plan and budget for the Project. As part
of this effort, the Design-Builder shall prepare and provide the following initial
deliverables:
3.2.1 Baseline Schedule. Within fifteen (15) days after the Preconstruction
NTP is issued, the Design-Builder shall pr epare and submit a Baseline Schedule for
the Project (the “Baseline Schedule”). The Baseline Sche dule shall be subject to
review and approval by the Department, and the Design-Builder shall incorporate such
adjustments to the Baseline Schedule as may be reasonably requested by the
Department. The Baseline Schedule shall be prepared in a critical path method
%
*( $$+
"%&
Page 15 of 121
(“CPM”) in a sufficient level of detail to permit the Department and the Design -
Builder and any other affected parties to properly plan the Project. The Baseline
Schedule shall include but not be limited to the following key milestones:
1. Construction Management Plan Submission;
2. Concept Design Submission;
3. Concept Design Department review period;
4. Early Start Agreement(s) Submission Date(s);
5. Schematic Design Submission;
6. Schematic Design Department review period;
7. 50% Design Development Submission;
8. Design Development Submission;
9. Design Development Department review period;
10. GMP Submission Date;
11. Construction Document Submission;
12. Permit Submission(s);
13. Anticipated Permit approval(s);
14. Release dates for the key subcontractors and long-lead materials;
15. Utility completion;
16. Site grading completion;
17. Stormwater management completion
18. Roadway completion;
19. Sidewalk completion;
20. Final inspections;
21. Pad Site Turnover; and
22. Final Acceptance.
3.2.1.1 The Baseline Schedule shall include durations and logic ties for
those building systems that the Design-Builder is recommending for replacement.
The Baseline Schedule must also be submitted in Primavera 6 native format and shall
be updated by the Design-Builder, at a minimum, on a monthly basis.
3.2.2 Concept Design. No later than twelve (12) weeks after the
Preconstruction NTP is issued. The Design-Builder shall prepare and submit a
proposed concept design for the Master Plan, Proposed Phasing Plan, Site Utility
Plan and Proposed Parcel A Site Plan as outlined in Exhibit A1, A2, A3 and A4
respectively. As part of the concept design phase, the Department requests two (2)
concept options or alternatives. Each of the concept designs shall contain at least
the level of detail contemplated in industry best practices for a concept design. The
design submittal shall specifically id entify any deviations from the Proposed
Phasing Plan ( Exhibit A2 ) and shall explain the rationa le and cost implications
associated with such deviation. The Departme nt shall have the right to disapprove
the concept design submittal for any reason. Following review of the concept design
submissions by DMPED and the Department, the Department shall approve a final
concept design for submission to DDOT. The Design-Builder shall revise the
concept design submission as necessary to incorporate comments, feedback and
other direction provided by DMPED and the Department. The Design- Builder’s
pricing shall assume that such revisions will be required, and such revisions shall
not entitle the Design-Builder to additional compensation. The requirements for
the Concept Design are as referenced in the Master Plan Exhibit A1 .D e s i g n -
Builder shall create and submit to the Department a checklist verifying all
%
*( $$+
"%&
Page 16 of 121
requirements are met using Exhibit A1 shall be provided as a coversheet for the
Concept Design submission to the Department.
3.2.3 Preliminary Budget Estimate. Concurrently with the delivery of the
concept design, the Design-Builder shal l submit a detailed cost estimate of the
proposed design (such estimate, the “Preliminary Budget Estimate”). The Design-
Build Fee, the general conditions cost, a nd contingencies shall be broken out in
separate line items. The primary purpose of the Preliminary Budget Estimate is to
aid the Department and the Client Agen cy in understanding the costs associated
with key elements of the Proj ect to better prioritize and manage the use of the
funding allocated to this Project. All estimates shall be broken into corresponding
phases with the Community Park as a separate category.
3.2.4 Baseline Budget and Program. The Department shall provide the
Design-Builder with a baseline budget and program and comments on the concept
design. In the event the Design-Builder does not receive such approval within
fourteen (14) days after submitting the Preliminary Budget Estimate, it shall so
advise the Program Manager (“PM”), and the Contracting Officer in writing of such
failure and request direction. If the Design-Builder fails to provide such notice, the
Design-Builder will be proceeding at its own risk and will be responsible for any
redesign costs associated with budget revisions.
3.2.5 Construction Management Plan. The Design-Builder shall submit
a draft of its construction management and P roject phasing plan (“Construction
Management Plan”) within fourteen (14) da ys after the Preconstruction NTP is
issued to include, but is not limited t o, site security (perimeter fencing), noise
control, hours for construction and deliveries, truck routes, trash and debris removal
plan, traffic and parking control, comm unications procedures, emergency
procedures, quality control procedures, dust control, public street cleaning and
repair, planned occupancy of public ways, erosion control, tree protection plan,
vibration monitoring, existing and adjacent bui lding surveys plan , temporary fire
protection measures, project signage, pest control, construction staging plan,
and construction logistics plan.
3.3 Additional Preconstruction Services. In addition to those items
enumerated above, the Design-Builder shall provide such preconstruction services
as are necessary to properly advance the P roject. These services shall include, but
are not limited to, scheduling, estimating, shop-drawings, the ordering of long-lead
materials, condition assessments, archeol ogical studies, recommended testing,
additional geotechnical testing, and monitoring of historic assets.
3.4 Disincentive Fee for Failure to Timely Provide Deliverables. The
Design-Builder acknowledges that the Department is engaging the Design-Builder
to provide an extensive level of precons truction support services to minimize the
potential for cost overruns, schedule delays or the need for extensive Value
Engineering/re-design late in the Project and that the deliverables required under
Section 3.2 are key to identify the value of such services. In the event the Design-
Builder fails to deliver any of the deliverables required in Section 3.2 (and unless
such failure is the result of any event of Force Majeure), the Design-Builder shall
be subject to a disincentive fee in th e amount of Seven Thousand Five Hundred
Dollars ($7,500) plus Five Hundred Dollars ($500) per day after receiving written
notice from the Contracting Officer of failure to submit such deliverables.
%
*( $$+
"%&
Page 17 of 121
3.5 Design Services; Design Reviews. The Design-Builder shall meet with
the representatives of the Department and DMPED throughout the Design &
Preconstruction Phase as the design progresses in order that these representatives
and other stakeholders can have input in and approve the design direction at
appropriate times. The Design-Builder shall ensure that the design is developed in
a manner consistent with the Project budget, i.e., designed-to-budget, as well as the
programmatic requirements set forth and attached hereto as Exhibit A1 and the
Department’s other requirements for the Project. All Design Documents shall be
prepared by the Design- Builder’s duly licensed engineers. The GMP basis
documents and all interim design submissi ons shall be subject to review and
approval by the Department, and the Design -Builder shall be required to revise
these Project documents to address concerns raised by the Department and/or other
Project stakeholders and such revisions sh all not entitle the Design-Builder to an
increase in the Design Fee.
3.6 Design Management.
3.6.1 RESERVED
3.6.2 Between the time the Preconstruction NTP is issued and the time the
GMP is accepted by the Department, the De sign-Builder shall use commercially
reasonable best efforts to ensure that: (i) the design evolves in a manner that is
consistent with the Department’s budget and programmatic requirements, as the
same were defined and established by the De partment at the end of the concept
design; (ii) the design work is properly c oordinated; and (iii) the required design
deliverables are produced on or before th e dates contemplated in the Project
Schedule. As part of this undertaking, the Design-Builder shall provide the
following:
3.7 Schematic Design. The Design-Builder shall prepare a schematic design
for the Project that is a logical development of the approved concept design and is
consistent with the Department’s schedule, budget, and programmatic
requirements. The schematic design shall contain at least the level of detail
contemplated in industry best practices for a schematic design. The design submittal
shall specifically identify any deviations from the approved concept design and
shall explain the rationale, cost, and ti me implications associated with such
deviation. The Department shall have the right to disapprove the schematic design
submittal for any reason. Following a rev iew of the schematic design submission
by DMPED and the Department, the Design-Builder shall make revisions to the
schematic design submission as necessary to incorporate comments, feedback, and
other direction provided by DMPED and the Department. The Design-Builder’s
pricing shall assume that such revisions will be required, and such revisions shall
not entitle the Design-Builder to additional compensation. The requirements and
tasks for the Schematic Design are as referenced in Exhibit A1.
3.7.1 Schematic Budget Update. Concurrent with submission of the schematic
design, the Design-Builder shall subm it a budget update. The budget update shall
be submitted in the same format as the preliminary budget estimate and shall show
variations from the preliminary budget esti mate. The Design-Builder shall include
a cost estimate and value engineering analysis and detailed recommendation for
project savings (even if the project is not over budget). To the extent the budget
update shows an overrun from the approv ed budget, the Design-Builder shall
%
*( $$+
"%&
Page 18 of 121
submit value engineering (not scope reduc tions, but true value engineering that
allows the design to meet all Project re quirements within budget) suggestions that
would return the Project to budget. Only the Department shall have the authority to
increase the Project budget, and absent such direction, the Deign-Builder shall
proceed on the assumption that the budget re mains as originally directed by the
Department.
3.8 Constructability/Sole Source/L ong-Lead Time Memorandum.
Concurrently with the Schematic Design Budge t Estimate, the Design-Builder shall
prepare a memorandum identifying key construction concerns related to the Project.
Such a memorandum shall: (i) assess the constructability issues related to the Project,
including site logistics; (ii) identify any long-lead delivery items that could adversely
affect the schedule contemplated in this RFP. To the extent any such long-lead items
are identified, the memorandum shall make recommendations for addressing such
items.
3.8.1 Early Start Work & Long Lead Materials The Department may
release the Design-Builder to commence Early Start Work including but not limited
to geothermal, below grade work, utility work (abandonments), or other early
activities, as applicable. It is envisioned that this work may be released by the
Department in advance of the GMP. If the Design-Builder believes an earlier release
is required in order to meet the Project Schedule, it shall advise the Department and
make a recommendation as to the requested release date. Any decision to authorize
an early start shall be made by the Department in its sole and absolute discretion.
3.9 Design Development. The Design-Builder shall prepare a set of Design
Development Documents that is a logica l development of the approved schematic
design and is consistent with the Department’s schedule, budget, and programmatic
requirements. Prior to the full Design Development Submission, the Design-Builder
shall submit a progress set of drawings, sp ecifications, and budget at the half-way
point through the Design- Builder’s Design Development phase. The final Design
Development Documents shall contain at le ast the level of detail contemplated in
industry best practices for Design Deve lopment Documents. The design submittal
shall specifically identify any deviations from the approved schematic design and
shall explain the rationale and cost implications associated with such deviation. The
Design-Builder shall include a cost estimate and Value Engineering Analysis and
Detailed Recommendation for Project savings (even if the Project is not over
budget). The Department shall have the right to disapprove the Design Development
Documents submittal for any reason. The requirements and tasks for Design
Development are as referenced in Exhibit A1.
3.10 Permits. The Design-Builder shall be responsible for preparing,
submitting and paying for all of the required permit applications that are necessary
to complete the Project. The Design-Bui lder shall develop a list of the required
permits and shall track the progress of all such permits through the review process.
The Design-Builder shall update the Department with the status of each permit that
is required for the Project. The Design-Builder shall engage such permit expediters
as the Design- Builder deems necessary or appropri ate in light of the Project’s
schedule. The Design-Builder shall participate in DDOT ’s Horizontal Use
Agreement for streamlined plan reviews and permit approval program as part of the
permit allowance included in this Contract . The Design-Builder shall provide the
%
*( $$+
"%&
Page 19 of 121
resources necessary to support these requirements.
3.11 Entitlements. The Design-Builder shall prepare, as part of the design
and pre-construction phase, such materia ls and make such presentations as are
necessary to obtain the required land use and entitlement approvals. Approvals may
be required from but not limited to: (i) the Office of Zoning; (ii) Office of Planning
(“OP”); and (iii) the Historic Preservation Office (“HPO”).
%
*( $$+
"%&
Page 20 of 121
ARTICLE 4 – FORMATION OF GMP PROPOSAL
4.1 General.
4.1.1 The Design-Builder shall provide the Department with a GMP based on
the Design Development Documents. The De partment anticipates an Early Start
Agreement (“ESA”) and subsequent GMP packages. The ESA and the GMP associated
with this Project shall be agreed upon in the manner set forth in this Article 4.
4.1.2 During the Design & Preconstruction Phase, the Design-Builder shall
cause the Design- Builder’s Architect to prepare the GMP Basis Project Documents.
Based upon the GMP Basis Project Documents , the Design-Builder shall propose a
GMP (referred to as the “GMP Proposal”) which shall be submitted in accordance with
this Article. The Design-Builder acknow ledges and understands that the GMP Basis
Project Documents will be incomplete at the time it submits its GMP Proposal.
Although complete construction Project Docu ments will not be available and many
details will not be shown on GMP Basis Proj ect Documents or will otherwise need to
be adjusted, the GMP proposed in the Design- Builder’s GMP Proposal shall be
intended to represent the Design-Builder’s offer for the Final Completion of the Project.
If the Design- Builder’s GMP Proposal is acceptable to the Department, it shall be
memorialized in form of an amendment to this Agreement (such amendment, the “GMP
Amendment”). Such amendment shall be in the form of Exhibit M attached hereto.
4.1.3 As part of the GMP Amendment, the Design-Builder shall certify that
the GMP established thereby: (i) contains sufficient amounts to perform all Work
necessary for the Final Completion of the Project; and (ii) contains sufficient amounts
to provide and construct any items or facilities that are not contained in the GMP Basis
Project Documents, but which are necessary for a fully functioning facility that meets
the programmatic requirements established for the Project. The Design-Builder will
further covenant and agree in the GMP Amendment that it will perform all of the
construction work necessary for the Final Completion of the Project, including, without
limitation, aspects of the Work that are not shown on the GMP Basis Project
Documents, but which are a logical developm ent of the design intent reflected in the
GMP Basis Project Documents, for an amount not to exceed the GMP.
4.2 Review of GMP Basis Project Documents. The Department has selected the
Design-Builder, in large part, because of its special expertise in constructing similar
projects. Before submitting its GMP, the Design-Builder shall review the GMP Basis
Project Documents for accuracy, constructability, and completeness and shall bring
such deficiencies to the attention of the Department and shall cause its Architect to
address any such deficiencies. To the extent that any such deficiencies in the GMP
Basis Project Documents could have been identified by such review by a competent
Design-Builder, such deficiencies shall not be the basis for a change in the GMP or
delaying the Project Schedule.
4.3 Contingency. The Cost of the Work shall include a contingency, which shall be
a sum established by the Department and the Design-Builder to cover, among other
things costs necessary to address scope expansion that is a logical development of the
design, issues arising from or as a result of deficiencies in the GMP Basis Project
Documents and other costs which are properly reimbursable as Cost of the Work but
not the basis for a Change Order, such as costs that were not reasonably foreseeable as
%
*( $$+
"%&
Page 21 of 121
of the effective date of this Agreement, including such items as emergencies,
unforeseeable changes in market conditions for materials or labor, or subsurface, soils
or site conditions that were neither known nor reasonably discoverable as of the
effective date of the Agreement (the “Contingency”). During the Construction Phase,
the Design-Builder shall keep the Program Manager and the Contracting Officer
informed as to the status of the Contingency and shall, at a minimum: (i) advise the
Program Manager and Contracting Officer when draws reach 3% upon the
contingency in a timely manager; and (ii) provide the Program Manager and
Contracting Officer with running status of the Contingency balance at least once
every two (2) weeks.
4.4 Trade Bids.
4.4.1 Subcontractors and Suppliers; Bidding Procedures. During the Design &
Preconstruction Phase, the Design-Builder shall seek to develop subcontractor interest
in the Project. Within fifteen (15) da ys after the completion of the schematic design,
the Design-Builder shall provide to the Department for its review and approval a written
submission on the proposed bidding procedures. Such procedures shall include (i) a
list of proposed trade packages; (ii) a list of trade subcontractors that will be invited to
bid on each such package; and (iii) a narrative description of the process. At least three
(3) potential subcontractors shall be identified for each trade package. A copy of this
deliverable must be submitted to both the Program Manager and the Contracting
Officer. In the event the Department does not approve the proposed bidding procedures
within fifteen (15) days after its receipt, such procedures shall be deemed approved
unless the Department advises that such is still under review.
4.4.2 Bidding. Following the Department’s approval of the Design Development
Documents, the Design-Builder shall manag e the trade bidding process in accordance
with the approved bidding procedures and shall use commercially reasonable best
efforts to solicit at least three (3) qualified and bona fide bids for each trade package
that has an expected value in exce ss of One Hundred Thousand Dollars ($100,000).
Trade packages shall not be parceled, split or divided to avoid the $100,000 threshold.
In addition to the information normally required in such bids, the Design-Builder shall
also require subcontractors to provide an estimate of the percentage of labor hours
performed in completing the subcontracted work which will be performed by District
residents. The Design-Builder shall ca refully document its procedures for making
available bid packages to potential bidde rs, the contents of each bid package,
discussions with bidders at any pre- bid meetings, bidders’ compliance with bid
requirements, all bids received, the Design- Builder’s evaluations of all bids, and the
basis for the Design-Builder’s recommendation as to which bidders should be chosen.
The Department shall be afforded access to all such records at all reasonable times so
that, among other things, it may independently confirm the Design-Builder’s adherence
to all requirements set forth in the Agreement, including, without limitation, affirmative
action requirements and subcontracting requirements.
4.4.3 Bid Tab. As part of the negotiations leading up to the GMP, the Design-Builder
shall provide to the Department tabulations of the trade bids solicited and copies of all
trade bids. In general, the bid tab shall be presented in a tabular format that compares
the bids received and any other relevant information (i.e. exclusions, past performance
history, etc.). The bid tabulation shall include scope assessments and identify required
leveling of the trade submitted. To the extent that the Design-Buil der’s award
%
*( $$+
"%&
Page 22 of 121
recommendation is based on scoping adjustmen ts, the Design-Builder shall clearly
identify the scoping adjustment and the need for such adjustments. Such bid tabulation
shall include LSDBE utilization information in addition to price and other information.
Such bid tabulations as well as copies of the bids shall be submitted to the Department’s
Program Manager. The Design-Builder represents and warrants that the bid tabs so
submitted shall fairly represent the results of the subcontractor bidding process and that
the Design-Builder shall not misrepresent any such data to the Department or its
Program Manager.
4.5 Value Engineering. Based on the trade bids received, the Design-Builder shall
prepare a written report of suggested Value Engineering strategies necessary to
reconcile the costs of constructing the Project Budget, if necessary. The Design-
Builder shall meet with the Department’s representatives to discuss any Value
Engineering and changes in the scope necessary to ensure that the Department’s
schedule and programmatic requirements are met and that the budget is not exceeded.
The Design-Builder shall cause the Design-Builder’s Architect to implement and
price any approved Value Engineering strategies.
4.6 Basis of Guaranteed Maximum Price. Based on the trade bids, the Design-
Builder shall submit a GMP proposal to the Department. The GMP Proposal shall
include the following elements:
a. A list of drawings, specifications, a ddenda, general, supplementary, and other
conditions on which the GMP is based (Exhibit W).
b. A list of unit prices and allowance items and a statement of their basis (Exhibit
X). The Design-Builder shall include the following allowances:
a. Permit Allowance including Department of Buildings
(“DOB”) accelerated permit: $500,000.00;
b. Horizontal Use Agreement Allowance: $1,000,000.00; and
c. Six Month Maintenance Allowance: $500,000.00.
c. Assumptions and clarifications made in preparing the GMP Proposal, noting, in
particular, any exclusions (Exhibit Z). The assumptions and clarifications shall
take precedence over the drawings and specifications. The Design-Builder shall
prepare a separate memorandum that highlights any differences between the
then approved drawings and the modifications made in the assumptions and
clarifications. Such memorandum shall specifically address any changes in the
Project aesthetics, functionality, or performance.
d. The proposed GMP, includes a statement of the detailed cost estimate organized
by trade categories, allowances, contingency, and other items and the fees that
comprise the GMP.
e. An update to the Project’s schedule to which the Design -Builder will agree to
be bound. This update shall be prepared in the same level of detail and in the
same manner as the Baseli ne Schedule, and without any change, to the
Substantial and Final Completi on Dates unless approved by the Department’s
Contracting Officer.
f. A subcontracting plan setting forth the names and estimated dollar volume of
the work that will be performed by LSBDEs, as certified by the Department of
Small and Local Business Development, upon which the GMP is based.
g. Each GMP may include an agreed upon sum as the Design- Builder’s
Contingency and the Owner Allowance (s), each of which shall be identified as
a separate line item in the GMP’s Schedule of Values.
%
*( $$+
"%&
Page 23 of 121
A. Construction contingency
i. The Design- Builder’s Contingency shall be utilized to compensate
for the increased Cost of the Work incurred by the Design-Builder
due to unforeseen circumstances relating to construction of that
Project which resulted in an unavoidable increase in costs, except
when deemed the responsibility of the Department in accordance
with this Contract. If the Design-Builder fails to include all of the
required scope of work in the bid packages, Design-Builder
Contingency may be used to purchase the omitted scope, until the
Design-Builder’s Contingency balan ce reaches zero or until the
balance equals the anticipated subcontractor modifications. All
requests to use the Design- Builder’s Contingency shall be
submitted as a Request for Change Order (“RCO”). Charges to the
Design-Builder’s Contingency shall not become due and payable
until the RCO is approved in writing by the Department’s
Contracting Officer and becomes a Change Order. If the Design-
Builder’s Contingency reaches zero, any cost overruns or charges
that could have been charged to the Design-Builder’s Contingency
shall be the sole responsibility of the Design-Builder.
ii. If bids are received below the appl icable line items in the GMP, the
surplus will be added to the Design-Builder’s Contingency for that
Project. If bids exceed the a greed-upon line items in a GMP, the
deficiency will be charged to the Design-Builder’s Contingency for
that Project, however, such events shall not be cause to increase the
GMP.
iii. Once all subcontracts anticipated by a GMP have been awarded,
including any self-performed work, the Department may require the
Design-Builder to reduce the Design-Builder’s Contingency to an
amount as agreed to by the partie s to reflect the Design-Builder ’s
risk from that point in the Project forward.
iv. Upon Final Completion of the Project, any remaining Design-
Builder’s Contingency, if any, shall be reduced to zero by a
Contract Modification and the Design-Builder shall have no
entitlement to the balance.
B. Owner contingency
i. The Department retains the right to increase the GMP in lieu of
charging any cost to the Ow ner contingency. Any unused
Contingency, whether Department Contingency or the Design-
Builder Contingency, shall be reco nciled to a zero balance via a
Contract Modification upon Final Completion.
ii When the Design-Builder propose s to use the Owner contingency,
the Design-Builder shall prepare an RCO, identifying the amount
sought to be charged to the Owner contingency, the reasons why
the amount should be charged to that Contingency and
demonstrating to the satisfaction of the Department that the costs
to be incurred are necessary for the Work and are the responsibility
of the Department. At all times, the Design-Builder shall avoid
and mitigate Department Continge ncy costs whenever possible.
