Chapter Section Revision

Publication 442 - Specifications for Consultant Agreements for Project Development Services(2019 Revisions)ChapterSectionRevisionChapter 2Agreement AdministrationChapter 1GeneralPreamble10/28/2019No change1.1IntroductionNo change1.2ApplicabilityNo change1.3DefinitionsNo change1.4Consultant OfficeNo change1.5Certificate of AuthorityNo change1.6Federal FundsNo change1.7Disadvantaged Business Enterprise (DBE) ProgramAssuranceNo change1.8Diverse BusinessGender Neutral Policy2.1Project ManagerGender Neutral Policy2.22.32.42.52.6Inspection and Quality of Work and ServicesConsultant Qualification PackageQuality of Consultant PersonnelRestrictions on EmploymentContacting Agencies, Utilities or IndividualsNo changeNo changeGender Neutral PolicyNo changeNo change2.7Notice of Intent to Enter PropertyNo change2.8Agreement AssignmentNo change2.9Good Faith Acceptance of Consultant’s ProposalNo change2.10Scope ConflictNo change2.11Notice to ProceedNo change2.12Management of Project CostsGender Neutral Policy2.13Date of AcceptanceNo change2.142.15Acceptance of Final PaymentConsultant Evaluation/Past Performance ReportNo changeNo changePage 1 of 3

Publication 442 - Specifications for Consultant Agreements for Project Development Services(2019 Revisions)Chapter 5Design Errors and ClaimsChapter 4InvoicesChapter 3Agreement Terms and ConditionsChapter10/28/2019SectionRevision3.1Save Harmless ClauseNo change3.2Contract Suspension and CancellationNo change3.3Violation or Breach of ContractNo change3.4Ownership of Material and Work3.5Cost Elements for Consultant Agreements3.6Proposed Project EmployeesNo changeFHWA evaluated and tested Safe HarborOverhead Rate policy added and field ProForma overhead rate policy revised.Reference to Publication 93 Appendix 3D(PEC) removed. Three decimal calculationrequirement. ECMS overhead submissionrequirement.No change3.7Agreement PerformanceNo change3.8Transfer of Electronic DataNo change3.93.103.113.123.133.14Overpayment and Non-Eligible CostsCosts Incurred Outside the Legal AgreementOvertimePublication 408 SpecificationsNo Third-Party Rights CreatedRight to Know LawNo changeNo changeNo changeNo changeNo changeNo change3.15Records and DocumentationNo change4.1Partial PaymentsNo change4.2Monitoring of CostsNo change4.3Final InvoiceNo change4.4Prompt Payment of Subconsultant/Subcontractor Invoices No change4.54.6Invoice TemplateManagement Directive 230.10No changeNo change5.1Consultant Design Error LiabilityNo change5.2Responsibility for Design ErrorsNo change5.3Board of ClaimsNo change5.4Notice of Intent to File a Claim and Determination ofClaimNo changePage 2 of 3

Publication 442 - Specifications for Consultant Agreements for Project Development Services(2019 Revisions)Chapter 7American Recovery andReinvestment Act (ARRA) of2009Chapter ision6.16.26.3Disclosure of Confidential InformationLegal or Quasi-Legal ProceedingsEngineering Involvement RestrictionsNo changeNo changeNo change6.4Conflicts of InterestNo change7.1ApplicabilityNo change7.2ARRA Section 902No change7.3ARRA Section 1515 (a)No change7.4Implementation of the American Recovery andReinvestment Act of 2009No changePage 3 of 3

Publication 442Specifications forConsultant AgreementsforProject DevelopmentServicesPrepared by:Pennsylvania Department of TransportationBureau of Project DeliveryHighway Delivery DivisionContract Management SectionPUB 442 (11-19)

Publication 442 (11-19)Table of ContentsPreamble1.0General . 1.11.11.21.31.41.51.61.71.82.0Agreement Administration . 2.153.0Introduction .1.1Applicability . 1.1Definitions . 1.1Consultant Office. 1.2Certificate of Authority . 1.2Federal Funds . 1.2Disadvantaged Business Enterprise (DBE) Program Assurance . 1.3Diverse Business Participation for Non-Federally Funded Projects . 1.3Project Manager . 2.1Inspection and Quality of Work and Services . 2.1Consultant Qualification Package . 2.1Quality of Consultant Personnel . 2.2Restrictions on Employment . 2.2Contacting Agencies, Utilities or Individuals . 2.2Notice of Intent to Enter Property. 2.2Agreement Assignment . 2.2Good Faith Acceptance of Consultant’s Proposal . 2.3Scope Conflict . 2.3Notice to Proceed. 2.3Management of Project Costs . 2.4Date of Acceptance . 2.4Acceptance of Final Payment . 2.4Consultant Evaluation/Past Performance Report . 2.4Agreement Terms and Conditions . 3.15Save Harmless Clause. 3.1Contract Suspension and Cancellation . 3.1Violation or Breach of Contract . 3.3Ownership of Material and Work. 3.3Cost Elements for Consultant Agreements . 3.4Proposed Project Employees . 3.9Agreement Performance . 3.9Transfer of Electronic Data . 3.9Overpayment and Non-Eligible Costs . 3.12Costs Incurred Outside the Legal Agreement . 3.12Overtime . 3.13Publication 408 Specifications . 3.13No Third-Party Rights Created . 3.13Right to Know Law . 3.13Records and Documentation . 3.14i