%
*( $$+
"%&
Page 24 of 121
Before payment or as part of an audit, the Design-Builder and the
Department shall have authority to verify the actual costs incurred.
No costs may be charged to the Owner contingency until the RCO
is approved in writing by the Department and becomes a Change
Order.
iii The Owner contingency shal l be an amount, determined by the
Department, which will be availa ble to compensate the Design-
Builder for the increased Cost of the Work incurred by the Design-
Builder due to a Contract Modification or to other increases in the
Cost of the Work which the Depar tment determines, in its sole
discretion, is its responsibility. The Department may increase,
decrease or eliminate the Owner contingency at any time.
4.7 Department Review of GMP Proposal. The Design-Builder shall meet with the
Department to review the GMP Proposal and the written statement of its basis. In the
event that the Department discovers any inconsistencies or inaccuracies in the
information presented, the Department shall promptly notify the Design-Builder, who
shall make appropriate adjustments to the GMP Proposal, its basis, or both.
4.8 Department Acceptance of GMP Proposal. The Department and the Design-
Builder shall meet to negotiate the terms of the GMP Proposal. If the GMP Proposal
is acceptable to the Department, the Department shall submit the resulting GMP
Amendment to the Council for the District of Columbia. The GMP shall be subject to
review and approval by the Council for the District of Columbia in the event it
exceeds the previously approved contract value by more than $1 million. In such an
event, the GMP shall not be effective until so approved. Please note that the Council
submission and approval timeline varies, and Offerors should plan for 60-90 days on
average for this process, taking into consideration that Council is not in session over
the summer months.
4.9 GMP Amendment. In the event the Department and the Design-Builder are
unable to agree upon the GMP or the schedule for the Project, the Department shall
have the right to terminate the Agreement and assume any trade subcontracts held by
the Design-Builder. In such an event, the Design-Builder shall only be entitled to
Fifty percent (50%) of the Preconstruction Fee.
4.10 Certification. As part of the GMP Proposal submitted in accordance with this
Article, the Design-Builder agrees to specifically acknowledge and declare that the
Contract Project Documents are sufficiently complete to have enabled the Design-
Builder to determine the Cost of the Work therein in order to enter into the GMP
Amendment and to enable the Design-Builder to agree to construct the Work outlined
therein in accordance with applicable laws, statutes, building codes and regulations to
the best of Design-Builder’s knowledge, and otherwise to fulfill all its obligations
hereunder. The Design-Builder shall further acknowledge that it has visited the site,
examined all conditions affecting the Work, is fully familiar with all of the conditions
thereon and affecting the same, and has carefully examined all drawings and
specifications provided to it.
%
*( $$+
"%&
Page 25 of 121
ARTICLE 5 - CONSTRUCTION PHASE
5.1 General.
The Construction Phase shall not commence until the Department issues a Notice to
Proceed for Construction Phase Services. Th e Design-Builder shall, through Subcontractors
or, with the written consent of the Department, with the Design-Builder’s own forces, perform
all of the Work necessary to construct the Project so that it is complete, safe, and properly built
in strict accordance with the approved Cons truction Project Documents and the other
requirements of this Agreement. Without li mitation, the Design-Builder shall provide all of
the labor, materials, tools, equipment, temporary services, and facilities necessary to complete
the Project in accordance with the drawings, specifications, Project Schedule and Budget that
are issued for the Project. The Design-Builder shall be responsible for paying for and obtaining
all necessary permits and to pay all necessary fees for utility connections. The Work shall be
carried out in a good and workmanlike, first- class manner, and in a timely fashion. All
materials and equipment to be incorporated into the Project shall be new and previously unused,
unless otherwise specified by the Department, and shall be free of manufacturing or other
defects. The Work shall be accomplished in accordance with the following:
a. Manage all aspects of the Project.
b. Manage weekly progress meetings. Progress mee tings include site visits from design
consultants with field reports reviewed on a monthly basis.
c. Provide completed Quality Control checklists for implementation of the project.
d. Review and process shop drawing submissions, RFIs, etc.
e. Prepare meeting notes and records of deci sions/changes made. Please note that all
such meeting notes and records of decisions/changes made shall be taken by the
Design-Builder without the use of any AI software or similar AI tool.
f. Conduct pre-closeout inspections.
g. Review closeout documents for completeness, such as As-Built Drawings based on
the Contractor’s red line drawings and/ or coordinated set developed during the
subcontractor coordination process. As-Built Drawings should be transmitted to
DGS in hard copy, PDF, and CAD formats.
5.2 Design Completion.
5.2.1 Mid-Point Construction Project Document Review. Based on the approved
Design Development Documents and any approved Value Engineering, the Design-Builder
shall prepare a set of Construction Documents. It is contemplated that the Construction
Documents. It is contemplated that the Construction Documents will be issued in accordance
with the proposed phasing plan.
5.2.2 Construction Project Document Review & Coordination. The Design-Builder
shall complete each of the Construction Documen ts packages in a manner that addresses the
concerns raised by the Department during the review contemplated in Section 5.2.2 for such
package. The Design-Builder shall issue one or more set of permit documents to the
Department for its review and approval (“Permit Set”). Regarding each such set, the Design-
Builder shall highlight (or bubble) any aspect of the design that represents a material deviation
from the approved Design Development Documents and shall address in a narrative format the
impact, if any, such departure shall have on the Project’s aesthetics, functionality or
performance. The Department shall have the ri ght to disapprove the Construction Documents
for any reason. If the Department disapproves the Construction Documents, the Design-Builder
will not be entitled to any additional compensation. If, however, the Department disapproves a
%
*( $$+
"%&
Page 26 of 121
Construction Document that is a logical ex tension of the approved Design Development
Documents, the Design-Builder will be entitled to an adjustment to the GMP and/or the Project
Schedule unless such a package departs from th e Scope of Work fairly reflected in the GMP
Drawings and Specifications and in such event the Design-Builder shall be required to prepare
a revised design that complies with the GMP drawings and specifications (“Drawing s and
Specifications”) and without any entitlement to an increase inthe GMP or an adjustment of the
Project Schedule.
5.2.3. Code Review. The Design-Builder shall submit the Permit Set to the
Department of Buildings (“DOB”) in order to obtain the necessary building permits for the
Project. The Design-Builder shall monit or the permit process and shall incorporate any
changes or adjustments required by the Code Official. The Design-Builder shall also issue any
such changes to the Department for its review and approval. In this submittal, the Design-
Builder’s Architect shall highlight (or bubble) any aspect of the design that represents a
material deviation from the permit set Project D ocuments and shall address in a narrative
format the impact, if any, such departure shall have on the Project’s aesthetics, functionality or
performance. Subsequent to obtaining the necessary building permits, the Design-Builder shall
prepare one or more sets of “issued for construction Project Documents” (the “IFC Set(s)”).
5.2.4. Design Changes. If it should become necessary to amend any of the approved
IFC Set(s), the Design-Builder shall prepare an amendment to the drawings and shall submit
such amendment to the Department for its review and approval. In this submittal, the Design-
Builder shall highlight (or bubble) any aspect of the design that represents a material deviation
from the permit set documents and shall address in a narrative format the impact, if any, such
departure shall have on the Project’s aesthetics, functionality or performance. In the event the
Department does not approve such document with in ten (10) business days after issuance,
unless otherwise denied, such document shall be deemed approved, provided however that the
Department has not advised that such document is still under review.
5.2.5 Third Party Contractors. The Department will hire third party contractors for
plan review and for testing and material inspections. The Design-Builder shall coordinate and
work with the Program Manager and third-part y plan reviewer during the building permit
process.
5.2.6 Final Maintenance and Operations Plan . The Design-Builder shall submit,
for the Department’s review, as-builts and final roadway turnover documentation following
Substantial Completion.
5.3 Subcontracting and Administration
5.3.1 It is contemplated that all or substantiall y all of the construction of the Project
will be carried out by trade Subcontractors and that those trade subcontracts will be awarded
through the competitive bid process contemplated in Section 0 The Design-Builder shall enter
into a written agreement with each subcontract or. The trade subcontractors will be under a
written contract with the Design -Builder. All subcontracts and agreements for the supply of
equipment or materials awarded for the Project shall be fixed-price contracts unless otherwise
expressly authorized by the Department, in writing. It is understood and agreed, however, that
certain trade packages (such as the mechanical and electrical packages) may be awarded on a
design-assist or design-build basis and that such trade packages may be awarded on such other
basis subject to the Department’s consent as to the bidding procedures and economic structure
with regard to those packages. The Design-B uilder and its affiliates may not carry out trade
%
*( $$+
"%&
Page 27 of 121
work with its own forces without the Department ’s written permission, for which permission
may be withheld or conditioned by the Department in its sole and absolute judgment.
5.3.2 In addition to the open book reporting requirements set forth in Section 5.10,
the Design-Builder shall provide the Department with a copy of all quotes or proposals
submitted by potential subcontractors.
5.3.3 The Design-Builder shall develop a purchasing strategy to address the expedited
schedule and conditions of this Project and shall include appropriate provisions in the
subcontracts to minimize the cost impact associated with such conditions. Such strategies may
include but are not limited to (i) obtaining from subcontractors unit price quotes for typical
coordination items; (ii) setting aside allowanc es for coordination work; and (iii) such other
techniques as may be employed by the Design-Builder.
5.3.4 The Design-Builder shall carefully document its procedures for making
available bid packages to potential bidders, the contents of each bid package, discussions with
bidders at any pre-bid meetings, bidders’ compliance with bid requirements, all bids received,
the Design- Builder’s evaluations of al l bids, and the basis for the Design- Builder’s
recommendation as to which bidders should be chosen. The Department shall be afforded
access to all such records at all reasonab le times so that, among other things, it may
independently confirm the Design- Builder’s adherence to all requirements set forth in the
Agreement including, without limitation, affirmat ive action requirements and subcontracting
requirements.
5.3.5 The Department may, in its sole discretion, reject any or all bids and proposals
received for any bid package, and may require the Design-Builder to obtain new or revised bids
or proposals.
5.3.6 The Department may, in its sole discretion, direct the Design-Builder to accept
a bid from a qualified bidder other than the bi dder to whom the Design-Builder recommends
award of a subcontract or supply agreement. If the Department chooses this option, it shall
issue a Change Order to the Design-Builder for any difference between the cost of the
subcontract or supply agreement awarded and th e bid price of the Subcontractor or supplier
recommended by the Design-Builder, but without any adjustment to the Design-Build Fee.
5.3.7 The Department must approve all Subcontractors and suppliers. The
Department may elect to review the form of any subcontract or agreement with a material
supplier to ensure that such contract incorporates the contractual provisions required by this
Agreement.
5.3.8 The Design-Builder must contract for provision of all services and materials for
the Project (other than Self-Performed Work wh ich must be authorized in advance and in
writing by the Department) via written subcontracts or, for contracts requiring provision of
materials or equipment only, and not labor, via written supply agreements. All subcontracts
and supply agreements shall include the following provisions:
5.3.8.1 that, to the extent of the work or s upply within the agreement’s scope, the
Subcontractor or supplier is bound to the Design-Builder for the performance of all obligations
which the Design-Builder owes the Department under the Agreement;
5.3.8.2 that the Subcontractor or supplier is not in privity with the Department
and shall not seek compensation directly from the Department on any third-party beneficiary,
%
*( $$+
"%&
Page 28 of 121
quantum meruit, or unjust enrichment claim, or otherwise, except as may be permitted by any
applicable mechanic’s lien law;
5.3.8.3 that the Department is a third-part y beneficiary of the subcontract or
supply agreement, entitled to enforce any rights thereunder for its benefit;
5.3.8.4 that the Subcontractor or supplier consents to assignment of its
agreement to the Department, at the Department ’s sole option, if the Design-Builder is
terminated for default;
5.3.8.5 that the Subcontractor or supplier shall comply immediately with a
written order from the Department to the Design-Builder to suspend or stop work;
5.3.8.6 that the Subcontractor or supplier shall maintain records of all Work it
is requested or authorized to do on a time and ma terial or cost-plus basis, or with respect to
claims that it has asserted on a time and materials or cost-plus basis, during the Project and for
a period of time specified in the General Conditions and requiring the Subcontractor or supplier
to make those records available for review or audit by the Department during that time;
5.3.8.7 that the Subcontractor shall obtain and maintain, throughout the Project,
workers’compensation insurance in accordance with the laws of the District of Columbia (This
provision is not applicable to supply agreements);
5.3.8.8 that, if the Department terminates the Agreement for convenience, the
Design-Builder may similarly terminate the subcontract or supply agreement for convenience,
and that the Subcontractor or supplier shall, in such a case, be entitled only to the costs set forth
in Article 6 of the Standard Contract Provisions (Construction Contracts);
5.3.8.9 that the Department shall have the right to enter into a contract with the
Subcontractor or supplier for the same price as its subcontract or supply agreement price less
amounts already paid, if the Design-Builder f iles a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it;
5.3.8.10 that the Subcontractor or supplier shal l not be entitled to payment for
defective or non-conforming work, materials or equipment, and shall be obligated promptly to
repair or replace non-conforming work, materials or equipment at its own cost;
5.3.8.11 a provision requiring that Subcontract ors and suppliers promptly pay
Subcontractors and suppliers at lower tiers, imposing upon the Subcontractors and suppliers a
duty to pay interest on late payments, and barring reimbursement for interest paid to lower tier
Subcontractors or suppliers due to a Subcontractor’s or supplier’s failure to pay them in timely
fashion;
5.3.8.12 a provision requiring that all Subcontractors at all tiers comply with the
provisions of Article 13 (Econom ic Inclusion Goals); provided, however, that the Design-
Builder may, in its reasonable discretion im pose a different LSDBE subcontracting goal on
some or all of its Subcontractors; provided, fur ther, however, that nothing in this provision
shall be deemed to excuse the Design-Builder from using its best efforts to achieve the LSDBE
subcontracting goal on an aggregate basis for the Project;
5.3.8.13 a provision which allows the Design-Builder to withhold payment from
the Subcontractor if the Subcontractor does not meet the requirements of the subcontract;
%
*( $$+
"%&
Page 29 of 121
5.3.8.14 lien and claim release and waiver provisions substantially identical to
those in this Agreement.
5.3.9 Within seven (7) calendar days of receiving any payment from the Department
that includes amounts attributable to Work performed or materials or equipment supplied by a
Subcontractor or supplier, the Design-Builder shall either pay the Subcontractor or supplier for
its proportionate share of the amount paid to the Design- Builder for the Subcontractor’s or
supplier’s Work or materials or equipment, or notify the Department and the Subcontractor or
supplier, in writing, of the Design- Builder’s intention to withhold all or part of the payment
and state the reason for the withholding. All m onies paid to the Design-Builder under the
Agreement shall be used first to pay amounts due to Subcontractors or suppliers supplying
labor or materials for the Project and only money remaining after such payments are made may
be used for other items such as the Design-Bui ld Fee. Monies paid by joint check shall be
deemed to have been paid fully to the Subcontractor or supplier named as a joint payee, unless
the Department agrees otherwise in writing. Any interest paid to Subcontractors or suppliers
because the Design-Builder has failed to pay them in timely fashion shall not be reimbursable
as part of the Cost of the Work.
5.3.10 The Design-Builder shall not enter into any profit sharing, rebate, or similar
arrangement with any Subcontract or or supplier at any tier with respect to the Project or the
Work to be carried out for the Project.
5.3.11 The Design-Builder shall not substitute or replace any subcontractor or supplier
approved by the Department without the Depart ment's Contracting Officer and DSLBD prior
written consent.
5.3.12 The Department has the right to contact Subcontractors or suppliers at all tiers,
or material or equipment suppliers directly to confirm amounts due and owing to them or
amounts paid to them for Work on the Project, and to ascertain from the Subcontractors or
suppliers at all tiers their projections of the co st to complete their work or to supply their
material or equipment, or the existence of any claims or disputes. In doing so the Department
shall not issue any directions to Subcontractors or Suppliers at any tier.
5.3.13 If it comes to the Department ’s attention that a Subcont ractor or supplier has
not been paid in timely fashion (other than for disputed amounts), and if the Design-Builder
fails to cure the problem within five (5) calendar days after the Department gives it written
notice of the failure to pay, the Department may make payments to the Subcontractor or
supplier and Design-Builder by joint check. If the payment was already made to the contractor,
the joint check be for future payments (if any).
5.3.14 The Design-Builder shall provide an evaluati on of each of its subcontractors’
performance by completing and submitting to the Department the Subcontractor Performance
Evaluation Form set forth as Exhibit N, as follows:
a. Within ninety (90) days of initiating the Construction Phase; and
b. Within thirty (30) days after Final Completion of the Project.
5.3.15 The Design-Builder shall be required to provide to the Contracting Officer a
certificate of insurance for each subcontractor before such subcontractor begins work.
5.4 Weekly Progress Meetings & Schedule Updates . The Design-Builder shall
schedule and conduct, at a minimum, week ly progress meetings following the Design-
%
*( $$+
"%&
Page 30 of 121
Builder’s generated agenda at which the Department, the Design- Builder’s Architect, the
Program Manager, the Design-Builder and appropriate Subcontractors can discuss the status of
the Work. The Design-Builder shall prepare and promptly distribute meeting minutes. In
addition, the Design-Builder shall submit monthly schedule updates with bi-weekly look ahead
schedules which shall reflect actual conditions of Project progress as of the date of the update.
The update shall reflect the actual progress of construction, identify any developing delays,
regardless of their cause, and reflect the Design-Builder’s best projection of the actual date by
which Substantial Completion a nd Final Completion of the Project will be achieved. Via a
narrative statement (not merely a critical path method schedule), the Design-Builder shall
identify the causes of any potential delay and state what, in the Design-Builder ’s judgment,
must be done to avoid or reduce that delay. The Design-Builder shall point out, in its narrative,
changes that have occurred since the last update , including those related to major changes in
the scope of work, activities modified since the last update, revised projections of durations,
progress and completion, revisions to the sche dule logic or assumptions, and other relevant
changes. Any significant variance from the previous schedule or update shall also be identified
in a narrative, together with the reasons for the variance and its impact on Project completion.
All Schedule updates shall be in a native format reasonably acceptable to the Department (e.g.,
Primavera). The Department may make reasonable requests during the Project for changes to
the format or for further explanation of information provided. Submission of updates showing
that Substantial Completion or Final Completion of the Project will be achieved later than the
applicable scheduled completion date shall not constitute requests for extension of time and
shall not operate to change the scheduled completion date(s). The Department’s receipt of, and
lack of objection to, any schedule update showing Substantial Completion or Final Completion
later than the dates agreed upon in the Project Schedule shall not be regarded as the
Department’s agreement that the Design-Builder may have an extension of time, or as a waiver
of any of the Department’s rights, but merely as the Design-Builder’s representation that, as a
matter of fact, Substantial Completion or Final Completion of the Project may not be completed
by the agreed upon date in the P roject Schedule. Changes to the scheduled completion dates
may be made only in the circumstances and only by the methods set forth in this Agreement.
5.5 Written Reports. The Design-Builder shall provide written reports to the
Department on the progress of the entire Work at least monthly from Preconstruction Notice
to Proceed until Final Completion of the Projec t. The monthly report shall include: (i) an
updated schedule analysis, including any plans to correct defective or deficient work or
recover delays; (ii) an updated cost report; (iii) a monthly review of cash flow; (iv) a quality
control report; and (v) progress photos. Such written report Such written report shall including
the following elements:
5.5.1 Construction Progress Update. Each monthly update shall contain a narrative
description of the Project progress and a critical path method schedule in Primavera format,
including any plans to correct defective or deficient work or for time lost due to delays.
5.5.2 Cost Update. The monthly update shall reflect, by Guaranteed Maximum Price
line item, the original line-item amount, approved, pending, and proj ected Change Order
amounts, the cost incurred to date, the projected cost to complete the Work of the line item,
and any variance between the actually approved budgeted balance of the line item and the
projected cost to complete. A clear distinction must be made between approved Change Orders
and those merely requested or anticipated. Th e report shall explain all variances including
“buy-outs” or final actual costs including those below their respective Guaranteed Maximum
Price line item. In addition, the report must disclose any instances in which the Design-Builder
has transferred amounts from one line item to another, or from the Contingency to any other
%
*( $$+
"%&
Page 31 of 121
line item. Neither submission of, nor the Department ’s failure to reject an update reflecting
that the projected cost to complete the Project exceeding the Guaranteed Maximum Price will
operate to increase the Guaranteed Maximum Price or waive the Department’s right to enforce
the Guaranteed Maximum Price. If the report re flects budget overruns, it must also include a
recovery plan.
5.5.3 Economic Inclusion Report. The monthly report shall include a detailed
summary of the Design- Builder’s efforts and results with respect to the economic inclusion
goals set forth in this Agreement. Such report shall be in a format acceptable to the Department
and shall include, at a minimum: (i) the Design- Builder’s overall performance with respect to
the goals; (ii) a listing of subcontracts and agreements with material suppliers during the month
and the percentage of those subcontracts and agre ements with material suppliers awarded to
LSDBEs; (iii) a listing of subcontracts during the month and the estimated percentage of the
labor hours to be worked by District of Columbia residents pursuant to those subcontracts; and
(iv) a description of the major subcontracting a nd supply opportunities that will be solicited
during the next three (3) months and the actions being taken to meet the subcontracting goals.
5.5.4 Cash Flow Update. If there have been any changes to the anticipated cash flow
for the Project, such changes shall be disclose d and explained in the monthly report. If there
are no such changes, the report shall so state.
5.5.5 Quality Assurance Report. The monthly report shall include a detailed
summary of the steps that are being employed to ensure quality construction and workmanship.
Each report shall specifically address issues th at were raised by the Department and/or its
Program Manager during the prior month and outline the steps that are being taken to address
such issues.
5.5.6 Progress Photos. The monthly report shall include updated progress photos
that shall detail changes in the Work during the month. The Design-Builder shall also maintain
a daily log containing a record of weather, S ubcontractors working on the site, number of
workers, major equipment on the site, Work ac complished, problems encountered and other
similar relevant data as the Department may reasonably require. The log shall be available to
the Department, the Design-Builder’s Architect and the Program Manager, and on a monthly
basis a copy of the log shall be submitted to the Department.
5.6 Cost Control System. The Design-Builder shall use a system of cost
control for the Work in a format consistent with the GMP Drawings & Specifications and
approved by the Department, which shall include, without limitation, regular monitoring of
actual costs for activities in progress and estimates for uncompleted tasks and proposed
changes. The Design-Builder shall identify variances between actual and estimated costs and
report the variances to the Department, the Design-Builder’s Architectand the Program
Manager at regular intervals.
5.7 Key Personnel.
5.7.1 To carry out its duties, the Design-Builder shall provide at least the key personnel
identified in Exhibit F to this Agreement (“Key Personnel”), who shall carry out the functions
identified in Exhibit F. Among other things, the Key Personnel shall include:
5.7.1.1 Key Personnel of the Design-Builder :
%
*( $$+
"%&
Page 32 of 121
a) Project Manager;
b) Superintendent;
c) Safety Manager;
d) Quality Assurance/Quality Control Manager;
e) Project Executive; and
f) Development Manager.
5.7.1.2 Key Personnel of the Design- Builder’s Architect/Engineer
a) Project Manager;
b) Project Architect; and
c) Principal in Charge.
5.7.2 It is contemplated that these Key Personnel will work from the design stage,
purchasing and throughout the bulk of the field work. The Design- Builder’s obligation to
provide adequate staffing is not limited to providing the Key Personnel, but is determined by
the needs of the Project. The Design-Builder shall not replace any of the Key Personnel without
the Department’s prior written approval. If any of the Ke y Personnel become unavailable to
perform services in connection with the Agreement due to death, disability or separation from
the employment of the Design-Builder or any affiliate of the Design-Builder, then the Design-
Builder shall promptly notify the Department’s Contracting Officer and propose a replacement
acceptable to the Department. The Department shall be entitled to complete information before
approving such replacement, including, but not limited to, a current resume of the proposed
replacement to include qualifications and experience.
5.7.3 Certain members of the Design- Builder’s Key Personnel shall be subject to a
replacement fee for their removal or reassignment by the Design-Builder. Those members of
the Design-Builder’s Key Personnel subject to a replacement fee shall be identified in Exhibit
F as subject to the replacement fee provisions. In the event there is no delineation in Exhibit
F of those members of the Design- Builder’s Key Personnel subject to the replacement fee
provisions of this Agreement, then all of the Key Personnel shall be subject to the replacement
fee provisions of this Agreement.
5.7.3.1 Removal or Replacement of Key Personnel. Subject to the terms of Section
5.7, if the Design-Builder replaces one of the key personnel listed in Exhibit F as being subject
to a replacement fee, without the prior written consent of the Department, then the Design-
Builder shall pay to the Department ’s Contracting Officer the amount set forth in the Project
Information Section of this Agreement as replacement fee and not a penalty, to reimburse the
Department for its administrative costs arising from the Design-Builder’s failure to provide the
Key Personnel. The foregoing replacement fee amount shall not bar recovery of any other
damages, costs or expenses other than the Department’s internal administrative costs.
5.7.3.2 In addition, the Department shall have th e right, to be exercised in its sole
discretion, to remove, replace or to reduce the scope of services of the Design-Builder in the
event that a member of the Key Personnel has been removed or replaced by the Design-
Builder without the prior written consent of the Department ’s Contracting Officer. In the
event the Department exercises the right to remove, replace or to reduce the scope of services
of the Design-Builder, the Department shall ha ve the right to enforce the terms of this
Agreement and to keep-in-place those members of the Design-Buil der’s team not removed
or replaced and the remaining members shall complete the services required under this
Agreement in conjunction with the new members of the Design-Builder’s team approved by
%
*( $$+
"%&
Page 33 of 121
the Department’s Contracting Officer.
5.8 Qualified Personnel/Cooperation. The Design-Builder shall employ on the
Project only those employees and Subcontractors who will work together in harmony and
who will cooperate with one another on the Project. The Design-Builder shall enforce strict
discipline, good order and harmony among its employees and its Subcontractors and shall
remove from the site any person who is unfit for the work or fails to conduct herself or
himself in a proper and cooperative manner. If the Department requests removal of any
person as unfit or as having behaved inappropriately, the Design-Builder shall promptly
comply.
5.9 Warranty. The Design-Builder warrants to the Department that materials
and equipment furnished under the Project Documents will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that for the one (1) year period
following the Substantial Completion Date the Work will be free from defects not inherent in
the quality required or permitted, and that the Work will conform to the requirements of the
Contract Documents. The Design-Builder’s warranty excludes remedies for damage or defect
caused by abuse, modifications not executed by the Design-Builder, improper or insufficient
maintenance, improper operation, or normal wear and tear from normal usage. The Design-
Builder shall use commercially reasonable efforts to schedule a joint inspection of the Project
during the eleventh month after Substantial Completion is achieved. During such inspection,
the Design-Builder and a representative of the Department shall walk the Project to identify
any necessary warranty work.
5.10 Open Book Reporting. The Design-Builder shall maintain an open book
reporting system with the Department, allowing the Department or its consultants access to
the Design-Builder’s Subcontractors and material suppliers, invoices, purchase orders,
Change Order estimates, records for Self-Performed Work, and other relevant Project
documentation and sources of information concerning the Work or costs. The Department
shall not use its access to the Subcontractors to give instructions or directions to them. All
instructions or directions shall be given only to the Design-Builder.
5.11 Claims for Additional Time.
5.11.1 Time is of the essence of this Agreement. The Project must be Substantially
Complete no later than the Substantial Completion Date set forth within the Project Information
Section above.
5.11.2 The Design-Builder will perform the Wo rk so that it shall achieve Substantial
Completion by the Substantial Co mpletion Date. Unless the fail ure to achieve Substantial
Completion by the Substantial Completion Date is a result of an Excusable Delay, as defined
in Section 5.11.3, the delay shall be deemed Non- Excusable and the Design-Builder shall not
be entitled to an extension of time. Without limiting the generality of the foregoing, delays for
the following reasons shall be regarded as Non-Excusable and shall not entitle the Design-
Builder to an extension of time:
5.11.2.1 Delays due to job site labor disputes, work stoppages, or suspensions of
work;
%
*( $$+
"%&
Page 34 of 121
5.11.2.2 Delays due to adverse weather, unless the Design-Builder establishes
that the adverse weather was of a nature and duration in excess of averages established by data
from the U.S. Department of Commerce, Nati onal Oceanic and Atmospheric Administration
for the Project locale for the ten (10) years preceding the effective date of the Agreement. For
purposes of this clause, weather shall only be deemed “adverse” if the weather in question was
more severe than that encountered at the Project site over the last ten (10) years for the month
in question. Such determinations shall be made based on the number of rain/snow days or the
cumulative precipitation total for the month in question. Notwithstanding the foregoing, named
storms shall conclusively be deemed “adverse”;
5.11.2.3 Delays due to the failure of the Design-Builder or Subcontractors or
material suppliers at any tier to perform in timely or proper fashion, without regard to concepts
of negligence or fault; or
5.11.2.4 Delays due to Site Conditions whether known or unknown as of the
effective date of the Agreement, foreseeable or unforeseeable at that time, naturally occurring
or man-made; provided, however, that delays due to differing Site Conditions as permitted by
Article 4, Section A of the Standard Contract Provisions (Construction Contracts) or Hazardous
Materials Remediation shall be deemed an Excusable Delay.
5.11.3 The Design-Builder shall be entitled to an adjustment in the Substantial
Completion Date due to an Excusable Delay. The term “Excusable Delay” shall mean:
5.11.3.1 Delays due to adverse weather other th an those that are classified as a
Non-Excusable delay in accordance with Section 5.11.2.2 of this Agreement;
5.11.3.2 Delays due to acts of God, war, unavoidable casualties, civil unrest, and
other similar causes of delay that are beyond the control of the Design-Builder; provided,
however, that in no event shall a Non-Excusable Delay or the action or inaction of the Design-
Builder, or any of its employees, agents, Subcontractors or materi al suppliers be deemed an
Excusable Delay; or
5.11.3.3 Delays caused by differing Site Conditions as permitted by Article 4,
Section A of the Standard Contract P rovisions (Construction Contracts) or Hazardous
Materials Remediation as contemplated in Section 5.11.2.4 of this Agreement;
5.11.3.4 Delays due to suspensions of work;
5.11.3.5 Delays caused by the Client Agency or separate contractors of the Client
Agency to the extent such delays are not concurrent with delays caused by the Design-Builder
or any of its employees, agents, subcontractors or material suppliers; or
5.11.3.6 In addition to the forgoing, a delay shall be deemed to be an Excusable
Delay only to the extent that such delay (i) warr ants an extension in the Substantial or Final
Completion Date; (ii) has not been caused by the Design-Builder or any of its employees,
agents, Subcontractors or material suppliers; (iii) is on Project’s critical path; and (iv) is in
addition to any time contingency periods set forth in the critical path.
5.11.4 If the Design-Builder wishes to make a claim for an adjustment in time allotted
per the Project Schedule, writ ten notice as provided herein shall be given. The Design-
%
*( $$+
"%&
Page 35 of 121
Builder’s claim shall include an estimate of the cost and of the probable effect of delay on the
progress of the Work. In the case of continuing delay, only one claim is necessary.
5.11.5 In no event shall the Design-Builder be entitled to an increase in the GMP or
the Design-Build Fee as a result of either an Excusable or Non-Excusable Delay; provided,
however, that to the extent that a delay is: (i) an Excusable Delay; (ii) of unreasonable duration;
(iii) caused solely by the Department; and (iv) no t concurrent with any other delay, then the
Design-Builder shall be entitled to receive it s actual costs, including all direct and indirect
costs, bonds and insurances resulting from such extended duration. It is understood that the
Design-Builder shall not be entitled to any profit or home office overhead, including, but not
limited to, an increase in the Design-Build Fe e, on any amounts to which the Design-Builder
may be entitled pursuant to the preceding sentence.
5.12 Site Safety and Clean-Up.
5.12.1 The Design-Builder will be required to provide a safe and efficient site, with
controlled access. As part of this obligation, the Design-Builder shall be responsible for
initiating, maintaining and supervising all safety precautions and programs in connection with
the Project, and shall comply with the requirements set forth in Article 16, Section F of the
Standard Contract Provisions (Construction Contracts).
5.12.2 Safety Plan. Prior to the start of construction activities, the Design-Builder shall
prepare a safety plan for the construction phase conforming to OSHA 29 CFR 1926 (such plan,
the “Safety Plan”). Pursuant to OSHA 29 CFR 1926, the Design-Builder shall provide all
employees with the necessary Pe rsonal Protective Equipment ( “PPE”) to comply with all
COVID-19 regulations and shall additionally requ ire anyone on site to comply with any PPE
requirements. This Safety Plan developed by th e Design-Builder shall describe the proposed
separation and the specific nat ure of the safety measures to be taken including fences and
barriers that will be used as well as the site security details. The Safety Plan will be submitted
to the Department and Client Agency for theirreview and approval prior to the commencement
of construction. Once the Safety Plan has be en approved, the Design-Builder shall comply
with it at all times during construction. The Design-Builder shall be required to revise the
Safety Plan as may be requested by the Department or Client Agency at any time, including,
but not limited to, as necessary to address any new national or local COVID-19 regulations,
recommendations, or restrictions. The cost of re vising and complying with the plan shall not
entitle the Design-Builder to an increase in th e GMP. In the event the Design-Builder fails to
provide the Safety Plan, the Design-Builder will not be permitt ed to commence the
Construction Phase until the Safety Plan is submitted and in no event shall any resulting delay
constitute an Excusable Delay. Additionally, the Design-Builder shall comply with the
requirements of Article 27, Section A of the Standard Contract Provisions (Construction
Contracts).
5.12.3 Safety Barriers/Fences. As part of its responsibility for Project safety, the
Design-Builder shall install such fences and barriers as may be necessary to separate the
construction areas of the site from those areas that are then being used by Client Agency for
educational purposes. The Design-Builder shal l describe in the Sa fety Plan the proposed
separation and the specific nature of the fences and barriers that will be used.
5.12.4 Site Security. The Design-Builder shall be re sponsible for site security and
shall be required to provide such watchmen as are necessary to protect the site from unwanted
intrusion. Site Security shall be included in the Design-Builder’s General Conditions Cost.
%
*( $$+
"%&
Page 36 of 121
5.12.5 Exculpation. The right of the Department and Client Agency to comment on
the Safety Plan and the nature and location of the required fences and barriers shall in no way
absolve the Design-Builder from the obligation to maintain a safe site.
5.12.6 Site Cleanliness. During the Agreement performance and/or as directed by the
Department’sProgram Manager, as the installation is completed, the Design-Builder shall
ensure that the site is clear of all extraneous materials, rubbish, or debris.
5.13 Workhours, Site Office, and Coordi nation with Client Agency and
Community
5.13.1 Workhours. The Design-Builder shall comply with the Noise Ordinance and
neither it nor its subcontractors shall undertake work on the Project site other than at the times
and sound level permitted by the Noise Ordinance.
5.13.2 Site Office. Throughout the Work, the Design-Builder shall provide and
maintain a fully equipped construction office on the Project site. The Design-Builder shall, at
all times, provide and maintain a fully equipped c onstruction office for DGS staff assigned to
the Project. The costs for these Site Office(s) shall be included as part of the Design Builder's
general conditions cost.
5.13.3 Parking. The Design-Builder shall organize its work in such a manner so as to
minimize the impact of its operations on the surrounding community. To the extent that the
number of workers on the site is likely to have an adverse impact on neighborhood parking,
the Design-Builder shall develop a parking plan for those individuals working on the site that
is reasonably acceptable to the Department.
5.13.4 Wheel Washing Stations. The Design-Builder shall provide wheel washing
stations on site so as to prevent the accumu lation of dirt and other refuse on the streets
surrounding the Project site.
5.13.5 Outreach Plan. The Design-Builder shall keep the Department informed of
the construction activities and their potential im pact on the community and shall develop a
community outreach plan (the “Outreach Plan”). The Design -Builder shall submit the
Outreach Plan to the Department prior to it s implementation which shall be subject to the
Department’s review and approval.
5.13.6 Supervision. Throughout the Work, the construc tion office shall be managed
by personnel competent to oversee the Work at all times while construction is underway. Such
personnel shall maintain full-time, on-site construction supervision and provide daily
inspections, quality control, monitoring, coordi nation of various trades, record drawings, and
daily work log.
5.13.7 Punchlist. Promptly before Substantial Completion, the Design-Builder shall
cause the Design-Builder’s Architect to develop a punchlist. Once the punchlist is prepared,
the Design-Builder shall inspect the work along with representatives from the Department. The
punchlist shall be revised to reflect additi onal work items that are discovered during such
inspection. The Design-Builder shall correct all punchlist items no later than sixty (60) days
after Substantial Completion is achieved.
5.13.8 Warranties & Manuals. Prior to Substantial Co mpletion and no later than
fifteen (15) days following Substantial Comple tion, the Design-Builder shall prepare and
%
*( $$+
"%&
Page 37 of 121
submit the following Project documentation no later than thirty (30) days following Substantial
Completion,: (i) a complete set of its Project files; and (ii) a set of record drawings.
5.14 Protection of Existing Elements.
The Design-Builder shall protect all existing fe atures, public utilities, and other existing
structures during construction. The Design-Build er shall protect existing, site improvements,
trees and shrubs from damage during construction. Protection extends to the root systems of
existing vegetation. The Design-Builder shall not store materials or equipment, or drive
machinery, within drip line of existing trees and shrubs.
5.15 Sediment and Erosion Control.
The Design-Builder shall be responsible for inst alling sediment and erosion control measures
in accordance with DOEE guidelines, inclusive of, but not limited to: silt fencing, inlet
protection, stabilized construction entrances, and other control measures. The Design-Builder
shall be responsible for scheduling and coordination of DOEE Kick-Off Meeting.
5.16 Quality Control.
5.16.1 General Obligation. The Design-Builder shall be responsible for all activities
necessary to manage, control, and document wor k to ensure compliance with Contract
Documents. The Design- Builder’s responsibility includes ensuring adequate quality control
services are provided by the Design- Builder’s employees and its subcontractors at all levels
from concept to completion including site assessment-investigations/discovery, schematic
design development, pre-construction, construction a nd closeout phases. All contract
related work activities and their implementation procedures described within this quality
control plan shall also address safety, measures to ensure regulatory permit & code compliance,
submittal management, change document processing/incorporation, reporting, and all other
functions necessary to achieve highest levels of quality during design and construction efforts.
The Design-Builder’s quality control plan (the “Quality Control Plan”) submittal must include
statements affirming compliance with DGS Quality Control Program Requirements.
5.16.2 Quality Control Plan. Within thirty (30) days after the Design Development
Documents are approved, the Design-Builder shall develop a Quality Control Plan for the
Project. A draft of the Quality Control Plan shall be submitted to the Department and shall be
subject to the Department’s review and approval. This draft shall comply with the guidelines
and include at a minimum, the necessary comp onents for Quality Control Plan development
described within the Department’s Quality Control Master Program (Exhibit T). The Quality
Control Plan shall be tailored to the specific products/type of construction activities
contemplated in the Design Development Documents, and in general, shall include a table
of contents, quality control team organization and hierarchical arrangement detailing ongoing,
regular interaction/coordination between design & construction teams, duties/responsibilities
of quality control personnel, submittal procedures, schedule of specified inspection & testing
requirements, deficiency correction procedur es, issues & conflicts resolution, RFI
documentation process, change management, as -built record keeping of contract documents
and a listing of customized quality control procedures that will be required to ensure key
elements of the Work are executed in conformance with design documents.
The Quality Control Plan must clearly describe quality control measures such as using DGS
QC Program’s 3 phase checklists recommended to be undertaken by the DesignBuilder's team.
Prior to construction phase commencing, the De sign-Builder must advise the Department
regarding the status of their drawing & specification documents, from a percentage completion
%
*( $$+
"%&
Page 38 of 121
standpoint. For that matter, the Design Phase quali ty control effort shall provide metrics to
gauge whether the design documents – drawings and specifications – are as complete as
possible, prior to contractor’s groundbre aking. DGS QC Program Design Phase Checklists
include metrics to perform this evaluation of design documents. Similarly, the Quality Control
Plan must describe in detail the quality control mechanisms proposed to be implemented by
the Design-Builder for ensuring adherence with design documents by way of minimal rework
and maintaining the highest standards of construc tion. The Quality Control Plan must detail
description of any 3rd parties suggested to be hired by the Department such as material testing.
5.16.3 Implementation. During the Construction Phase, the Design-Builder shall
perform regular quality control inspections a nd create reports using the 3 Phase inspection
checklists included with DGS Quality Control Master Program Manuals based on such
inspections pursuant to the Quality Control Plan. These quality control reports with the 3 Phase
Checklists shall be provided to the Department electronically on a monthly basis. The Design-
Builder shall incorporate a quality control section in the progress meetings to discuss
outstanding deficiencies, testing/inspections, and upcoming work. The monthly report shall
include a detailed summary of the steps that are being employed to provide quality construction
and workmanship. The monthly report should specifically address issues raised during the
month and outline the steps that are being used to address such issues. The following are the
components that must at a minimum be included within the monthly Quality Control report
submitted to DGS. All components must be updated regularly, and current versions included
with monthly submissions to the Department.
1. A written narrative of Quality Control activities for the month supported by
embedded, cross referenced photos.
2. CPM updates and analysis reflecting statu s of critical submittals affecting work
progress, elaborated further within the descriptive work narrative accompanying CPM
baseline schedule and subsequent, regular updates’ submissions to the Department.
3. Deficiency tracking log.
4. Test & Inspections log recording all related activities for the month and cumulative
for the Project. This must correspond a nd cross reference the Project’s testing &
inspections schedule described above within Section 2.8.2.
5. Submittal Schedule detailing status of all Project submittals.
5.17 Acceleration.
Subject to the terms of this Section, the Depa rtment shall have the right to direct the
Design-Builder to accelerate the Work if, in the reasonable judgment of Department: (i) the
Design-Builder fails to supply a sufficiency of workers or to deliver the materials or equipment
with such promptness as to prevent the delay in the progress of the Work; or (ii) the progress
of the Work otherwise materially falls behind the projections contained in the then currently
approved Project Schedule. In the event that the Department or its Program Manager determine
that either of the events specified in the preceding sentence have occurred, the Department shall
provide the Design-Builder with written notice of such event and the Design-Builder shall be
required to provi de the Department with a schedule re covery plan (“Recovery Plan”) that is
reasonably designed to address the concerns raised in such notice within three (3) days after
receipt of such notice. If the Department and the Design-Builder are unable to agree on the
terms of the Recovery Plan within five (5) days after the issuance of the notice (i.e. within forty
eight (48) hours after the receipt of the proposed Recovery Plan), the Department shall have
%
*( $$+
"%&
Page 39 of 121
the right to direct such acceleration as the Department, in its reasonable judgment, deems
necessary. Provided Department complies with the notice provisions of this Section, the cost
of any acceleration directed under this Section shall not justify an adjustment to the GMP or
the Substantial Completion Date.
Given the nature of the Projec t and the fact that there is a fixed date upon which the
Client Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that
this provision is a material inducement upon which the Department has relied in entering into
this Agreement; and (ii) represents and warran ts that it has included sufficient funding in the
GMP in order to comply with the requirements of this Section.
5.18 Corrective Action Plan.
Subject to the terms of this Section, the De partment shall have the right direct the
Design-Builder to revise the provisions of the Quality Control Plan if, in the reasonable
judgment of the Department, the craftsmanship of the Work being installed fails to comply
with generally applicable industry standards, requ irements set forth in the specifications that
are reasonably related to the quality of craftsmanship quality, or any provisions set forth in this
Agreement (each a “Quality Control Event”). In the event that the Department or its Program
Manager determine that a Quality Control Even t has occurred, the Department shall provide
the Design-Builder with written notice of the occurrence of such Quality Control Event and the
Design-Builder shall be required to provide the Department with a corrective action plan that
is reasonably designed to address the concerns raised in such notice within three (3) days after
receipt of such notice (each inst ance, a “Corrective Action Plan”). If the Department and the
Design-Builder are unable to agree on the terms of the Corrective Action Plan within five (5)
days after the issuance of the notice (i.e. with in forty eight (48) hours after the receipt of the
proposed corrective action plan), the Department shall have the right to direct such corrective
action measures as the Department, in its reasonable judgment, deems necessary. Such
directive may include adjustments to the procedural provisions set forth in the Quality Control
Plan and/or may impose additional requireme nts on the manner in which Work is being
performed. Provided the Department complies w ith the notice provisions of this Section, the
cost of any such corrective action directed under this Section shall not justify an adjustment to
the GMP or the Substantial Completion Date.
5.19
a. Use of Department’s Electronic Project Management Information System
(ProjectTeam). The Design-Builder shall utilize the Department’s ProjectTeam
system to create, manage and/or submit any and all documentation required to
be provided by the vendor during the course of the Project, including, but not
limited to: (i) requests for information; ( ii) submittals; (iii) potential change
orders; (iv) meeting minutes; (v) penc il copy invoices; (vi) drawings and
specifications;(vii) punchlist; and (viii) other documents as may be designated
by the Department.
Electronic storage and transmission of information via ProjectTeam system
shall be compliant with the provisions of the document security section of these
general requirements.
b. Invoice Submittal. The Design-Builder shall create and submit payment
requests in an electronic format through the DC Vendor Portal,
https://vendorportal.dc.gov. The Design-Builder shall submit proper invoices on
a monthly basis. To constitute a proper invoice, the Design-Builder shall enter
%
*( $$+
"%&
Page 40 of 121
all required information into the Portal after selecting the applicable purchase
order number which is listed on the Design-Builder’s profile.
5.20 Conformance with Laws.
It shall be the responsibility of the Design -Builder to perform under the Agreement in
conformance with the Department’s Procurement Regulations and all applicable statutes, laws,
codes, ordinances, regulations, rules, requi rements, orders, and policies of governmental
bodies, including, without limitation, the U.S. Government and the District of Columbia
government; and it is the sole responsibility of the Design-Builder to determine the
Procurement Regulations, statutes, laws, codes, ordinances, regulations, rules, requirements
and orders that apply and their effect on the Design- Builder’s obligations thereunder.. Given
the requirements for the Project, the Departme nt may, at its sole discretion, (i) apply for
variance to the requirement of adhering to the Green Buildi ng Act on the Project and (ii)
consider deferring the scope of work associated with storm water management to a later phase
of the Project.
5.21 Licensing, Accreditatio n and Registration
The Design-Builder and all of its subcontractors and subconsultants (regardless of tier)
shall comply with all applicable District of Columbia, state, and federal licensing,
accreditation, and registration requirements and standards necessary for the performance of the
Agreement. Without limiting the generality of the foregoing, all drawings shall be signed and
sealed by a professional architect or engineer licensed in the District of Columbia.
5.22 Construction Phase Deliverables.
The deliverables set forth in Exhibit C are required during the Construction Phase.
5.23 Close-Out Deliverables.
The deliverables set forth in Exhibit C are required during the Project’s Close-Out and
prior to Final Payment, as set forth in Section 10.11 and below:
a) A complete set of the Design- Builder’s Project files.
b) A complete set of product manuals (O &M), training videos, warranties, etc.
c) As built record drawings.
d) Attic stock and schedule.
e) Equipment schedule.
f) Proposed schedule of maintenance.
g) Environmental, health & safety documents.
h) LEED – Preliminary Construction Review.
i) All applicable inspection certificates/permits (boiler, elevator, emergency
evacuation plans, health inspection, etc.).
j) Final Maintenance and Operations Plan.
k) All other deliverables as required in Exhibit S, DGS Close Out Manual
%
*( $$+
"%&
Page 41 of 121
ARTICLE 6 - DESIGNATED REPRESENTATIVES
6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit I as its representative
with express authority to bind the Department with respect to all matters requiring the
Department’s approval or authorization. Subject to the limitations on their authority specified
in Exhibit I, these representative(s) shall have the exclusive authority to make decisions on
behalf of the Department concerning estimate s and schedules, const ruction budgets, changes
in the Work, and execution of Cha nge Orders, Contract Modifi cations or Change Directives,
and shall render such decisions promptly and furnish information expeditiously, so as to avoid
unreasonable delay in the services or performance of the Work of the Design-Builder. In order
for the Department to effectively manage the P roject and assure that the Design-Builder does
not receive conflicting instructions regarding the Work, the Design-Builder shall promptly
notify the Department’s representative upon receiving any instructions or other communication
in connection with the Design-Builder’s Work from any employee of the Department or other
purported agent of the Department other than the Department’s designated representative.
6.2 Design-Builder’s Designated Representative.
The Design-Builder designates the individual(s) identified in Exhibit H as its
representative with express authority to bind the Design-Builder with respect to all matters
requiring the Design-Builder’s approval or authorization. In addition, the Department retains
the right to approve candidates to serve as on-site personnel in accordance with each
candidate’s experience with similar projects and local marketplace conditions. Once approved,
individuals cannot be changed without the Department’s prior approval. During the entire term
of the Agreement, it is agreed that the Design- Builder’s designated representative will devote
his or her time exclusively to the Project, unless the Department consents to a reduction in time.
All services provided by the Design-Builder shall be performed in accordance with the highest
professional standards recognized and adhered to by design-builders that build first-class state-
of-the-art buildings and projects that are similar to the Project in large urban areas.
%
*( $$+
"%&
Page 42 of 121
7 ARTICLE 7 - COMPENSATION AND PAYMENTS FOR DESIGN &
PRECONSTRUCTION PHASE SERVICES
7.1 Compensation
7.1.1 The Department shall compensate and mak e payments to the Design-Builder
for Design & Preconstruction Services in ac cordance with Article 7 and Article 10. For
Preconstruction Services, the Design-Builder’s compensation shall be as set forth in the Project
Information Section of this Agreemen t (the “Preconstruction Fee”). The Preconstruction Fee
shall be the Design- Builder’s sole compensation for Pr econstruction Phase Services. The
Preconstruction Fee shall include, but not be limited to, amounts necessary to compensate the
Design-Builder for:
x Profit;
x Home Office Overhead;
x Fringe Benefits associated with staff costs;
x Payroll taxes associated with staff costs;
x Staff costs associated with obtaining permits and approvals
during the Design & Preconstruction Phase;
x Out-of-house consultants;
x Travel, Living and Relocation expenses;
x Job vehicles;
x Office equipment including but not limited to:
o Computer hardware and software;
o Fax machines; and
o Copying machines;
x Office supplies;
x Telephone; and
x Local delivery and overnight delivery costs.
7.1.2 The Department shall compensate a nd make payments to the Design-
Builder for design services in accordance with this Article 7 and Article 10. For design
services, the Design-Builder’s compensation shall not exceed the amount set forth in the
Project Information Section of this Agreement (the “Design Fee”).
7.2 Payments
7.2.1 Payments for Design & Preconstruction Phase Services shall be made
monthly over the anticipated duration of the Design & Preconstruction Phase following
presentation and acceptance of the Design-Builder’s invoice and shall be in proportion
to services performed. In no event, however, will the aggregate of the Design-Builder’s
monthly invoices for Design & Precons truction Phase Services exceed the
Preconstruction Fee plus the Design Fee.
7.2.2 Payments are due and payable in accordance with Article 10 of this
Agreement. Amounts unpaid after the date of which payments due shall bear interest in
accordance with the Quick Payment Act.
%
*( $$+
"%&
Page 43 of 121
ARTICLE 8 - COMPENSATION FOR CONSTRUCTION PHASE SERVICES
8.1 Compensation.
The Department shall compensate and make payments to the Design-Builder for
Construction Phase Services in accordance w ith this Article 8 and Article 10. For the
Construction Phase Services, the Design-Bui lder’s total compensation shall be as set forth in
the Project Information Section of this Agreement (the “Design-Build Fee”). The Design-
Builder acknowledges and agrees that the percentage of the total amount of the Design-Build
Fee set forth in the Project Information Section of this Agreement is at risk (the“At Risk
Portion”), and the Design-Builder shall only be entitled to the At Risk Portion as set forth
below. Unless and until the Design- Builder’sentitlement to any subset of the At Risk Portion
is determined by the Department, the Design-Builder shall only be entitled to bill for the
portion of the Design-Build Fee that is not at risk (the“Base Design-Build Fee”). The
Design-Build Fee shall be billed in accordance with Article 10, to be paid in equal monthly
installments over the anticipated duration of the Construction Phase. To the extent that the
duration of the Agreement is extended, the then remaining amounts of the Design-Build Fee
will be re-allocated such that the then existing portion of the Design-Build Fee shall be evenly
spread over the then remaining duration of the Construction Phase.
8.1.1 Award Fee Pool. The At Risk Portion shall be used to establish and fund
an award fee pool (“the Award Fee Pool”). Within sixty (60) days after
approval and fully execution of this Agreement, the Department shall appoint
a committee that will determine entitlement to those portions of the Award
Fee Pool so designated below (such committee, the“Award Fee Evaluation
Committee”). The Award Fee Evaluation Committee will consist of: (i) the
Department’s Deputy Director for Capital Construction; (ii) a senior
representative from Client Agency; and (iii) a senior member of the Program
Management team that is not involved in the day-to-day management of this
Project that is acceptable to both Parties.
8.1.2 The Design-Builder may earn the At Risk Portion of the Design Build Fee in
accordance with Exhibit Q.
8.2 Lump Sum General Conditions Cost.
The Contractor shall propose a lump sum amount for the General Conditions Cost, and
this lump sum amount shall be the extent of what the Design-Builder is entitled to recover for
the cost of General Conditions (such cost, th e “Lump Sum General Conditions Cost”). The
Lum Sum General Conditions Cost shall not be increased or decreased as a result of Change
Orders or Change Directives unless such changes: (i) extend the duration of the Project beyond
the time identified in Section 1.5; and (ii) the Design-Builder can demonstrate to the
satisfaction of the Department that such additional General Conditions costs are necessary and
not due to any fault of the Design-Builder, its subcontractors, materialmen, consultants or
anyone making claims thereunder. To the extent the Design-Builder incurs General Conditions
Costs in excess of the Lump Sum General Conditi ons Cost, the Design-Builder shall not be
entitled to reimbursement for such amounts unl ess the Department authorizes, by written
Contract Modification, an increase to the Lump Sum General Conditions Cost. Nonetheless, in
such an event, if the Design-Builder exce eds the Lump Sum General Conditions Cost, the
Design-Builder shall continue to be required to adequately staff the Project
%
*( $$+
"%&
Page 44 of 121
8.3 Project Budget.
Unless and until the GMP Amendment is executed and approved by the Council for the
District of Columbia, this Agreement shall have an initial not-to-exceed amount as set forth in
the Project Information section of this Agreement (the “Initial NTE”). In no event shall the
Design-Builder be entitled to recover more than the Initial NTE unless the Design-Builder is
authorized to exceed the Initial NTE by the Depar tment in advance and in writing. Prior to
expending or committing any portion of the Initial NTE, the Design-Builder shall obtain the
Department’s written approval of such expenditure or commitment, as well as a determination
as to whether the work will qualify as a “c apital” expense under the Department’s financial
guidelines to the extent capital money is to be expended. In making such a request, the Design-
Builder shall submit an itemi zed breakdown of the work that the Design-Builder seeks to
release using funds from the Initial NTE as well as the associated costs of such work.
8.4 Project Budget.
The Department has established a budget for the Project as set forth in the Information
Section of this Agreement (such budget, the “Project Budget”). Such Project Budget includes
any and all amounts which may be due to the Design-Builder pursuant to this Agreement, and
in no event shall the Design-Builder be entitled to recover more than the Project Budget
unless the Design-Builder is authorized to exceed the Project Budget by the Department in
advance and in writing. The Design-Builder shall inform the Department's Contracting
Officer within fifteen (15) calendar days of when the Design-Builder encounters any foreseen
or unforeseen Project related events, which might reasonably affect: (i) existing Project
Budget; or (ii) DC council-authorized appropriations.
8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Design-Builder to develop a GMP that meets the
programmatic requirements set forth in Exhibit A by the Client Agency and the Project Budget
as set forth herein ( i.e. designed to budget), to allow for S ubstantial Completion of the Work
to be achieved no later than the Substantial Completion Date. The Design-Builder shall be
entitled to an adjustment to the Design-Build Fee at the time the GMP is established to the
extent, and only to the extent, that: (i) the Department makes additions to the scope that, when
measured relative to the program, cause the GMP to exceed the Design- Builder’s original
concept estimate by more than five percent (5%); or (ii) the Department makes additions to the
scope provided for herein which (other than for punchlist or warranty work) which requires the
Design-Builder’s services at the Project to exten d 30 days or more beyond the Substantial
Completion Date. With regard to Change Orde rs issued after the GMP is established, the
Design-Builder shall be entitled to an increase in the Design-Build Fee to the extent, and only
to the extent, that: (i) the Department has added a new programmatic element to the Project;
or (ii) the Department made additions to the GMP scope which (other than punchlist or
warranty work) require the Design-Builder’s services at the Project to extend 30 days or more
beyond the Substantial Completion Date.
8.6 Reserved
8.7 Direct Cost of Work
“Direct Cost of the Work” shall mean labor, material and other costs reasonably and
necessarily incurred in the proper performanc e of the Work as approved by the Department
and shall include, but not be limited to:
8.7.1 Labor . Payment will be made for direct labor cost plus indirect labor
cost such as insurance, taxes, fringe benef its and welfare provided such costs are considered
%
*( $$+
"%&
Page 45 of 121
reasonable. Indirect costs shall be itemized and verified by receipted invoices. If verification is
not possible, up to five percent (5%) of direct labor costs may be allowed.
8.7.2 Rented Equipment . Payment for required equipment rented from an
outside company that is neither an affiliate of, nor a subsidiary of, the Design-Builder will be
based on receipted invoices which shall not exce ed rates given in the current edition of the
Rental Rate Blue Book for Construction Equipment published online by Data Quest. If actual
rental rates exceed manual rates, written justification shall be furnished to the Contracting
Officer for consideration. No additional allo wance will be made for overhead and profit. The
Design-Builder shall submit written certificati on to the Contracting Officer that any required
rented equipment is neither owned by nor rented from the Design-Builder or an affiliate of or
subsidiary of the Design-Builder.
8.7.3 Design- Builder’s Equipment. Payment for required equipment owned
by the Design-Builder or an affiliate of the De sign-Builder will be based solely on an hourly
rate derived by dividing the current appropria te monthly rate by 176 hours. No payment will
be made under any circumstances for repair costs, freight and transportation charges, fuel,
lubricants, insurance, any other costs and e xpenses, or overhead and profit. Payment for such
equipment made idle by delays attributable to the Government will be based on one-half the
derived hourly rate under this subsection.
8.7.4 Materials. Incorporated and unincorporated materials as permitted
under Section 9.1.
8.7.5 Direct Cost of the Work does not, however, include home office
overhead, field supervision, general conditions or profit of either the Subcontractor or the
Design-Builder. No personnel above the level of a working foreman shall be considered a
Direct Cost of the Work.
%
*( $$+
"%&
Page 46 of 121
ARTICLE 9 - COST OF THE WORK FOR CONSTRUCTION PHASE
9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design -
Builder in the proper performance of the Work and shall include only the following:
9.1.1 Payments made by the Design-Builder to Subcontractors and suppliers,
other than design subconsultants, but only in accordance with the
subcontracts and supply agreements;
9.1.2 Payments made by the Design-Builder to its design consultants and
subconsultants; provided, however, that the Design-Builder shall not be
reimbursed for the costs of design services in excess of the Design Fee;
9.1.3 All amounts due to the Design-Builder under the terms of the Department's
written authorization for the Design-B uilder to perform any portion of the
Work as Self-Performed Work. If authorization for the Design-Builder to
engage in Self-Performed Work is not on a fixed-price basis, then, as to that
Work, the following costs shall be within the Cost of the Work:
(a) Labor. Properly documented wages actually paid to Project foremen,
construction workers, and other personnel in the direct employ of the Design-Builder, while
engaged in approved Self-Performed Work, together with contributions, assessments, payroll
taxes, or fringe benefits required by the laws or applicable collective bargaining agreements.
(b) Incorporated Materials. The cost, net of trade discounts, of all materials,
products, supplies and equipment incorporate d into the Self-Performed Work, including,
without limitation, costs of transportation and handling.
(c) Unincorporated Materials. The cost of materials, products, supplies and
equipment not actually installed or incorporated into the Self-Performed Work, but required to
provide a reasonable allowance for waste or spoilage, subject to the Design- Builder’s
agreement to turn unused excess materials over to the Department at the completion of the
Project or, at the Department’s option, to sell the material and pay the proceeds to the
Department or give the Department a credit in the amount of the proceeds against the Cost of
the Work.
9.1.4 Royalty and license fees paid for use of a design, process or product, if
its use is required by this Agreement or has been approved in advance by the
Department;
9.1.5 Fees for obtaining all required approvals or permits associated with any
utilities abandonment, and utility reloca tion (including utility connection fees),
including any and all building and/or trade permits fees;
9.1.6 All performance and payment bonds a nd general liability insurance.
The Department may, in its sole discretion, allow the Design-Builder to recover the costs
of subcontractor default insurance at a mutual ly agreed upon rate in lieu of trade level
bonds, provided that such insurance be approved by the Department in advance and after
being presented with a cost-benefit analysis of such use;
%
*( $$+
"%&
Page 47 of 121
9.1.7 All fees and other costs necessarily incurred to carry out testing and
inspection required by the Agreement or appl icable laws, or otherwise to maintain
proper quality assurance. The costs the Design-Builder incurs to schedule and
coordinate any additional testing and inspections the Department may decide to conduct
itself shall be within Cost of the Work unl ess the additional testing establishes that the
Work tested was defective or otherwise failed to satisfy requirements set forth in the
Agreement, in which case the Design-Builder shall pay the costs, without
reimbursement;
9.1.8 All bonds to jurisdictional agencies (utilities, storm water management,
land disturbance, and grading);
9.1.9 The Cost of General Conditions, subject however to the Maximum Cost
of General Conditions; and
9.1.10 Costs of repairing or correcting damaged or nonconforming Work
executed by the Design- Builder’s Architect, or Design- Builder’s other consultants,
Subcontractors or suppliers, provided that su ch damaged or nonconforming Work was
not caused by negligence or failure to fulfi ll a specific responsibility of the Design-
Builder, and only to the extent that the cost of repair or correction is not recoverable by
the Design-Builder from insurance, sure ties, Subcontractors or suppliers. It is
understood that the cost of repairing, corr ecting damaged or nonconforming Work that
was Self-Performed shall not be reimbursable in any event.
9.2 Lump Sum Cost of General Conditions.
Items included in the Cost of General Condi tions are all items necessary to perform
Construction Phase Services described herein including:
a) Cost of construction staff. Only staf f stationed in the field are reimbursable;
b) Fringe Benefits associated with construction staff;
c) Payroll taxes and payroll insurance associated with construction staff;
d) Staff costs associated with obtaining permits and approvals;
e) Out-of-house consultants, including permit expeditors;
f) The field office for the Design-Builder including but not limited to: (i)
trailer purchase and/or rent; (ii) field office installation, relocation, and
removal; (iii) utility connections and charges during the Construction
Phase; (iv) furniture; (v) Field offices for the Office and Program Manager;
and (vi) office supplies;
g) Parking costs for the construction staff;
h) Salting sidewalks and shoveling snow on sidewalks that surround the site;
i) The field office for the Design-Build er including but not limited to: (i)
computer hardware and software; (ii) fax machines; (iii) copying machines;
(iv) telephone installation, system, and use charges; and (v) job radios;
j) Local delivery and overnight delivery costs;
k) First aid facility;
l) Progress photos
m) Printing cost for drawings, bid packages, etc.;
n) BIM Cost (software, seats, hardware);
o) Travel, Living, and Relocation expenses;
p) Job vehicles; and
q) Field computer network.
%
*( $$+
"%&
Page 48 of 121
9.3 Non-Reimbursable Costs.
All costs not specifically listed in Section 9.1 as being within the Cost of the Work are
excluded from the Cost of the Work and shall not be reimbursable. In particular, but without
limitation, the Cost of the Work does not include any of the following:
a) Any personnel or labor costs other than those provided for in Section 9.2. (a) or
Section 9.1.3 (a).
b) Fees for any permits or licenses the Desi gn-Builder requires to conduct its general
business operations.
c) Capital expenses and interest on capital employed for the Work.
d) The cost of home or regional offices, it is understood that compensation for such
costs is included in the design-build fee.
e) Sales or use taxes unless the Design-B uilder establishes that applicable law
required payment of such taxes.
f) Costs due to the errors or omissions of th e Design-Builder or its subcontractors or
suppliers at all tiers, negligent or otherwise.
g) Costs dues to breach of Contract by the Design-Builder or its subcontractors or
material suppliers at all tiers, including, without limitation, costs arising from
defective or damaged work or its correction, disposal of materials or equipment
erroneously supplied, and repairs to property damaged by the Design-Builder or
its subcontractors or material suppliers at all tiers.
h) Any costs incurred in performing work of any kind before Preconstruction NTP,
unless specifically authorized by the Department in advance and in writing.
i) Direct or indirect costs of any ki nd, except those expressly included in Section 9.1.
9.4 Discounts, Rebates and Refunds.
9.4.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to
the Department if: (i) before making such payment(s), the Design-Builder included them in
an Application for Payment and received payment therefor from the Department; or (ii) the
Department has deposited funds with the Design-Builder with which to make such
payment(s). All other cash discounts shall accrue to the Design-Builder. Trade discounts,
rebates, refunds and amounts received from sales of surplus materials and equipment shall
accrue to the Department, and the Design-Builder shall make provisions so that such amounts
can be secured.
9.4.2 Amounts that accrue to the Department in accordance with the provisions of
Section 9.4.1 shall be credited to the Department as a deduction from the Cost of the Work.
9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project w ill qualify as tax-exempt under applicable
laws. Upon request, the Depar tment will provide the Design-Builder with the necessary
information relating to the tax exemption. In the event any savings are attributable to the tax-
exempt status of the Project, the Design-Builder shall not be entitled to share in such savings.
9.6 Accounting Records.
The Design-Builder shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management under the Agreement. The Design-
Builder’s accounting and control systems sh all be satisfactory to the Department. The
Department, its representatives, and the Departme nt’s accountants shall be afforded access to
%
*( $$+
"%&
Page 49 of 121
the Design- Builder’s records, books, correspondence, instruction, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and
the Design-Builder shall preserve such Projec t documentation relating to the Project for a
period of three years after final payment, or for such longer period as may be required by law.
9.7 Excluded Cost Elements.
It is the Department’s intent that the Design-Builder provide a turnkey solution for the
implementation of the Project, and the Project the Project Budget set herein has been developed
based on such framework. The Design-Builder shall advance the Project in a manner consistent
with the Project Budget with the understanding th at only the following cost elements shall be
excluded from the Project Budget set forth herein:
1. 3 rd Party Material Testing and;
2. 3 rd Party Inspections.
%
*( $$+
"%&
Page 50 of 121
10 ARTICLE 10 - CONSTRUCTION PHASE PAYMENTS
10.1 Progress Payments.
The Design-Builder shall be compensated in a series of progress payments and a Final
Payment, for Work completed in accordance with the Agreement, and for which proper
Applications for Payment have been submit ted and approved. The amount of each progress
payment shall be as follows:
The Cost of Work completed to date
Plus Cost of Work for Pay Period x 60% Design-Build Fee
Current approved estimated
Cost of Work through Final Completion
Plus Any subset of the Design-Build Fee to which the Department has determined
the Design-Builder to be Entitled
Minus Applicable retainage
Minus Amounts previously paid by the Department
10.2 Retention.
The Department shall withhold from each progress payment an amount equal to ten
percent (10%) of the payment re lated to: (i) each Subcontract a nd supply agreement; (ii) the
Preconstruction Fee; (iii) Design-Build Fee; (iv) General Conditions Costs; and (v) the Cost of
the Work related to each item of Self-Performed Work, until such time as fifty percent (50%)
of the then currently budgeted cost associated with each such item has been invoiced, at which
point the Department may cease retaining against such item; provided, however, that retention
shall not be held on the costs of bonds, insu rances, and those elements of the general
requirements which consist of a single, insolated effort such as dumpster disposal and safety
carpentry. The Department at its sole and absolute discretion may elect to increase the retention
on any trade Subcontractor up to ten percent (10% ), in the event the Department determines
that the situation so warrants. The Department also in its sole and absolute discretion, may
elect to reduce the retainage relating to a particular trade Subcontractor, or the Cost of the Work
related to a specific item of Self-Performed Work to zero upon: (a) satisfactory completion of
such Work; (b) submission of all required warranties, certifications, and operating or
maintenance instructions with respect to that Work; and (c) execution of appropriate waivers
of lien and releases of claims. However, in no event shall the total retainage held by the
Department be reduced to an amount that is less than two and one-half percent (2.5%) of the
GMP.
10.3 Stored Materials.
The Department shall not be required to pay for materials stored at the site or stored at
other locations absent prior written authorization to do so, which authorization may be withheld
at the Department's sole discretion. If the De partment expressly agrees to pay for materials
stored at the site but not yet incorporated into the Work, the Application for Payment may also
include a request for payment of the cost of such materials, if the materials have been delivered
%
*( $$+
"%&
Page 51 of 121
to the site, and suitably stored. Such requests shall be documented by appropriate invoices and
bills of sale. Payment for stored materials shall be conditioned also on the Design- Builder’s
representation that it has inspected the material and found it to be free from defect and
otherwise in conformity with this Agreement, and on satisfactory evidence that the materials
are insured under the builder’s risk policy. Further, if the Design -Builder requests the
Department to allow payments for storage of materials offsite, the Design-Builder shall be
required, inter alia, to agree to execution of proper Project documentation to afford the
Department a secured interest in the materials upon payment.
10.4 Design-Builder’s Certification.
Each Application for Payment shall be accompanied by the Design-Builder's signed
certification that:
10.4.1. all amounts paid to the Design-Builder on the previous Application for
Payment that were attributable to Subcontra ctor Work or to materials or equipment being
supplied by any supplier have been paid over to the appropriate Subcontractors and suppliers;
10.4.2. that all amounts currently sought for Subcontractor Work or supply of
materials or equipment are currently due and owing to the Subcontractors and material or
equipment suppliers;
10.4.3. that all Work, materials or equipment for which payment is sought is, to the
best of the Design-Builder's knowledge, free from defect and meets all of the requirements set
forth in the Agreement:
10.4.4. that the Design- Builder’s subcontracts incl ude the clauses required by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017).
10.4.5. The Design-Builder shall not include in an Application for Payment amounts
for Work for which the Design-Builder does not intend to pay.
10.5 Lien Waivers.
Each Application for Payment shall be acco mpanied by written waivers of the right to
file a mechanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design-Builder and all Subcontractors and mater ial suppliers at all tiers who have supplied
labor or material or both for which payment is requested, subject only to receipt of payment.
If the Department so requests, the Design-Builder shall also submit unconditional waivers of
liens for itself and all Subcontractors and material suppliers at all tiers with respect to Work or
materials or equipment for which payment has been previously made, and additional forms of
waiver acknowledging receipt of final payment under the Ag reement, and providing final
release of such liens.
10.6 Warranty of Title.
By submitting an Application for Payment, the Design-Builder warrants to the
Department that title to all Work for which pa yment is sought will pass to the Department,
without liens, claims, or other encumbrances, upon the receipt of payment by the Department.
The Department may require execution of appropriate Project Documents to confirm passage
of clear title. Passage of title shall not operate to pass the risk of loss with respect to the Work
in question. Risk of loss remains with the Design-Builder until Substantial Completion, unless
otherwise agreed by the Department, in writing.
%
*( $$+
"%&
Page 52 of 121
10.7 Submission.
On the twenty-fifth day of each month th e Design-Builder shall submit to the
Department (with a copy to the Program Ma nager) an Application for Payment, which
Application for Payment shall cover the enti re month during which the Application for
Payment is submitted. All amounts formally subm itted via Application for Payment and not
disputed by the Department shall be due and payable on the last day of the month following
submission or, if that is not a business day, on the following business day. If the Design-
Builder and Department are unable to agree on the amounts properly due and owing, the
Department shall pay in accordance with its good faith determination and the Design-Builder
may protest and pursue a claim as provided in th is Agreement and the Standard Contract
Provisions (Construction Contracts and Architectural and Engineering Services Contracts).
10.8 Right to Withhold Payments.
The Department will notify the Design-Builder within fifteen (15) days after receiving any
Application for Payment of any defect in the Application for Payment or the Design-Builder’s
performance which may result in the Department’s declining to pay all ora part of the requested
amount. The Department may withhold payment from the Design-Builder, in whole or part,
as appropriate, if:
10.8.1 the Work is defective and such defects have not been remedied; or
10.8.2 the Department has determined that the Design-Builder’s progress has fallen
behind the Project Schedule, and the Design-Builder fails, within ten (10) calendar days of the
Department’s written demand, to provide the De partment with a realistic and acceptable
Recovery Plan in accordance with Section 5.19; or
10.8.3 the Design-Builder's monthly schedule update reflects that the Design-
Builder has fallen behind the Project Schedule, and the Design-Builder fails to include, in the
same monthly report, a realistic and acceptable Recovery Plan in accordance with Section 5.19;
or
10.8.4 the Design-Builder has failed to provide reports in full compliance with
Section 5.5 of this Agreement; or
10.8.5 the Design-Builder has failed to pay Subcontractors or suppliers promptly or
has made false or inaccurate certifications that payments to Subcontractors or suppliers are due
or have been made; or
10.8.6 any mechanic’s lien has been filed against the Department, the site or
any portion thereof or interest therein, or any improvements on the site, even though the
Department has paid all undisputed amounts due to the Design-Builder, and the Design-
Builder, upon notice, has failed to remove the lien, by bonding it off or otherwise, within ten
(10) calendar days; or
10.8.7 the Department has reasonable evidence that the Work will not be
completed by the Substantial Completion Date, as required, that the unpaid balance of the
GMP would not be adequate to cover actual or liquidated damages arising from the anticipated
delay; or
10.8.8 the Department has reasonable evidence that the Work cannot be
completed for the unpaid balance of the GMP; or
%
*( $$+
"%&
Page 53 of 121
10.8.9 the Design-Builder is otherwise in substantial breach of this Agreement
including, without limitation, failures to comply with LSDBE Utilization requirements; or
10.8.10 the Application for Payment is incomplete, unsubstantiated and/or does
not contain sufficient documentation for evaluation by the Contracting Officer.
10.9 Payment Not Acceptance.
Payment of any progress payment or final paym ent shall not constitute acceptance of Work
that is defective or otherwise fails to conform to the Agreement, or a waiver of any rights or
remedies the Department may have with respect to defective or nonconforming Work.
10.10 Department Not Obligated to Others.
The Department shall have no obligation to pay or be responsible in any way for payments to
a consultant or subcontractor performing portions of the Work.
10.11 Final Payment.
A final payment (“Final Payment”) shall be made by the Department to the Design -Builder
when: (i) Final Completion has been achieved; (ii) all deliverables set forth in Section 5.14,
and Exhibit C have been delivered to and are accepted by the Department; (iii) the Design-
Builder provides the Department a complete se t of product manuals (O&M), training videos,
and warranties, as applicable; and (iv) a comp lete final Application for Payment and a final
accounting for the Cost of the Work have been submitted by the Design-Builder and reviewed
by the Department and, to the extent the Department determines appropriate, the Department’s
accountants. The Department shall make Final Pay ment not more than thirty (30) days after
the Department verifies the amount of the fi nal payment set forth in a complete final
Application for Payment.
10.11.1 The amount of the Final Payment shall be calculated as follows:
10.11.1.1 Take the sum of the Cost of the Work substantiated by the
Design-Builder’s final accounting and the Design -Build Fee; but not more than the
GMP.
10.11.1.2 Subtract amounts, if any, for which the Department withholds
pursuant to the Agreement.
10.11.1.3 Subtract the aggregate of previous payments made by the
Department. (If the aggregate of previous payments made by the Department exceeds
the amount due the Design-Builder, the Design-Builder shall promptly reimburse the
difference to the Department).
10.11.1.4 The Final Payment shall take into account any savings accruing
to the Department or the Design-Builder.
10.11.1.5 The Department will review and report in writing on the Design-
Builder’s final accounting within 30 days after delivery of the final accounting to the
Department by the Design- Builder. Based upon Depar tment’s determination of the
Cost of the Work, and provided the other conditions of Section 10.12.1 have been met,
the Department will, within fifteen (15) da ys after the Department’s determination,
notify the Design-Builder of any amount th at the Department will withhold and the
reasons therefor. The time periods stated in this Section 10.12.1.5 supersede those for
typical progress payments.
%
*( $$+
"%&
Page 54 of 121
10.11.1.6 If the Department determines that the Cost of the Work is other
than that claimed by the Design-Builder, th e Design-Builder shall be entitled to
proceed in accordance with Article 3 of the Standard Contract Provisions
(Construction Contracts). Pending a final resolution of the disputed amount, the
Department shall pay the Design-Builder the amount that the Department determines
to be appropriate.
%
*( $$+
"%&
Page 55 of 121
ARTICLE 11 - INSURANCE
11.1 GENERAL REQUIREMENTS
A. GENERAL REQUIREMENTS. The Contractor at its sole expense shall procure and
maintain, during the entire period of performance under this contract, the types of
insurance specified below. The Contractor shall submit a Certificate of Insurance to
the Contracting Officer (CO) giving eviden ce of the required coverage prior to
commencing performance under this contract. In no event shall any work be performed
until the required Certificates of Insurance signed by an authorized representative of
the insurer(s) have been provided to, and accepted by, the CO.
The Government of the District of Columbia shall be included in all policies,
where applicable and allowable by law, re quired hereunder to be maintained by the
Contractor and its subcontractors (except for workers’ compensation and professional
liability insurance) as an additional insureds for claims against The Government of the
District of Columbia relating to this c ontract, with the understanding that any
affirmative obligation imposed upon the in sured Contractor or its subcontractors
(including without limitation the liability to pay premiums) shall be the sole obligation
of the Contractor or its subcontractors, and not the additional insured. The additional
insured status under the Cont ractor’s and its subcontract ors’ Commercial General
Liability insurance policies shall be effected using the ISO Additional Insured
Endorsement form CG 20 10 11 85 (or CG 20 10 07 04 and CG 20 37 07 04) or such
other endorsement or combination of endorsements providing coverage at least as broad
and approved by the CO in writing. All of the Contract or’s and its subcontractors’
liability policies (except for workers’ compensation and professional liability
insurance) shall be endorsed using ISO form CG 20 01 04 13 or its equivalent so as to
indicate that such policies provide primary coverage (without any right of contribution
by any other insurance, reinsurance or self-insurance, including any deductible or
retention, maintained by an Additional Insured) for all claims against the additional
insured arising out of the performance of this Statement of Work by the Contractor or
its subcontractors, or anyone for whom the C ontractor or its subcontractors may be
liable. These policies shall include a sepa ration of insureds clause applicable to the
additional insured.
If the Contractor and/or its subcontractors maintain broader coverage and/or higher
limits than the minimums shown below, the District requires and shall be entitled to the
broader coverage and/or the higher limits maintained by the Contractor and
subcontractors.
B. INSURANCE REQUIREMENTS
1. Commercial General Liability Insurance (“CGL”) - The Contractor shall provide
evidence satisfactory to the CO with respect to the services performed that it carries a
%
*( $$+
"%&
CGL policy, written on an occurrence (not claims-made) basis, on Insurance Services
Office, Inc. (“ISO”) form CG 00 01 04 13 (or another occurrence -based form with
coverage at least as broad and approved by the CO in writing), covering liability for all
ongoing and completed operations of the Co ntractor and under all subcontracts,
covering claims for bodily injury, including without limitation sickness, disease or
death and mental anguish of any persons, broad form property damage, including loss
of use resulting therefrom, personal and advertising injury, and including coverage for
liability arising out of an Insured Contract (including the tort liability of another assumed
in a contract) and acts of terrorism (whether caused by a foreign or domestic source). Such
coverage shall have limits of liability of not less than $1,000,000 for each occurrence,
and a $2,000,000 general aggregate.
The Commercial General Liability shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage
using ISO form CG 2015 0413 (or its equivalent) to The Government of the
District of Columbia
b) Coverage available to the addition al insureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of
Columbia
d) Any Annual Aggregate shall apply on a per location or per project basis
(where applicable)
e) Defense costs shall be in addition to and not erode the limits of liability
2. Automobile Liability Insurance - The Contractor shall provide evidence satisfactory to
the CO of commercial (business) automobile liability insurance written on ISO form
CA 00 01 10 13 (or another form with covera ge at least as broad and approved by the
CO in writing) including coverage for all owned, hired, borrowed and non-owned
vehicles and equipment used by the Contractor in connection with work under this
agreement, with a minimum combined single limit of $1,000,000 for bodily injury or
death and property damage, including loss of use thereof. Such policy or policies of
automobile liability insurance shall be wr itten on an "occurrence" (as opposed to a
"claims made") basis.
Auto Physical Damage Coverage - The Contractor shall provide auto physical
damage insurance to cover "loss" to a covered "auto" or its equipment:
a) Comprehensive - Fire, lightning, or e xplosion; theft; windstorm, hail, or
earthquake; flood; mischief or vandalism; or the sinking, burning, collision
or derailment of any conveyance transporting the covered "auto".
b) Collision Coverage - Caused by: The covered "auto's" collision with another
object or the covered "auto's" overturn.
The Commercial Auto Liability policy shall be further endorsed to:
a. To the fullest extent permitted by law , provide additional insured coverage
to The Government of the District of Columbia
%
*( $$+
"%&
b. Coverage available to the addition al insureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds
c. A waiver of subrogation in favor of The Government of the District of
Columbia
d. Defense costs shall be in addition to and not erode the limits of liability
e. If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Business Auto, Motor Carrier, and Truckers
(or its equivalent)
3. Workers’ Compensation Insurance- The Contractor shall provide evidence satisfactory
to the CO of Workers’ Compensation insurance in accordance with the statutory
mandates of the District of Columbia or the jurisdiction in which the contract is
performed.
Employer’s Liability Insurance- The Contractor shall provide evidence satisfactory to
the CO of employer’s liability insurance as follows: $500,000 per accident for injury;
$500,000 per employee for disease; and $500,000 for policy disease limit.
The Workers Compensation and Employers Liability shall be further endorsed to:
a) Include a Waiver of Subrogation in fa vor of The Government of the District of
Columbia.
b) Where applicable, include United States Longshore and Harbor Workers
Compensation Act (USL&H)
c) Where applicable, include Jones Act Coverage for seamen or crew members on
an “if any” basis.
4. Network Security/Privacy (Cyber) Liability Insurance covering acts, errors, omissions,
breach of contract, and violation of a ny consumer protection laws arising out of
Contractor’s operations or se rvices with a limit of $ 2,000,000 per claim and in the
aggregate. Such coverage shall include but not be limited to, third party and first party
coverage for loss or disclosure of a ny data, including personally identifiable
information and payment card i nformation, network security failure, violation of any
consumer protection laws, unauthorized ac cess and/or use or other intrusions,
infringement of any intellectual property rights (except patent), unintentional breach of
contract, negligence or breach of duty to use reasonable care, breach of any duty of
confidentiality, invasion of pri vacy, or violations of any ot her legal protections for
personal information, defamation, libel, slander, commercial disparagement, negligent
transmission of computer virus, or use of computer networks in connection with denial
of service attacks. Such coverage shall in clude regulatory defense and fines/penalties
in any jurisdiction anywhere in the world. Such coverage shall include contractual
privacy coverage for data breach response an d crisis management costs that would be
incurred by Contractor on behalf of The Government of the District of Columbia in the
event of a data breach including legal and forensic expenses, notification costs, credit
monitoring costs, and costs to operate a call center. Contractor shall maintain coverage
in force during the term of this Agreement and for an extended reporting period of not
less than two (2) years after.
%
*( $$+
"%&
5. Professional Liability Insurance (Errors & Omissions) - The Contractor shall provide
Professional Liability Insurance (Errors and Omissions) to cover liability resulting from
any error or omission in the performance of professional services under this Contract.
The policy shall provide limits of $1,000,000 per claim or per occ urrence for each
wrongful act and $2,000,000 annual aggregate. The Contractor warrants that any
applicable retroactive date precedes the date the Contractor first performed any
professional services for the Government of the District of Columbia and that
continuous coverage will be maintained or an extended reporting period will be
exercised for a period of at least ten ye ars after the completion of the professional
services. Limits may not be shared with other lines of coverage.
6. Commercial Umbrella or Excess Liability - The Contractor shall provide evidence
satisfactory to the CO of commercial umbre lla or excess liability insurance with
minimum limits of $10,000,000 per occurrence and $10,000,000 in the annual
aggregate, following the form and in excess of all liability policies. All liability
coverages must be schedu led under the umbrella and/or excess policy. The insurance
required under this paragraph sh all be written in a form that annually reinstates all
required limits. Coverage sh all be primary to any insurance, self-insurance or
reinsurance maintained by The Government of the District of Columbia and the “other
insurance” provision must be amended in accordance with this requirement and
principles of vertical exhaustion.
7. Crime Insurance (3rd Party Indemnity) - T he Contractor shall provide a Crime policy
including 3rd party fidelity to cover the dishones t acts of Contractors, its employees
and/or volunteers which result in a loss to the District. The Government of the District
of Columbia shall be included as loss payee. The policy shall provide a limit of $15,000
per occurrence.
8. Environmental Liability/Contractors Pollution Liability Insurance - The Contractor
shall provide evidence satisfactory to the CO of environmental liability insurance
covering losses caused by pollution or other hazardous conditions arising from ongoing
or completed operations of the Contractor. Such insurance shall apply to bodily injury,
property damage (including loss of use of damaged property or of property that has
been physically injured), clean-up costs, transit, and non-owned disposal sites.
Coverage shall extend to defense costs and expenses incurred in the investigation, civil
fines, penalties and damages or settlements. There shall be neither an exclusion nor a
sublimit for mold or fungus-related claims. The minimum limits required under this
paragraph shall be $2,000,000 per occurrence and $2,000,000 in the annual aggregate.
If such coverage is written on a claims-mad e basis, the Contractor warrants that any
retroactive date applicable to coverages under the policy precedes the Contractor’s
performance of any work under the Contract and that continuous completed operations
coverage will be maintained for at least ten (10) years or an extended reporting period
shall be purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO Owner certificates of insurance
evidencing environmental liability insurance maintained by third party
transportation and disposal site operators(s) used by the Contractor for losses
arising from facility(ies) accepting, st oring, or disposing hazardous materials or
other waste as a result of the Contractor’ s operations. Such coverages must be
%
*( $$+
"%&
maintained with limits of at least the amounts set forth above.
The Environmental Liability policy shall be further endorsed to include The
Government of the District of Columbia as an Additional Insured.
9. Employment Practices Liability - The Contractor shall provide evidence satisfactory to
the CO with respect to the operations performed to cover the defense of claims arising
from employment related wrongful acts includi ng but not limited to: Discrimination,
Sexual Harassment, Wrongful Termination, W orkplace Torts, "Bullying" in "any
location" and "by any means," including the Internet, whether between employees of
contractor or against third parties. Empl oyment Practices Liability coverage must
specifically state Third Party Liability coverage is included. Contractor will indemnify
and defend The Government of the District of Columbia should it be named co-
defendant or be subject to or party of any claim. Coverage shall also extend to
Temporary Help Firms and Independent C ontractors hired by Contractor. The policy
shall provide limits of not less than $1,000,000 for each wrongful act and $2,000,000
annual aggregate for each wrongful act.
10. Installation-Floater Insurance - For projects not involving structural alterations, the
contractor shall provide an installation floater policy with a limit equal to the Property
values being installed as part of the proj ect. The policy shall cover property while
located at the project site, at temporary locati ons, or in transit; deductibles will be the
sole responsibility of the contractor.
11. Riggers Liability – If and to the extent Contractor’s services or scope of Work call for,
require, or involve the lifting, picking, rigging and setting of others property, materials
or equipment, Contractor shall procure, ma intain and pay for Riggers Liability
Insurance to insure against physical loss of or damage in amounts sufficient to insure
the full market value and / or replacement costs of the property, materials or equipment
being lifted. In addition to replacing an y property, materials or equipment damaged
through Contractor’s work involving the lifting, picking, rigging and or setting,
Contractors shall also be responsible for all consequential loss of use, and delay
damages involved in replacing and / or repa iring the damaged property, materials, or
equipment. Failure to carry appropriate insurance and or failure to carry adequate limits
shall not relieve Contractor from its indemnity and contractual obligations herein.
C. SUBCONTRACTOR INSURANCE REQUIREMENTS
Any and all subcontractors engaged by Contractor for work under this agreement
shall be required to have the same insu red required of Contractor. Should the
Contractor wish to propose different insurance requirements than outlined below, then,
prior to commencement of work by the subcontractor, the Contractor shall submit in
writing the name and brief description of work to be performed by the subcontractor on
the Subcontractors Insurance Requirement Template provided to the Office of Risk
Management (ORM). ORM will determine the insurance requirements applicable to the
subcontractor and promptly deliver such requi rements in writing to the Contractor. In
%
*( $$+
"%&
either instance, the Contractor must provide proof of the subcontractor's required
insurance prior to commencement of work by the subcontractor.
D. PRIMARY AND NONCONTRIBUTORY INSURANCE
The insurance required herein shall be primary to and will not seek contribution
from any other insurance, reinsurance or self-insurance including any deductible or
retention, maintained by the Government of the District of Columbia.
E. DURATION. The Contractor shall carry all required insurance until all contract work
is accepted by The Government of the Dis trict of Columbia and shall carry listed
coverages for ten years for construction projects following final acceptance of the work
performed under this contract and two years for non-construction related contracts.
F. LIABILITY. These are the required mi nimum insurance requirements established by
The Government of the District of Columbia. However, it is understood that The
Government of the District of Columbia does not in any way represent that the
insurance or the limits of insurance specified herein are sufficient or adequate to protect
your interests or liabilities and will not in any way limit the contractor’s liability under
this contract.
G. CONTRACTOR’S PROPERTY. Contractor and subcontractors are solely responsible
for any loss or damage to their personal property, including but not limited to tools and
equipment, scaffolding, and temporary struc tures, rented machinery, or owned and
leased equipment. A waiver of subrogation shall apply in favor of The Government of
the District of Columbia.
H. MEASURE OF PAYMENT. The Government of the District of Columbia shall not
make any separate measure or payment for the cost of insurance and bonds. The
Contractor shall include all of the costs of insurance and bonds in the contract price.
I. NOTIFICATION. The Contractor shall ensure that all policies provide that the CO
shall be given thirty (30) days prior written notice in the event of cancellation, non-
renewal, or material changes to the extent such cancellation or material changes results
in Contractor no long complying with the above requirements. The Contractor shall
provide the CO with ten (10) days’ prior written notice in the event of non-payment of
premium. The Contractor will also provide the CO with an updated Certificate of
Insurance should its insurance coverages renew during the contract. The Government
of the District of Columbia may reasonably change the above insurance coverage
requirements during the Term by giving Contractor at least 30 days’ notice of the
change. Contractor must comply, at your expe nse, and deliver to the CO evidence of
compliance before the change becomes effective.
%
*( $$+
"%&
J. CERTIFICATES OF INSURANCE. The Contra ctor must send to CO, at least 10 days
after execution of this Agreement, certif icates of insurance evidencing the required
insurance coverage and endorsements required herein. Contractor must also provide us
with evidence of renewal before the expiration date of each insurance policy. Contractor
is responsible for providing us with 30 days advanced written notice if the certificate
of insurance by the insurer has been canceled, reduced in coverage, or otherwise altered.
Certificates of insurance must reference the corresponding contract number. Evidence
of insurance shall be submitted electronically to James Marshall at
james.marshall@dc.gov.
The CO may request and the Contractor shal l promptly deliver updated certificates of
insurance, endorsements indicating the requi red coverages, and/or certified copies of
the insurance policies. If the insurance initially obtained by the Contractor expires prior
to completion of the contract, renewal certif icates of insurance and additional insured
and other endorsements shall be furnished to the CO prior to the date of expiration of
all such initial insurance. For all coverage required to be maintained after completion,
an additional certificate of insurance evidencing such coverage shall be submitted to
the CO on an annual basis as the coverage is renewed (or replaced).
K. DISCLOSURE OF INFORMATION. The Contractor agrees that The Government of
the District of Columbia may disclose the name and contact information of its insurers
to any third party which presents a claim against The Government of the District of
Columbia for any damages or claims resulti ng from or arising out of work performed
by the Contractor, its agents, employees, servants, or subcontractors in the performance
of this contract.
L. CARRIER RATINGS. All Contractor’s and its subcontractors’ insurance required in
connection with this contract shall be wr itten by insurance companies with an A.M.
Best Insurance Guide rating of at least A- VII or better (or the equivalent by any other
rating agency) and licensed in the District of Columbia.
M. WARRANTIES. When applicable, the Cont ractor should be named as an additional
insured on the applicable manufacturer’s/distributer’s Commercial General Liability
policy using Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another
occurrence-based form with coverage at least as broad). CO should collect, review for
accuracy, and maintain all warranties for goods and services.
%
*( $$+
"%&
ARTICLE 12- BONDS
12.1 Performance Bond and Payment Bond.
The Design-Builder shall, before commencing the Construc tion Phase, provide to the
Department a payment bond and performance bond, each with a penal sum equal to the full
value of the GMP. Such bond shall remain in fu ll force and effect until Final Completion is
achieved and the Department shall be able to draw upon such bond regardless of the amount
paid by the Department to the Design-Builder, even if such amount exceeds the penal value of
such bond. Unless otherwise directed by the Department, the Design-Builder shall require all
Subcontractors whose Subcontract prices ex ceed One Hundred Thousand Dollars ($100,000)
to provide payment and performance bonds, with a penal sum equal to one hundred percent
(100%) of the subcontract price. Further, the Desi gn-Builder must deliver to the Contracting
Officer copies of its subcontractor’s Agreemen ts of Indemnity. All bonds must be in a form
acceptable to the Department, its lenders or bond trustee, and issued by a surety authorized to
do business in the District of Columbia and bonding company listed on the United States
Department of Treasury ’s Listing of Approved Sureties. All subcontractors’ bonds must
include a dual obligee rider, naming the Design-Builder and the Department as dual obligees.
If the Guaranteed Maximum Price is increased pursuant to the terms of the Agreement, the
Department may require that the amount of th e bonds be increased in the amount of one
hundred percent (100%) of the increase, and the De sign-Builder shall promptly comply. The
Design-Builder shall furnish a copy of its bonds to any potential beneficiary of the bonds, or
permit that person or company to make a copy. If the bonds provided become unacceptable to
the Department, the Design-Builder shall prompt ly provide substitute security acceptable to
the Department. If the Design-Builder intends to exercise its rights as dual obligee under any
trade Subcontractor’s bond, it shall first give the Department twenty (20) days written notice,
so that the Department may lodge any objection it may reasonably have to the proposed action.
%
*( $$+
"%&
ARTICLE 13 - ECONOMIC INCLUSION REQUIREMENTS
13.1 LSDBE Utilization.
If the Design-Builder subcontracts any work, at least (35%) of the dollar volume of the
Agreement shall be subcontracted with smal l business enterprises (“SBE”). If there are
insufficient qualified SBEs then the subcontr acting may be satisfied by subcontracting
(35%) of the dollar volume to any qualified certified business enterprises (“CBE”). For
subcontracted work, pass through en tities will not count toward this goal. In order to count
toward the subcontracting requirement, the SBE must perform at least (35%) of the work that
is being counted toward the goal with its own forces. The Local, Small, and Disadvantaged
Business Enterprises (“LSDBE”) certification shall be, in each case, as of the effective date of
the applicable subcontract. Supply agreements with material suppliers shall be counted toward
meeting this goal. The Design-Builder has deve loped a Subcontracting P lan that is attached
hereto as Exhibit D . The Design-Builder shall comply with the terms of the SBE
Subcontracting Plan in making purchases and administering its subcontracts and supply
agreements.
13.2 Mandatory Subcontracting Requirements
13.2.1 Unless the Director of the Department of Small and Local Business
Development (DSLBD) has approved a waiver in writing, in accordance with D.C. Official
Code § 2-218.51, for all contracts in excess of $250,000, at least 35% of the dollar volume of
the contract shall be subcontracted to qualified small business enterprises (SBEs).
13.2.2 If there are insufficient SBEs to completely fulfill the requirement of Section
13.2.1, then the subcontracting may be satisfied by subcontracting 35% of the dollar volume
to any qualified certified business enterprises (CBEs); provided, however, that all reasonable
efforts shall be made to ensure that SBEs ar e significant participants in the overall
subcontracting work.
13.2.3 A prime contractor that is certified by DSLBD as a small, local or
disadvantaged business enterprise shall not be required to comply with the provisions of
Sections 13.2.1 and 13.2.2.
13.2.4 Except as provided in Sections 13.2.1 and 13.2.2, a prime contractor that is a
CBE and has been granted a proposal preference pursuant to D.C. Official Code § 2-218.43,
or is selected through a set-aside program, shall perform at least 35% of the contracting effort
with its own organization and resources and, if it subcontracts, 35% of the subcontracting
effort shall be with CBEs. A CBE prime c ontractor that performs less than 35% of the
contracting effort shall be subject to e nforcement actions under D.C. Official Code § 2-
218.63.
13.2.5 A prime contractor that is a certified jo int venture and has been granted a
proposal preference pursuant to D.C. Official Code § 2-218.43, or is selected through a set-
aside program, shall perform at least 50% of the contracting effort with its own organization
and resources and, if it subcontracts, 35% of th e subcontracting effort shall be with CBEs.
A certified joint venture prime contractor that performs less than 50% of the contracting
effort shall be subject to enforcement actions under D.C. Official Code § 2-218.63.
%
*( $$+
"%&
13.2.6 Each CBE utilized to meet these subcontracting requirements shall
perform at least 35% of its contracting effort with its own organization and resources.
13.2.7 A prime contractor that is a CBE and has been granted a proposal
preference pursuant to D.C. Official Code § 2-218.43, or is selected through a set-
aside program, shall perform at least 50% of the on-site work with its own
organization and resources if the contract is $1 million or less.
13.3 Subcontracting Plan (Exhibit D)
An Offeror responding to this RFP that is obligated to subcontract shall be required to
submit with its Proposal, any subcontracting pl an required by law. Offeror’s responding to
this RFP shall be deemed nonresponsive and shall be rejected if the Offeror fails to submit a
subcontracting plan that is required by law. If the Agreement is in excess of $250,000, at least
35% of the dollar volume of the Agreement shall be subcontracted in accordance with the
SBE Subcontracting Plan (Exhibit D).
13.4 Copies of Subcontracts
Within twenty-one (21) days of the date of award, the Contractor shall provide fully
executed copies of all subcontracts identified in the subcontracting plan to the CO, City
Administrator (“CA”), District of Columbia Auditor and the Director of DSLBD.
13.5 Subcontracting Plan Compliance Reporting
13.5.1 If the Contractor has a subcontracting plan required by law for this contract,
the Contractor shall submit a quarterly report to the Contracting Officer, District of
Columbia Auditor, and the Director of DSLBD. The quarterly report shall include the
following information for each subcontract identified in the subcontracting plan:
(A) The price that the prime contract or will pay each subcontractor under
the subcontract;
(B) A description of the goods procured or the services subcontracted for;
(C) The amount paid by the prime contractor under the subcontract; and
(D) A copy of the fully executed subc ontract, if it was not provided with
an earlier quarterly report.
13.5.2 If the fully executed subcontract is not provided with the quarterly report,
the prime contractor will not receive credit toward its subcontracting requirements for
that subcontract.
13.6 Annual Meetings
Upon at least 30-days written notice provi ded by DSLBD, the Contractor shall meet
annually with the CO, CA, District of Colu mbia Auditor and the Director of DSLBD to
provide an update on its subcontracting plan.
13.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and the District of Columbia
Auditor upon commencement of the contract and when the contract is completed.
%
*( $$+
"%&
13.8 Enforcement and Penalties for Breach of Subcontracting Plan
13.8.1 A contractor shall be deemed to have breached a subcontracting plan required
by law, if the contractor (i) fails to submit subcontracting plan monitoring or compliance
reports or other required subcontracting infor mation in a reasonably timely manner; (ii)
submits a monitoring or compliance report or other required subcontracting information
containing a materially false statement; or (iii) fails to meet its subcontracting requirements.
13.8.2 A contractor that is found to have bre ached its subcontracting plan for
utilization of CBEs in the performance of a cont ract shall be subject to the imposition of
penalties, including monetary fines in accordance with D.C. Official Code § 2-218.63.
13.8. 3 If the CO determines the Contractor’s failure to be a material breach of the
contract, the CO shall have cause to terminate the contract under the default provisions of
the Standard Contract Provisions for Construction Contracts ( Exhibit J1 ) and Standard
Contract Provisions for Architectural and Engineering Contracts (Exhibit J2).
13.8.4 Neither the Design-Builder nor a Subcontractor may remove a Subcontractor
or tier-Subcontractor if such S ubcontractor or tier-Subcontractor is certified as an LSDBE
company unless the Department approves of such removal, in writing. The Department may
condition its approval upon the Design-Builder developing a plan that is, in the Department’s
sole and absolute judgment, adequate to main tain the level of LSDBE participation on the
Project.
13.9 51% District Residents New Hires Requirements and First Source
Employment Agreement
13.9.1 For contracts for services in the amount of $300,000 or more, the Design-
Builder shall comply with the First Source Employment Agreement Act of 1984, as
amended, D.C. Official Code § 2-219.01 et seq. (“First Source Act”).
13.9.2 The Design-Builder shall enter into and maintain during the term of the
Contract, a First Source Employment Ag reement (Employment Agreement) ( Exhibit U)
with the District of Columbia Depar tment of Employment Service’s (“DOES”), in which
the Design-Builder shall agree that: (a) The first source for finding employees to fill all
jobs created in order to perform the Contract shall be the First Source Register; and (b) the
first source for finding employees to fill any va cancy occurring in all jobs covered by the
Employment Agreement shall be the First Source Register.
13.9.3 If applicable, the Design-Builder shall comply with subchapter X of Chapter
II of Title 2, and all successor acts theret o, including by not limited to the Workforce
Intermediary Establishment and Reform of First Source Amendment Act of 2011, and the
rules and regulations promulgated thereunder, in cluding, but not limited to the following
requirements:
a) At least twenty percent (20%) of journey worker hours by trade shall be performed
by District residents;
b) At least sixty percent (60%) of apprentice hours by trade shall be performed by
District residents;
%
*( $$+
"%&
c) At least fifty one percent (51%) of th e skilled laborer hours by trade shall be
performed by District residents; and
d) At least seventy percent (70%) of comm on laborer hours shall be performed by
District residents.
13.9.4 The Design-Builder shall not begin pe rformance of the Contract until its
Employment Agreement has been accepted by DOES. Once approved, the Employment
Agreement shall not be amended except with the approval of DOES.
13.9.5 The Design-Builder agrees that at lea st 51% of the new employees hired to
perform the Contract shall be District reside nts. The Design-Builder shall ensure that at
least fifty-one percent (51%) of th e Design-Builder and every sub- consultant’s and
subcontractor’s employees hired after the effect ive date of the Agreement, or after such
subconsultant or subcontractor enters into a cont ract with the Design-Builder, to work on
the Project shall be residents of the District of Columbia. This percentage shall be applied
in the aggregate, and not trade by trade.
13.9.6 The Contractor’s hiring and reporting requirements under the First Source
Act and any rules promulgated thereunder shall continue for the term of the Contract.
13.9.7 The CO may impose penalties, includi ng monetary fines of 5% of the total
amount of the direct and indirect labor costs of the Contract, for a willful breach of the
Employment Agreement, failure to submit the required hiring compliance reports, or
deliberate submission of falsified data.
13.9.8 If the Design-Builder does not receive a good faith waiver, the CO may also
impose an additional penalty equal to 1/8 of 1% of the total amount of the direct and indirect
labor costs of the Contract for each percentag e by which the Design-Builder fails to meet
its hiring requirements.
13.9.9 Any contractor which violates, more th an once within a 10-year timeframe,
the hiring or reporting requirements of the First Source Act shall be referred for debarment
for not more than five (5) years.
13.9.10 The Design-Builder may appeal any decision of the CO pursuant to this
clause to the DC Contract Appeals Boa rd located at 441 4th Street, NW, Suite 350N,
Washington, DC 20001.
13.9.11 The provisions of the First Source Act do not apply to nonprofit
organizations which employ 50 employees or less.
13.9.12 Construction projects or contracts covered by Section 13.9.3 of the Contract
shall be subject to the hiring and reporting requirements set forth in this Section until
construction is completed and a final certificate of occupancy has been issued.
13.9.13 Equal Employment Opportunity (“EEO”) . The Design-Builder has
executed and submitted an EEO policy form (Exhibit O).
13.10 Economic Inclusion Reporting Requirements
13.10.1 Upon execution of the Agreement, the Design-Builder and all its member
%
*( $$+
"%&
firms, if any, and each of its Subcontractors shall submit to the Department a list of current
employees and apprentices that will be assigned to the Agreement, the date they were hired
and whether or not they live in the District of Columbia.
13.10.2 The Design-Builder and its constituent entities shall comply with subchapter
X of Chapter II Title 2, and subchapter II of Chapter 11 of Title 1 of the D.C. Code, and all
successor acts thereto and the rules and re gulations promulgated thereunder. The Design-
Builder and all member firms and Subcontractors shall execute a First Source Agreement
with DOES prior to beginning work at the Project site.
13.10.3 The Design-Builder shall maintain detailed records relating to the general
hiring of District of Columbia and community residents.
13.10.4 The Design-Builder shall be responsible for: (i) including the provisions of
Section 9.3 in all subcontracts; (ii) collect ing the information required in Section 9.3 from
its Subcontractors; and (iii) provi ding the information collected from its Subcontractors in
the reports required to be submitted by the Design-Builder pursuant to Section 9.3.
13.10.5. Service Contract Act Provision.R e s e r v e d
13.10.6 Living Wage Act . The Contractor agrees that the Work performed under
the proposed contract shall be subject to the li ving wage act in effect at the time of the
Contract execution by the Department. As such, the Contractor and its subcontractors shall
comply with the wage reporting requirements imposed by the act as set forth in Exhibit P.
13.10.7 Apprenticeship Act . The D.C. Apprenticeship Act of D.C. Law 2-156, (as
amended, the Act) may apply to these Projects. As applicable, the Design-Builder firms and
its subcontractors selected to perform work on th e Projects on a craft-by-craft basis may be
required to comply with the Act. If appl icable, all terms and conditions of the D.C.
Apprenticeship Council Rules and Regulations shall be implemented, and the selected Design-
Builder firms shall be liable for any subcontractor non-compliance. Thirty-Five percent (35%)
of all apprentice hours shall be performed by District residents.
13.11 WAY TO WORK AMENDMENT ACT OF 2006
13.11.1. Except as described in Section 13.14.8 below, the Design-Builder shall comply
with Title I of the Way to Work Amendment Act of 2006, effective June 8, 2006 (D.C. Law
16-118, D.C. Official Code §2-220.01 et seq.) (“Living Wage Act of 2006”), for contracts for
services in the amount of $100,000 or more in a 12-month period.
13.11.2 The Design-Builder shall pay its empl oyees and subcontractors who perform
services under the Contract no less than the current living wage.
13.11.3 The Design-Builder shall include in any subcontract for $15,000 or more a
provision requiring the subcontractor to pay it s employees who perform services under the
Contract no less than the current living wage rate.
13.11.4 The DOES may adjust the living wage a nnually and Design-Builder will find
the current living wage rate on its website at www.does.dc.gov.
13.11.5 The Design-Builder shall provide a copy of the Fact Sheet attached within
Exhibit P to each employee and subcontractor who performs services under the Contract. The
%
*( $$+
"%&
Design-Builder shall also post the Notice attached within Exhibit P in a conspicuous place in
its place of business. The Design-Builder shall include in any subcontract for $15,000 or more
a provision requiring the subcontractor to post the Notice in a conspicuous place in its place of
business.
13.11.6 The Design-Builder shall maintain its payroll records under the Contract in the
regular course of business for a period of at least three (3) years from the payroll date, and shall
include this requirement in its subcontracts for $15,000 or more under the Contract.
13.11.7 The payment of wages required under the Living Wage Act of 2006 shall be
consistent with and subject to the provisions of D.C. Official Code §32-1301 et seq.
13.11.8 The requirements of the Living Wage Act of 2006 do not apply to:
(1) Contracts or other agreements that are subject to higher wage level determinations
required by federal law;
(2) Existing and future collective bargain ing agreements, provided, that the future
collective bargaining agreement results in the employee being paid no less than the established
living wage;
(3) Contracts for electricity, telephone, water, sewer or other services provided by a
regulated utility;
(4) Contracts for services needed immediately to prevent or respond to a disaster or
imminent threat to public health or safety declared by the Mayor;
(5) Contracts or other agreements that provide trainees with additional services including,
but not limited to, case management and job readiness services; provided that the trainees do
not replace employees subject to the Living Wage Act of 2006;
(6) An employee under 22 years of age employed during a school vacation period, or
enrolled as a full-time student, as defined by the respective institution, who is in high school
or at an accredited institution of higher education and who works less than 25 hours per week;
provided that he or she does not replace employees subject to the Living Wage Act of 2006;
(7) Tenants or retail establishments that oc cupy property constructed or improved by
receipt of government assistance from the District of Columbia; provided, that the tenant or
retail establishment did not receive direct government assistance from the District;
(8) Employees of nonprofit organizations that employ not more than 50 individuals and
qualify for taxation exemption pursuant to section 501(c)(3) of the Internal Revenue Code of
1954, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3);
(9) Medicaid provider agreements for direct care services to Medicaid recipients, provided,
that the direct care service is not provided through a home care agency, a community residence
facility, or a group home for mentally retarded persons as those terms are defined in section 2
of the Health-Care and Community Residence Facility, Hospice, and Home Care Licensure
Act of 1983, effective February 24, 1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and
(10) Contracts or other agreements between managed care organizations and the Health Care
Safety Net Administration or the Medicaid Assistance Administration to provide health
services.
13.11.9 The Mayor may exempt a contractor from the requirements of the Living Wage
Act of 2006, subject to the approval of Council, in accordance with the provisions of Section
109 of the Living Wage Act of 2006.
13.12 SPECIAL PROVISIONS RELATED TO THE COVID-19 EMERGENCY
%
*( $$+
"%&
13.12.1 The Contractor is required to comply with Mayor’s Order 2021-099, COVID-
19 Vaccination Certification Requirement for District Government Employees,
Contractors, Interns, and Grantees, dated August 10, 2021, and all substantially similar
vaccine requirements, including any modifications to this Order, unless and until they
are rescinded or superseded. At the request of the District government, Contractors may
be asked to provide certification of compliance with this requirement and/or documents
and records in support of this certification.
%
*( $$+
"%&
ARTICLE 14 - LIQUIDATED DAMAGES
14.1 Reserved
14.2 Delay in Substantial Completion.
If the Scope of Work is not substantially complete by the Substantial Completion Date,
the Design-Builder shall be subject to liquidated damages in an amount of Two Thousand Five
Hundred Dollars ($2,500) per day. These damages shal l not apply if the delay is the result of
Force Majeure and the Design-Builder otherwise complies with the provisions set forth in the
Standard Contract Provisions.
%
*( $$+
"%&
ARTICLE 15 - MISCELLANEOUS PROVISIONS
15.1 Ownership and Use of Project Documents . The Drawings, Specifications and
other Project Documents prepared by the Design- Builder’s Architect and copies thereof
furnished to the Design-Builder, are for use solely with respect to this Project. They are not to
be used by the Design-Builder, Subcontra ctors, Sub-subcontractors or suppliers on other
projects, or for additions to this Project outside the scope of the Work, without the specific
written consent of the Depa rtment, and the Design- Builder’s Architect. The referenced
Drawing, Specifications and other Project Documents shall become the property of the
Department. The District will be the sole owner of all project drawings, specification and other
Project Documents and the Design-Builder shall provide the District with a complete set of
“as-built” within sixty (60) days of final completion.
15.2 Assignment.
The Department and Design-Builder respective ly bind themselves, their partners, members,
joint venturers, constituent enti ties, successors, assigns and legal representative to the other
party hereto and to partners, members, joint venturers, constituent entities, successors, assigns
and legal representatives of such other party in respect to covenants, agreements and
obligations contained in the Agreement. Ne ither party to the Agr eement shall assign the
Agreement or its rights and obl igations under the Agreement, without written consent of the
other party. If either party attempts to make such an assignment without such consent, that
party shall nevertheless remain legally responsible for all obligations under the Agreement.
15.3 Buy American Act Provision.
The Contractor shall comply with the provisions of the Buy American Act (41 U.S.C. §§
8301–8305), including, but not limited to, the purchase of steel. To the extent that the
language in this section contradicts the language under Article 24 of The Department
Standard Contract Provisions for Construction Contracts and Article 15 (C) of the
Department Standard Contract Provisions for Architectural and Engineering Services
Contracts (Exhibits J.1 and J2) regarding compliance with the Buy American Act, the
language in this section should supersede.
15.3.1 In accordance with the Buy American Act (41 U.S.C. §§ 8301–8305), and
Executive Order 10582, December 17, 1954 (3 CFR, 1954-58 Comp., p.230), as amended by
Executive Order 11051, September 27, 1962 (3 CFR, 1059— 63 Comp., p. 635), the
Contractor agrees that only domestic construction material will be used by the Contractor,
subcontractors, material men and suppliers in the performance of the Contract, except for
non-domestic material listed in the Contract.
a. “Components” as used in this Section, means those articles, materials and
supplies incorporated directly into the end products.
b. “Domestic end product”, as used in this section, means, (1) an
unmanufactured end product mined or produced in the United States, or (2)
an end product manufactured in the United States, if the cost of its
components mined, produced, or manufactured in the United States, exceeds
65 percent of the cost of all its components. For an end product that consists
wholly or predominantly of iron or steel or a combination of both, the cost
of foreign iron and steel must constitute less than 5 percent of the cost of all
the components used in the end product.
%
*( $$+
"%&
c. Components of foreign origin of the same class or kind as the products shall
be treated as domestic. Scrap generated, collected, and prepared for
processing in the United States is considered domestic.
d. “End Products”, as used in this Section, means those articles, materials, and
supplies to be acquired for public use under this Contract.
e. The Contractor shall deliver only domestic end products, except those:
i. For use outside the United States;
ii. That the District determines are not mined, produced, or
manufactured
in the Unites States in sufficient and reasonably available commercial
quantities of a satisfactory quality;
iii. For which the District determines that domestic preference would
be
inconsistent with the public interest; or
iv. For which the District determines the cost to be unreasonable.
15.3.1.2 Domestic Construction Material. “Construction material” meansany
article, material or supply brought to the construction site for incorporation in the building or
work. An unmanufactured construction material is a “domestic construction material” if it has
been mined or produced in the United States. A manufactured construction material is a
“domestic construction material” if it has been manufactured in the United States and if the
cost of its
components which have been mined, produced, or manufactured in the United States exceeds
65 percent of the cost of all its components. “Component” meansany article, material, or
supply directly incorporated in a construction material. If the construction material consists
wholly or predominantly of iron or steel, the iron or steel was produced in the United States;
or, for construction material that consists wholly or predominantly of iron or steel or a
combination of both, a construction material manufactured in the United States if the cost of
foreign iron and steel constitutes less than 5 percent of the cost of all the components used in
such construction material.
15.3.1.3 Domestic Component. A component shall be considered to have been
“mined, produced, or manufactured in the United States” regardless of itssource, in fact, if
the article, material or supply in which it is incorporated was manufactured in the United
States and the component is of a class or kind determined by the government to be not mined,
produced or manufactured in the united states in sufficient and reasonably available
commercial quantities
and of a satisfactory quality.
15.3.1.4 Foreign Construction Material. “Foreign construction material” means a
construction material other than a domestic construction material.
15.4Wage Determinations
15.4.1 Davis-Bacon Act Provision.
The Davis-Bacon Act as stated in and Title 29 Code of Federal Regulations
(“CFR”) Exhibit G1 are applicable to this Project. As such, the Design-Builder and its
%
*( $$+
"%&
trade subcontractors shall comply with the wage and reporting requirements imposed by
that Act.
15.4.2 Service Contract Wage Determination
The Service Contract Act (Exhibit G2) are applicable to this Project. As such, the Design
Builder and its trade subcontractors shall comply with the wage and reporting requirements
imposed by that Act.
15.5The Quick Payment Clause
15.5.1 Interest Penalties to Contractors
15.5.1.1 The District will pay interest penalties on amounts due to the
Design-Builder under the Quick Paymen t Act, D.C. Official Code §2-221.01 et seq.,
as amended, for the period beginning on the day after the required payment date and
ending on the date on which payment of the amount is made. Interest shall be calculated
at the rate of 1.5% per month. No interest penalty shall be paid if payment for the
completed delivery of the item of property or service is made on or before the required
payment date. The required payment date shall be:
a. The date on which payment is due under the terms of the Contract;
b. Not later than 7 calendar days, excludi ng legal holidays, after the date of
delivery of meat or meat food products;
c. Not later than 10 calendar days, excl uding legal holidays, after the date of
delivery of a perishable agricultural commodity; or
d. 30 calendar days, excluding legal holiday s, after receipt of a proper invoice for
the amount of the payment due, if a specific date on wh ich payment is due is
not established by contract;
15.5.1.1.2 Any amount of an interest penalty which remains unpaid at the end of any
30-day period shall be added to the principal amount of the debt and thereafter interest penalties
shall accrue on the added amount.
15.5.1.1.3 No interest penalty shall be due to the Design-Builder if payment for the
completed delivery of goods or services is made on or after:
a. 3 rd day after the required payment date for meat or a meat food product;
b. 5 th day after the required payment date for an agricultural commodity; or
c. 15 th day after any other required payment date in the case of any other item.
15.5.2 Payments to Subcontractors
15.5.2.1 The Design-Builder must take one of th e following actions within seven (7)
days of receipt of any amount paid to the Design -Builder by the District for work performed
by any subcontractor under this contract:
a. Pay the subcontractor for the proportiona te share of the total payment received
from the District that is attributable to the subcontractor for work performed
under the Contract; or
%
*( $$+
"%&
b. Notify the Contracting Officer and the subcontractor, in writing, of the Design-
Builder’s intention to withhold all or pa rt of the subcontractor’s payment and
state the reason for the nonpayment.
15.5.2.2 The Design-Builder must pay any subcontractor or supplier interest penalties
on amounts due to the subcontractor or supplier beginning on the day after the payment is due
and ending on the date on which the payment is made. Interest shall be calculated at the rate of
1.5% per month. No interest penalty shall be paid on the following if payment for the completed
delivery of the item of property or service is made on or before:
a. The 3rd day after the required payment date for meat or a meat product;
b. The 5th day after the required payment date for an agricultural commodity; or
c. The 15th day after the required payment date for any other item.
15.5.2.3 Any amount of an interest penalt y which remains unpaid by the Design-
Builder at the end of any 30-day period shall be added to the principal amount of the debt to
the subcontractor and thereafter interest penalties shall accrue on the added amount.
15.5.2.4 A dispute between the Design-Builder and subcontractor relating to the
amounts or entitlement of a subcontractor to a payment or a late payment interest penalty under
the Quick Payment Act does not constitute a disp ute to which the District of Columbia is a
party. The District may not be interpleaded in any judicial or administrative proceeding
involving such a dispute.
15.5.3 Subcontractor Quick Payment Clause Flow-Down Requirements
15.5.3.1The Design-Builder shall include in each subcontract under this Contract a
provision requiring the subcontractor to include in its contract with any lower-tier
subcontractor or supplier the pay ment and interest clauses requi red under paragraphs (1) and
(2) of D.C. Official Code §2-221.02(d).
15.5.4 Requirements for Change Order Payments
15.5.4.1The Department and the Design-Builder are prohibited from requiring the a
Prime Contractor or a subcontractor to undertake any work that is determined to be beyond the
original scope of the Prime Contractor's or a subcontractor's contract or subcontract, including
work under a District-issued ch ange order, when the additional work increases the contract
price beyond the not-to-exceed price or negotiated maximum price of the underlying contract,
unless the Contracting Officer:
a. Agrees with the Prime Contractor and, if applicable, the subcontractor on a price
for the additional work;
b. Obtains a certification from the Chief Fi nancial Officer that there are sufficient
funds to compensate the Prime Contractor a nd, if applicable, the subcontractor for
the additional work;
c. Has made a written, binding commitment w ith the Prime Contractor to pay for the
additional work within 30 days after the Prime Contractor submits a proper invoice
for the additional work to the CO; and
%
*( $$+
"%&
d. Gives written notice of the funding certificat ion from the Chief Financial Officer to
the Prime Contractor;
15.5.4.2 The Design-Builder is required to inclu de in its subcontracts a clause that
requires the Prime Contractor to:
a. Within 5 business days of receipt of th e notice required under subparagraph (A)(iv)
of this paragraph, provide the subcontractor with notice of the approved amount to
be paid to the subcontra ctor based on the portion of th e additional Work to be
completed by the subcontractor;
b. Pay the subcontractor any undisputed amount to which the subcontractor is entitled
for any additional work within 10 days of receipt of payment for the additional
Work from the District; and
c. If the Prime Contractor withholds payment from a subcontractor, notify the
subcontractor in writing and state the re ason why payment is being withheld and
provide a copy of the notice to the CO.
15.5.4.3 The Department, Design-Builder, Design-Builder Architects, or a
subcontractor are prohibited from de claring another party to the c ontract to be in default or
assessing, claiming, or pursuing damages for delays in the completion of the construction due
to the inability of the parties to agree on a price for the additional work.
15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the requirements
of this Contract.
b. The Design-Builder shall not comply with any order, directive or request that
changes or modifies the requirements of this Contract, unless issued in writing and
signed by the CO.
c. In the event the Design-Builder effects any change at the instruction or request of
any person other than the CO, the change will be considered to have been made
without authority and no adjustment will be made in the Contract price to cover any
cost increase incurred as a result thereof.
15.6 Contract Work Hours and S afety Standards Act Provision. The Design-
Builder agrees that the applicable work perfor med under this Agreement shall be subject to
the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333).
15.7 False Claims Act. Design-Builder shall be governed by all laws and
regulations prohibiting false or fraudulent statements and claims made to DC government,
including the prescriptions set forth in District of Columbia Code Official Code §22-2514 and
§§2-381.01 et seq. In the event that it is discovered that the Design-Builder has made a false,
fraudulent or unsupported statement or claim to the Department, the Department may
terminate this Agreement without liability.
15.8 Interpretation of Contract and Order of Precedence. All of the Project
Documents comprising the Agreement should be re ad as complementary, so that what is
called for by one is called for by all. Ambigui ties shall be construed in favor of a broader
scope of Work for the Design-Builder, as the intent of the Agreement is, with specific
identified exceptions, to require the Design-B uilder to assume entire responsibility for
%
*( $$+
"%&
construction of the Project. If there is any inconsistency among the Project Documents
comprising the Agreement, the order of precedence among them is as follows, with the first
listed Project Documents having the highest priority:
1. This Agreement and its Modifications, Ch ange Orders, Change Directives and any
Exhibits thereto;
2. The Department’s Standard Contract Provisions ( Construction Contracts and
Architectural/Engineering Services Contracts) , as amended, and any missing term in
this Agreement shall be addressed in accordance with the Standard Contract Provisions;
and
3. The Construction Documents released or approved by the Department.
15.9 Independent Contractor. The Design-Builder and the Design- Builder’s
employees: (1) shall perform the services specified herein as independent contractors, not as
employees or agent of the Distri ct, or joint venture or partner with the District; (2) shall be
responsible for their own management and administration of the work required and bear sole
responsibility for complying with any and all technical, schedule, financial requirements or
constraints attendant to the performance of this Agreement; (3) shall be free from supervision
or control by any government employee with respect to the manner or method of performance
of the service specified; but (4) shall, pursuant to the government’s right and obligation to
inspect, accept or reject work, comply with such general direction of the CO, or the duly
authorized representative of the CO as is necessary to ensure accomplishment of the
Agreement objectives. The Design-Builder shall have exclusive authority to manage, direct,
and control the work, and shall be responsible for all means, methods, techniques, sequences,
and procedures, as well as for Project safety.
15.10 No Third-Party Beneficiary Rights. Nothing in this Agreement shall be
construed as creating third-party beneficiary rights in any person or entity, except as otherwise
expressly provided in this Agreement.
15.11 Media Releases. Neither the Design-Builder, its employees, agents or
Subcontractors or material suppliers shall make any press release or similar media release
related to the Project unless such press release have been discussed with the Department prior
to its issuance.
15.12 Construction. This Agreement shall be construed fairly as to all Parties and
not in favor of or against any party, regardless of which party prepared the Agreement.
15.13 Notices. All notices or communications required or permitted under the
Agreement shall be in writing and shall be hand delivered or sent by telecopier or by recognized
overnight carrier to the intended recipient at the address stated below, or to such other address
as the recipient may have designated in writing. Any such notice or communication shall be
deemed delivered as follows: if hand delivered, on the day so delivered, if sent by telecopier,
on confirmation of successful transmission, and if sent by recognized overnight carrier, the
next business day.
If to the Department: If to the Design-Builder:
James H. Marshall
Contracting Officer
%
*( $$+
"%&
Department of General Services
3924 Minnesota Avenue, NE 5th Floor
Washington, DC 20019
and
Eric Njonjo
Acting Chief Procurement Officer
Department of General Services
3924 Minnesota Avenue, NE 5th Floor
Washington, DC 20019
This Section shall be read as imposing mi nimum requirements for distribution of required
contractual notices, and not as displacing dist ribution requirements with respect to design
documents, construction submittals, periodic reports, and other Project Documents.
15.14 Limitations. The Design-Builder agrees that any statute of limitations
applicable to any claim or suit by the Departme nt arising from this Agreement or its breach
shall be controlled by applicable District of Columbia law.
15.15 Survival. All agreements warranties, and representations of the Design-Builder
contained in the Agreement or in any certific ate or Project Documents furnished pursuant to
the Agreement shall survive termination or expiration of the Agreement.
15.16 No Waiver. If the Department waives any power, right, or remedy arising from
the Agreement or any applicable law, the waiver shall not be deemed to be a waiver of the
power, right, or remedy on the later recurrence of any similar events. No act, delay, or course
of conduct by the Department shal l be deemed to constitute th e Department's waiver, which
may be effected only by an express written waiver signed by the Department.
15.17 Remedies Cumulative. Unless specifically provided to the contrary in the
Agreement, all remedies set forth in the Agre ement are cumulative and not exclusive of any
other remedy the Department may have, including, without limitation, at law or in equity. The
Department's rights and remedies will be exercise d at its sole discretion and shall not be
regarded as conferring any obligation on the Department to exercise those rights or remedies
for the benefit of the Design-Builder or any other person or entity.
15.18 Headings/Captions. The headings or captions used in this Agreement or its
table of contents are for convenience only and shall not be used in interpreting the Agreement.
15.19 Entire Agreement; Modification. The Agreement supersedes all
contemporaneous or prior negotiations, repres entations, course of dealing, or agreements,
either written or oral. No modifications to the Agreement shall be effective against the
Department unless made in writing signed by bo th the Department and the Design-Builder,
unless otherwise expressly provided to the cont rary in the Agreement. Notwithstanding the
foregoing, nothing herein shall be construed to li mit the Department’s ability to unilaterally
modify the Agreement.
%
*( $$+
"%&
15.20 Severability. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be in valid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this
Agreement, and in lieu of each such invalid, illegal or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible and be valid, legal and enforceable; each
part of this Agreement is intended to be severable.
15.21 Anti-Deficiency Acts . The obligations and responsibilities of the Department
under the terms of the Agreement, or any subseque nt agreement entered into pursuant to this
Agreement or referenced herein (to which the Department is a party), are and shall remain
subject to the provisions of: (i) the federal Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1342,
1349-1351, 1511-1519 (2004) (the “Federal ADA”), and D.C. Official Code §§ 1 -206.03(e)
and 47-105 (2001); (ii) the District of Columbia Anti-Deficiency Act, D.C. Official Code §§
47-355.01 – 355.08 (2004 Supp.)(the “ D.C. ADA” and (i) and (ii) collectively, as amended
from time to time, the “ Anti- Deficiency Acts ”); and (iii) Section 446 of the District of
Columbia Home Rule Act, D.C. Official C ode § 1-204.46 (2001). Pursuant to the Anti-
Deficiency Acts, nothing in this Agreement shall create an obligation of the Department in
anticipation of an appropriation by Congress for such purpose, and the Department’s legal
liability for payments and other charges unde r this Agreement shall not arise or obtain in
advance of the lawful availability of appropriat ed funds for the applicable fiscal year as
approved by Congress. IN ACCORDANCE WITH § 446 OF THE HOME RULE ACT,
D.C. CODE § 1-204.46, NO DISTRICT OF COLUMBIA OFFICIAL IS AUTHORIZED
TO OBLIGATE OR EXPEND ANY AMOUNT UNDER THE AGREEMENT OR
CONTRACT DOCUMENTS UNLESS SUCH AMOUNT HAS BEEN APPROVED, IS
LAWFULLY AVAILABLE AND APPROPRIATED BY ACT OF CONGRESS.
15.21.1 The Department agrees to exercise all lawful authority available to it to satisfy
the financial obligations of the Department that may arise under this Agreement. During the
term of this Agreement, the Mayor of the Distri ct of Columbia or other appropriate official
shall, for each fiscal period, include in the budget application submitted to the Council of the
District of Columbia the amount necessary to fund the Department’s known potential financial
obligations under this Agreement for such fiscal period. In the event that a request for such
appropriations is excluded from the budget approved by the Council and submitted to Congress
by the President for the applicable fiscal year or if no appropriation is made by Congress to pay
any amounts due under this Agreement for an y period after the fiscal year for which
appropriations have been made, and in the event appropriated funds for such purposes are not
otherwise lawfully available, the Department will not be liable to make any payment under this
Agreement upon the expiration of any then-exi sting appropriation, the Department shall
promptly notify the Contractor and this Ag reement shall immediately terminate upon the
expiration of any then-existing appropriation.
15.21.2 Notwithstanding the foregoing, no officer, employee, director, member or
other natural person or agent of the District or De partment shall have any personal liability in
connection with the breach of the provisions of this Section or in the event of non-payment by
the Department under this Agreement.
15.21.3 This Agreement shall not constitute an indebtedness of the District and/or the
Department nor shall it constitute an obligation for which the Department is obligated to levy
or pledge any form of taxation or for which the District has levied or pledged any form of
%
*( $$+
"%&
taxation. No District of Columbia Official or employee is authorized to obligate or expend any
amount under this Agreement unless such amount has been appropriated by Act of Congress
and is lawfully available.
15.22 Time. Time, if stated in a number of days, will be calendar days and thus
include Saturdays, Sundays, and holidays, unless otherwise stated herein.
15.23 Americans With Disabilities Act of 1990 (“ADA”). During the performance
of this Contract, the Design-Builder and any of its Subcontractors shall comply with the ADA.
The ADA makes it unlawful to discriminate in employment against a qualified individual with
a disability. See 42 U.S.C. §12101 et seq.
15.24 Contracts in Excess of One Million Dollars. Any contract in excess of
$l,000,000 shall not be binding or give rise to an y claim or demand against the District until
approved by the Council of the District of Columbia and signed by the Contracting Officer.
15.25 Gratuities Not to Benefit Provisions. If it is found, after notice and hearing,
by the Department that gratuities (in the form of entertainment, gifts, payment, offers of
employment or otherwise) were offered or given by the Design-Builder , or any agent or
representative of the Design-Builder, to any official, employee or agent of the Department or
the District with a view toward securing the Agreement or any other contract or securing
favorable treatment with respect to th e awarding or amending, or the making of any
determinations with respect to the performanc e of the Agreement, the Department may, by
written notice to the Design-Builder, terminate the right of the Design-Builder to proceed under
the Agreement and may pursue such other rights and remedies provided by law and under the
Agreement.
15.25.1 In the event the Agreement is termina ted as provided in Article 16 of this
Agreement, the Department shall be entitled:
a. to pursue the same remedies against the Design-Builder as it could pursue in the event
of a breach of the Agreement by the Design-Builder; and
b. as a penalty in addition to any other damages to which it may be entitled by law, to
exemplary damages in an amount (as determined by the Department) which shall be not less
than ten times the costs incurred by the Design-Builder in providing any such gratuities.
15.25.2 No member of, nor delegate to Congress, Mayor or City Council Member, nor
the Department nor employee of the District or employee of the Department shall be admitted
to any share or part of the Agreement or to any benefit that may arise therefrom, and all
agreements entered into by the CO of the Department in which he or she be personally
interested as well as all agreements made by the Department in which the Mayor or City
Council Member or employee of the District shall be personally interested shall be void and
no payments shall be made on any such contra cts by the Department; but this provision shall
not be construed or extend to the agreement if the share of or benefit to the member of, or
delegate to Congress, Mayor or City Council Me mber, or employee of the District is de
minimis.
15.26 Ethical Standards for the Department's Employees And Former Employees.
The Department expects the Design-Builder to observe the highest ethical standards and to
comply with all applicable law, rules, and re gulations governing ethical conduct or conflicts
%
*( $$+
"%&
of interest. Neither the Design-Builder, nor an y person associated with the Design-Builder,
shall provide (or seek reimbursement for) any gift, gratuity, favor, entertainment, loan or other
thing of value to any employee of the District or the Department not in conformity with
applicable law, rules or regulations. The Design-B uilder shall not engage the services of any
person or persons in the employment of the Department or the District for any work required,
contemplated or performed under the Agreement. The Design-Builder may not assign to any
former employee or District employee or agent who has joined the Design-Builder’s firm any
matter on which the former employee, while employed by the Department, had material or
substantial involvement in the matter. The Design-Builder may request a waiver to permit the
assignment of such matters to former personnel on a case-by-case basis. The Design-Builder
shall include in every subcontract a provision substantially similar to this section so that such
provisions shall be binding upon each Design-Builder or vendor.
15.27 Non-Discrimination in Employment Provisions.
15.27.1 District of Columbia Human Rights Act
a. The Design-Builder shall not discriminate in any manner against any employee or
applicant for employment that would constitute a violation of the District of Columbia Human
Rights Act, effective December 13, 1977, as ame nded (D.C. Law 2-38; D.C. Official Code §
2-1401.01 et seq.) (“Act”, as used in this clause). The Design -Builder shall include a similar
clause in all subcontracts, except subcontra cts for standard commercial supplies or raw
materials. In addition, the Design-Builder agrees, and any subcontractor shall agree, to post in
conspicuous places, available to employees a nd applicants for employment, a notice setting
forth the provisions of this non-discrimination clause as provided in section 251 of the Act.
b. Pursuant to Mayor’s Order 85 -85, (6/10/85), Mayor’s Order 2002 -175 (10/23/02),
Mayor’s Order 2011-155 (9/9/11) and the rules of the Office of Human Rights, Chapter 11 of
Title 4 of the D.C. Municipal Regulations, the following clauses apply to the Contract:
1. The Design-Builder shall not discrimi nate against any employee or applicant
for employment because of race, color, religion, national origin, sex, age, marital status,
personal appearance, sexual orientation, family responsibilities, matriculation, political
affiliation, or physical handicap.
2. The Design-Builder agrees to take affi rmative action to ensure that applicants
are employed, and that employees are treated during employment, without regard to their race,
color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation,
family responsibilities, matriculation, politic al affiliation, or physical handicap. The
affirmative action shall include, but not be limited to, the following:
i. Employment, upgrading, or transfer;
ii. Recruitment or recruitment advertising;
iii. Demotion, layoff, or termination;
iv. Rates of pay, or other forms of compensation; and
v. Selection for training and apprenticeship.
3. Unless otherwise permitted by law and di rected by the Department, the Design-
Builder agrees to post in conspicuous places , available to employees and applicants for
employment, notices to be provided by the Department setting forth the provisions paragraphs
%
*( $$+
"%&
1 and 2 of Section 15.28.1(b) of this Agree ment, concerning non-discrimination and
affirmative action.
4. The Design-Builder shall, in all soli citations or advertisements for employees
placed by or on behalf of the Design-Builder, state that all qualified applicants will receive
consideration for employment pursuant to the non-discrimination requirements set forth in
Section 15.28.3.
5. The Design-Builder agrees to send to each labor union or representative of
workers with which it has a collective ba rgaining agreement, or other contract or
understanding, a notice to be provided by the Department, advising each labor union or
workers' representative of the Design-Builder’s commitments under this Section 15.27.1, and
shall post copies of the notice in conspicuous places available to employees and applicants for
employment.
6. The Design-Builder agrees to per mit access by the Department to all books,
records and accounts pertaining to its employ ment practices for purposes of investigation to
ascertain compliance with this Section 15.27.1 , and to require under terms of any
Subcontractor agreement each Subcontractor to permit access of the Subcontractors, books,
records, and accounts for such purposes.
7. The Design-Builder shall include in every subcontract this Section 15.27.1 so
that such provisions shall be binding upon each subcontractor or vendor.
8. The Design-Builder shall take such acti on with respect to any subcontract as
the CO may direct as a means of enforc ing these provisions, including sanctions for
noncompliance; provided, however, that in the event the Design-Builder becomes involved in,
or is threatened with, litigation with a Subcontractor or vendor as a result of such direction by
the Department, the Design-Builder may request th e District to enter into such litigation to
protect the interest of the District.
15.27.2 Pregnant Workers Fairness
a. The Design-Builder shall comply with the Protecting Pregnant Workers
Fairness Act of 2016, D.C. Official Code § 32-1231.01 et seq.( P P W F A c t ) .
b. The Design-Builder shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related medical conditions, or breastfeeding for an employee, unless the
Design-Builder can demonstrate that the accommodation would impose an undue hardship;
2. Take an adverse action against an em ployee who requests or uses a reasonable
accommodation in regard to the employee's conditions or privileges of employment, including
failing to reinstate the employee when the need for reasonable accommodations ceases to the
employee's original job or to an equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employ ee, or a job applicant, if the denial
is based on the need of the employer to make reasonable accommodations to the known
limitations related to pregnancy, childbirth, related medical conditions, or breastfeeding;
%
*( $$+
"%&
4. Require an employee affected by pre gnancy, childbirth, related medical
conditions, or breastfeeding to accept an acco mmodation that the employee chooses not to
accept if the employee does not have a known limitation related to pregnancy, childbirth,
related medical conditions, or bre astfeeding or the accommodation is not necessary for the
employee to perform her duties;
5. Require an employee to take leave if a reasonable accommodation can be
provided; or
6. Take adverse action against an employee who has been absent from work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights
in both English and Spanish and provide written notice of an employee's right to a needed
reasonable accommodation related to pregnancy, childbirth, related medical conditions, or
breastfeeding pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the employer of her pregnancy, or other condition
covered by the PPWF Act, within 10 days of the notification.
d. The Design-Builder shall provide an accurate written translation of the notice of
rights to any non-English or non-Spanish speaking employee.
e. Violations of the PPWF Act shall be subject to civil penalties as described in the
PPWF Act.
15.27.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Design-Builder shall comply with the Unemployed Anti-Discrimination Act of
2012, D.C. Official Code § 32-1361 et seq. (“Anti- Discrimination Act”).
b. The Design-Builder shall not:
1. Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an
employee because of the individual's status as unemployed; or
2. Publish, in print, on the Internet, or in any other medium, an advertisement or
announcement for any vacancy in a job for employment that includes:
i. Any provision stating or indicating that an individual's status as unemployed
disqualifies the individual for the job; or
ii. Any provision stating or indicating that an empl oyment agency will not consider or hire
an individual for employment based on that individual's status as unemployed.
c. Violations of the Unemployed Anti-Discrimi nation Act shall be subject to civil
penalties as described in the Anti- Discrimination Act.
15.28 ASSIGNMENT OF CONTRACT PAYMENTS
%
*( $$+
"%&
a. Subject to Section 15.29 of this Contract, in accordance with Title 27 DCMR
Section 3250, the Design-Builder may assign due or to become due as a result of the
performance of this Design-Builder to a bank, trust company, or other financing institution
funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement
and shall not be made to more than one party.
c. Notwithstanding an assignment of Contra ct payments, the Design-Builder, not
the assignee, is required to prepare invoices. Where such an assignment has been made, the
original copy of the invoice must refer to the a ssignment and must show that payment of the
invoice is to be made directly to the assignee as follows:
“Pursuant to the instrument of assignment dated ___________, make payment of this
invoice to (name and address of assignee).”
Section 15.29 RESERVED
Section 15.30 FREEDOM OF INFORMATION ACT (“FOIA”)
The District of Columbia Freedom of Information Act, at D.C. Official Code § 2-532 (a-
3), requires the District to make available for inspection and copying any record produced or
collected pursuant to a District contract with a private contractor to perform a public function,
to the same extent as if the record were maintained by the agency on whose behalf the contract
is made. If the Design-Builder receives a request for such information, the Design-Builder
shall immediately send the request to the PM designated in Section 1.3 of this Agreement who
will provide the request to the FOIA Officer for the agency with programmatic responsibility
in accordance with the D.C. Freedom of Informat ion Act. If the agency with programmatic
responsibility receives a request for a record maintained by the Design-Builder pursuant to the
Contract, the PM will forward a copy to the Desi gn-Builder. In either event, the Design-
Builder is required by law to provide all respons ive records to the PM within the timeframe
designated by the PM. The FOIA Officer for the agency with programmatic responsibility will
determine the releasability of the records. The District will reimburse the Design-Builder for
the costs of searching and copying the records in accordance with D.C. Official Code §2-532
and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
15.31 Nonprofit Fair Compensation Act of 2020 DC Code Section 2-222.02 et seq.
15.31.1 Nonprofit organizations, as defined in the Act, shall include in their rates the
indirect costs incurred in provision of goods or performance of services under this RFTOP
pursuant to the nonprofit organization's unexpired Negotiated Indirect Cost Rate Agreement
(“NICRA”). If a nonprofit organization does not have an unexpired NICRA, the nonprofit
organization may elect to instead include in its rates its indirect costs:
(1) As calculated using a de minimis rate of 10% of all direct costs under this Contract;
(2) By negotiating a new percentage indirect cost rate with the awarding agency;
(3) As calculated with the same percentage indirect cost rate as the nonprofit
organization negotiated with any District agency within the past 2 years; however, a
nonprofit organization may request to renegotiate indirect costs rates in accordance with
Section 15.31.2; or
%
*( $$+
"%&
(4) As calculated with a percentage rate a nd base amount, determined by a certified
public accountant, as defined in the Act, using the nonprofit organization's audited
financial statements from the immediately preceding fiscal year, pursuant to the OMB
Uniform Guidance, and certified in writing by the certified public accountant.
15.31.2 If this Contract is funded by a federal agency, indirect costs shall be consistent
with the requirements for pass-through entities in 2 C.F.R. § 200.331, or any successor
regulations.
15.31.3 The Contractor shall pay its subcontract ors which are nonprofit organizations
the same indirect cost rates as the nonprofit o rganization subcontractors would have received
as a prime contractor.
15.32 Campaign Finance Reform Act
Prior to the execution of this Contract, the Design-Builder shall complete and submit to
the Department a completed Campaign Finance Reform Act Self-Certification Form, Exhibit
AA, pursuant to D.C. Official Code § 1-1161.01.
%
*( $$+
"%&
ARTICLE 16- TERMINATION OR SUSPENSION
16.1 All terminations or suspensions arising out of or under this Agreement shall be
in accordance with the terms of the Standard Contract Provisions (Construction Contracts and
Architectural/Engineering Services Contracts).
16.2 Failure to Agree Upon GMP . The Department shall have the right to terminate
this Agreement in the event that the Department and the Design-Builder are unable to agree
upon a GMP for the Project and the Department shall have the right, but not the obligation, to
assume any of the Design-Builder ’s trade subcontracts upon such terms and conditions as
requested by the Department. The Department’s decision to terminate under this Section shall
be made in the Department’s sole and absolute judgment and shall not be subject to review by
any reviewing body, including, but not limited to, a rbitrators appointed under this Agreement
or any court of competent jurisdiction.
16.3 Termination for Default . The Department may terminate the Agreement for
default if the Design-Builder fails to pe rform any of its duties or obligations under the
Agreement. In particular, but without limitation, the Department may terminate the Agreement
if:
16.3.1 The Design-Builder fails to perform the Work diligently, in accordance with the
Project Schedule or to make such progress in the Work as the Department reasonably believes
is necessary to complete the Project within the time required by the Agreement; or
16.3.2 The Design-Builder fails to perform the Work in a good and workmanlike
manner or to correct defects in the Work promptly upon notice by the Department; or
16.3.3 The Department reasonably determines that the Design-Builder has abandoned
the Work, or has failed to pay laborers, mec hanics, materialmen, Subcontractors or suppliers
when payment is due; or
16.3.4 The Design-Builder becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition under any chapter of the Bankruptcy Code or has an
involuntary petition filed against it under any chapter of the Bankruptcy Code, or the Design-
Builder has a receiver appointed, or files for dissolution or otherwise is dissolved; or
16.3.5 The Design-Builder fails to pay its debts in a timely manner or becomes
insolvent, the Department reasonably determine s that the Design-Builder does not have the
financial ability to carry out its obligations unde r the Agreement and the Design-Builder fails
to give the Department prompt and reasonable assurances of its ability to perform.
16.3.6 The Department shall provide the Design -Builder with written notice of its
intent to terminate the Agreement, under this Section.
16.3.7 If the Department terminates the Agree ment for default, the Department will
have the right to take over the Work, to ac cept assignment of some or all Subcontracts or
agreements with material suppliers, to take possession of the Project, to take and use all tools,
%
*( $$+
"%&
equipment and supplies then being used in connection with the Work, and to finish the Project
by whatever method it deems expedient, incl uding accepting assignment of all outstanding
Subcontracts and Supply Agreements.
16.4 Termination for Convenience . The Department may terminate the Contract in
whole or specified part, for its convenience, for any reason. The notice of termination shall
state the effective date of termination, the extent of the termination, and any specific
instructions. The termination for convenience that arises out of or under this Agreement shall
be in accordance with the terms of the Sta ndard Contract Provisions (Construction Contracts
and Architectural/Engineering Services Contracts).
16.5 Continued Responsibility After Termination . If the Design-Builder is
terminated, for default, for Convenience or otherwise, the Design-Builder shall remain
responsible for defects or non-conformities in all Work performed to the date of the
termination.
%
*( $$+
"%&
ARTICLE 17 – OTHER CONDITIONS AND SERVICES
This Agreement and the rights and obligati ons of the Department and Design-Builder
herein are subject to the approval of the Council for the District of Columbia.
ARTICLE 18 – CHANGES IN THE WORK
18.1 Changes Authorized. In accordance with the S tandard Contract Provisions
(Construction Contracts, and Architectural and Engineering Services Contracts), the
Department may, without invalidating the Agreement, and without notice to or approval of any
surety, order changes in the W ork, including additions, deletions or modifications. Any such
change must be conveyed by th e Department to the Design -Builder via written Change
Directive or Change Order.
18.2 Executed Change Directive/Change Order Required. Only a written Change
Directive or Change Order, executed by the Department ’s Contracting Officer , may make
changes to the Agreement. In particular, but without limitation, a written Change Directive or
Change Order executed by the Department ’s Contracting Officer is the only means by which
changes may be made to the Substantial or Fin al Completion Dates, the Design-Build Fee, or
the Guaranteed Maximum Price.
18.3 Department-Initiated Changes
18.3.1 If the Department wishes to make a cha nge in the Work or to accelerate the
Work, it will execute and issue to the Design-B uilder a written Change Directive, either
directing the Design-Builder to proceed at once with the changed Work or directing it to not to
proceed, but to inform the Department, in writing, of the amount, if any, by which the Design-
Builder believes that Substantial or Final Completion Dates and/or the Guaranteed Maximum
Price should be adjusted to take the Change Order or Change Directive into account.
18.3.2 Within ten (10) days of receiving a Change Directive, the Design-Builder shall
provide the Department with a written statement of all changes in the Agreement, including,
without limitation, any changes to the Substantial or Final Completion Dates or the Guaranteed
Maximum Price to which it believes it is entitl ed as a result of the Change Directive. If
additional time is sought, a schedule analysis supporting the requested extension should be
included. The schedule analysis should include a written narrative explanation. If a change in
the Guaranteed Maximum Price is sought (or if the Department has requested a deduct change),
the statement should include a breakdown, by li ne item, of the estimated cost changes
attributable to the proposed change. The Department may request, and the Design-Builder shall
provide, further cost breakdowns, clarificati ons, project documentation or back-up if the
Department reasonably believes such addi tional information is needed to understand and
evaluate the request. The additional information required may include cost and pricing data in
accordance with the Department’s regulations. Any requested adjustment to the Guaranteed
Maximum Price shall be limited to increased Co st of the Work due to the Change Directive.
The Design-Builder is not enti tled to any markup on any kind of Change Orders except as
authorized in Section 18.8, and if so authorized , any mark-up shall be in accordance with
Section 18.11.
18.3.3 If the Department has not yet directed the Design-Builder to proceed with the
change described by a Change Di rective, the Department may re scind it. If the Department
%
*( $$+
"%&
wishes to proceed, or has already directed the Design-Builder to proceed, the Design-Builder
shall immediately proceed with the changed Work and, the Department and the Design-Builder
shall use their good faith best efforts to reac h an agreement upon the modifications to the
Substantial or Final Completion Dates, and/or the Guaranteed Maximum Price that are justified
by the Change Directive. If the Department and the Design-Builder reach agreement, the
agreement shall be set forth in a Change Order and the Design-Builder shall also execute it, at
which point it will become binding on both Parties.
18.3.4 If the Parties fail to reach an agre ement within sixty (60) days after the
Department receives the Design- Builder’s detailed statement pursuant to Section 1 8.3.2, and
such other project documentation as the Depa rtment may request, the Design-Builder may
assert a claim in accordance with the Agreement. In such a case, and subject to adjustment via
the claims and disputes process, the Department shall unilaterally grant the Design-Builder
such adjustments, if any, to the Substantial or Final Completion Dates, the Guaranteed
Maximum Price, and/or the Preconstruction or Design-Build Fee as the Department has judged
to be appropriate.
18.4 Notice of Change Event. The Design-Builder must give the Department
written notice of any Change Event within ten (10) calendar days of the date on which the
Design-Builder knew, or reasonably should have known, of the Change Event. To the extent
available, the notice must state the nature of the Change Event and de scribe, generally, all
changes in the Agreement to which the Design-Build er believes it is enti tled. Such notice is
an express condition precedent to any claim or request for adjustment to the Substantial or Final
Completion Dates, or the Guaranteed Maximum Pr ice arising from the Change Event and, if
the notice is not given within the required time, the Design-Builder will have waived the right
to any adjustment to the Substantial or Final Completion Dates, or the Guaranteed Maximum
Price arising from the Change Event.
18.5 Detailed Change Request. Within twenty (20) days after giving notice of a
Change Event, the Design-Builder shall submit a written Change Reque st to the Department
describing, in reasonable detail, all adjustments it seeks to the Substantial or Final Completion
Dates or the Guaranteed Maximum Price as a result of the Change Event. The Change Request
shall include the same information as described in Section 18.3 with respect to any Agreement
changes the Design-Builder seeks due to the Ch ange Event, and the amount of any requested
adjustment to the Guaranteed Maximum Price shall be limited in accordance with that Section
18.3.
18.6 Changes to GMP. Subject to the condition precedent that the Design-Builder
have complied with the notice and documentation provisions of this Article, and subject to the
limitations stated in this Agreement, the Design-B uilder is entitled to an adjustment to the
Guaranteed Maximum Price in the following cases:
18.6.1 If the Department issues a Change Di rective or Change Or der that directs the
Design-Builder to proceed with work which is beyond the scope of Work included within this
Agreement; or
18.6.2 The Design-Builder encounters differing site conditions or Hazardous Materials
not identified in the Preconstruction Phase.
%
*( $$+
"%&
18.7 Deductive Change Orders. The Department reserves the right to issue
deductive Change Orders (reducing the Guaranteed Maximum Price or modifying the
Substantial or Final Completion Dates to an earlier date) when changes are effected, by Change
Directive or otherwise, which will decrease the cost of completing the Work or the time within
which it can be completed.
18.8 No Adjustments to Fee. The Design-Builder understands and agrees that the
Design-Build Fee shall not be increased or decr eased as a result of any Change Orders or
Change Directive. In furtherance of this understanding, the Design-Builder agrees that it shall
not be entitled to an increase in the Maximum Cost of General Conditions, or the Design-Build
Fee by virtue of changes authorized by the Depart ment unless such changes fall outside the
general scope of work contemplated by this Agreement. The term general scope of work shall
mean a state-of-the- art recreation center facility that is consistent with the Department’s
program of requirements and incorporates sustainable design initiatives. Without limiting the
generality of the foregoing, it is understood and agreed that the Design-Builder shall not be
entitled to any additional fees or general conditions unless (i) the Department makes additions
to the scope provided for in this Agreement that cause the GMP, either individually or in the
aggregate, to increase by more than ten percent (10%); or (ii) the Department makes additions
to the scope provided for herein which (other than for punchlist or warranty work) require the
Design-Builder’s services for the Project to extend beyond the Substantial Completion Date.
18.9 Executed Change Orders or Contract Modifications are Final. The Design-
Builder agrees that any Change Order or Contract Modification executed by the Department
and Design-Builder constitutes its full and fina l adjustment for all costs, delays, disruptions,
inefficiencies, accelerations, schedule impacts, or other consequences arising from the change
modification in question, whether a Change Directive, or a Change Event, or from any claimed
cumulative effect of changes made to the date of the Change Order or Contract Modification,
and that no further adjustments in compensation or time shall be sought or made with respect
to the Change Directive or the Change Event gi ving rise to the Change Order or Contract
Modification. Although the Parties anticipate that most Change Orders or Contract
Modifications will not require an adjustment to the Cost of General Conditions, if the Work
described in a Change Order or Contract Modi fication requires an increase or decrease in the
Maximum Cost of General Conditions (i.e. beca use such a Change requires additional field
staff or other equipment that would be classifi ed as General Conditions Costs), the Change
Order or Contract Modification shall contain an increase to the Design-Build Fee adjusting
such amount. The cost of processing a Change Or der or Contract Modification shall not be
considered an event that will require an increase in the Maximum Cost of General Conditions.
18.10 Failure to Agree. If the Design-Builder claims entitlement to a change in the
Agreement, and the Department does not agree that any action or event has occurred to justify
any change in time or compensation, or if the Parties fail to agree upon the appropriate amount
of the adjustment in time or compensation, the Department will unilaterally make such changes,
if any, to the Agreement, as it determines are appropriate pursuant to the Agreement. The
Design-Builder shall proceed with the Work and the Department's directives, without
interruption or delay, and shall make a claim as provided in Article 18 herein. Failure to
proceed due to a dispute over a change request shall constitute a material breach of the Contract
and entitle the Department to all availab le remedies for such breach, including, without
limitation, termination for default.
%
*( $$+
"%&
18.11 Mark-Up on Trade Work. The maximum mark up for Change Order work
shall be as follows:
18.11.1 Intervening tier Subcontractors shall be en titled to a mark-up of five percent
(5%) (Covering home office overhead, the cost of insurance and bonds, field supervision,
general conditions and profit) on Work Performed by lower-tier Subcontractors;
18.11.2 To the extent permitted by Section 18.8, the Design-Builder shall be entitled to
an increase in its Design-Build Fee at a maximum rate of 2% on work performed by
Subcontractors. Such markup shall cover the same cost elements that were included in the
Design-Build Fee;
19 Direct Cost of the Work shall include, but not be limited to: (Direct Cost of the
Work does not, however, include home office overhead, field supervision, general conditions
or profit of either the Subcontractor or the Design-Builder. No personnel above the level of a
working foreman shall be considered a Direct Cost of the Work).
(a) Labor. Payment will be made for direct labor cost plus indirect labor
cost such as insurance, taxes, fringe benefits and welfare provided such
costs are considered reasonable. Indi rect costs shall be itemized and
verified by receipted invoices. If veri fication is not possible, up to five
percent (5%) of direct labor costs may be allowed.
(b) Rented Equipment . Payment for required equipment rented from an
outside company that is neither an affiliate of, nor a subsidiary of, the
Design-Builder will be based on receipted invoices which shall not
exceed rates given in the current edition of the Rental Rate Blue Book
for Construction Equipment. published by Data Quest. If actual rental
rates exceed manual rates, written justification shall be furnished to the
Contracting Officer for consideration. No additional allowance will be
made for overhead and profit. The Design-Builder shall submit written
certification to the Contracting Officer that any required rented
equipment is neither owned by nor rented from the Design-Builder or an
affiliate of or subsidiary of the Design-Builder.
(c) Design-Builder’s Equipment. Payment for required equipment owned
by the Design-Builder or an affiliate of the Design-Builder will be based
solely on an hourly rate derived by dividing the current appropriate
monthly rate by 176 hours. No payment will be made under any
circumstances for repair costs, freight and transportation charges, fuel,
lubricants, insurance, any other costs and expenses, or overhead and
profit. Payment for such equipment made idle by delays attributable to
the Government will be based on one-half the derived hourly rate under
this subsection.
(d) Materials. Incorporated and unincorporated materials as permitted
under Section 9.1.
%
*( $$+
"%&
ARTICLE 19 – CLAIMS & DISPUTE RESOLUTION
All claims or disputes arising out of this Agreement shall be governed by the terms of the
Standard Contract Provisions for Construction contracts (Exhibit J1 ) Architectural and
Engineering Services and Contract (Exhibit J2).
ARTICLE 20 – EXHIBITS
Exhibit A Fletcher Johnson Project Specific Exhibits
Exhibit A1 Master Plan
Exhibit A2 Proposed Phasing Plan
Exhibit A3 RESERVED
Exhibit A4 Proposed Parcel A Site Plan
Exhibit A5 DDOT Gold Book
Exhibit A6 Sample Horizontal Use Agreement
Exhibit B Project Schedule
Exhibit C Deliverable List
Exhibit D SBE Subcontracting Plan
Exhibit E Reserved
Exhibit F Key Personnel
Exhibit G1 Davis Bacon Act Wage Determination and
Title 29 Code of Federal Regulations
Exhibit G2 Service Contract Act Wage Determination
Exhibit H Design- Builder’s Designated Representatives
Exhibit I Department’s Designated Representatives and Contracting Officers
Exhibit J1 Standard Contract Provisions (Construction Contracts)
Exhibit J2Standard Contract Provisions (Architecture/Engineering Contracts)
Exhibit K Release of Lien
Exhibit L Reserved
Exhibit M Form of GMP Amendment
Exhibit N Subcontractor Performance Evaluation Form
Exhibit O Equal Employment Opportunity Policy
Exhibit P Living Wage Act
Exhibit Q Award Fee Pool
Exhibit R Reserved
Exhibit S DGS Close Out Manual
Exhibit T Quality Control Master Program
Exhibit U First Source Employment Agreement
Exhibit V Ineligible Item
Exhibit W List of Drawings and Specifications
Exhibit X List of Unit Price and Allowances
Exhibit Y GMP Price Breakdown
Exhibit Z Assumptions and Clarifications
Exhibit AA Contractor Self Certification
IN WITNESS WHEREOF, the Parties have executed this Agreement (DCAM-24-CS-RFP-
0016) through their duly authorized representatives and effective as of the last date written
below.
DEPARTMENT OF GENERAL SERVICES, FORT MYER CONSTRUCION
an agency within the executive branch CORPORATION
%
*( $$+
"%&
of the Government of the District of Columbia
By: By:
Name: Name:
Title: Title:
Date: Date:
%
*( $$+
"%&
'
(
$)() #) $ '%!
)
" +
',
#)
"
James H. Marshall
Contracting Officer
September 30, 2025
%
*( $$+
"%&