Publication 442 (11-19)4.0Invoices . 4.14.14.24.34.44.54.65.0Design Errors and Claims . 5.15.15.25.35.46.0Consultant Design Error Liability. 5.1Responsibility for Design Errors . 5.1Board of Claims. 5.2Notice of Intent to File a Claim and Determination of Claim . 5.2Consultant Restrictions .6.16.16.26.36.47.0Partial Payments . 4.1Monitoring of Costs . 4.2Final Invoice . 4.2Prompt Payment of Subconsultant/Subcontractor Invoices . 4.3Invoice Template . 4.3Management Directive 230.10 . 4.4Disclosure of Confidential Information . 6.1Legal or Quasi-Legal Proceedings. 6.1Engineering Involvement Restrictions . 6.1Conflict of Interest . 6.6American Recovery and Reinvestment Act (ARRA) of 2009 . 7.17.17.27.37.4Applicability . 7.1ARRA Section 902 . 7.1ARRA Section 1515 (a) . 7.1Implementation of the American Recovery and Reinvestment Act of 2009. 7.2ii

Publication 442 (11-19)PreambleCode of EthicsThe Consultants will conduct themselves in an ethical manner by adhering to the current National Societyof Professional Engineers (NSPE) Code of Ethics. The current NSPE Code of Ethics for Engineers islocated on the internet at .iii

Publication 442 (11-19)Chapter 1 – General1.1IntroductionThese specifications, contract provisions, and policies apply to the Prime Consultant andall subconsultants.The Prime consultant is responsible for ensuring that all subconsultants adhere to allPennDOT contract provisions, specifications and policies.1.2ApplicabilityIt is understood and agreed that, unless otherwise indicated in writing in an executedConsultant Agreement, the specifications hereinafter set forth apply to and become a partof all Consultant Agreements required to assist PennDOT in the development andconstruction of a transportation improvement project and any parts thereof as provided bylaw.1.3DefinitionsPrime Consultant - The contractual party providing Consultant Work and Servicespursuant to the Agreement with the Department.Subconsultant/Subcontractor - The party providing work and services to the PrimeConsultant (which is providing Consultant Work and Services pursuant to an agreementwith the Commonwealth) pursuant to an Agreement with the Prime Consultant to which theDepartment is not a party.Consultant – Within this publication, unless otherwise specified, this term will apply to bothconsultant and subconsultant.PennDOT - The Pennsylvania Department of Transportation acting through the Secretaryof Transportation or designee.FHWA – Federal Highway AdministrationECMS – Engineering and Construction Management SystemResponsible Charge - An individual position that requires initiative, skill and independentjudgment, and implies such degree of competence and accountability gained by technicaleducation and experience of a grade and character as is sufficient to qualify the individualto personally and independently engage in and be entrusted with the work involved.Professional Engineer - An individual licensed and registered under the laws of theCommonwealth of Pennsylvania (Commonwealth) to engage in the practice ofengineering.Professional Land Surveyor - An individual licensed and registered under the laws of theCommonwealth to engage in the practice of land surveying.Professional Geologist - An individual licensed and registered under the laws of theCommonwealth to engage in the practice of geology.Chapter 1 GeneralPage 1.1

Publication 442 (11-19)Employee - An individual who is on a firm's payroll and for whom taxes are withheld andSocial Security is withheld and matched.Engineering Firm/Corporation (Engineer) - A firm or corporation, where the directingheads and employees of such firm or corporation, in responsible charge of its activities inthe practice of engineering, are licensed and registered in conformity with theCommonwealth's "Engineer, Land Surveyor and Geologists Registration Law," Act of 1945,P.L. 913, No. 367, as amended, 63 P.S. Sections 148—158.2.1.4Consultant OfficeA. The Consultant shall maintain, for the life of the Agreement, a legal address within theCommonwealth through which notices or messages can be transmitted for action in casesof emergency. The address information must also be maintained in PennDOT'sEngineering and Construction Management System (ECMS) Business PartnerRegistration.B. The Consultant shall notify PennDOT immediately after the receipt of the executedAgreement of any change in the location or locations where the work will be performed aswell as the type and approximate percentage of the work to be accomplished at eachlocation.The Consultant shall obtain prior written approval of PennDOT's Project Manager for anysubsequent change in work location.C. If the Consultant elects to perform any or all the work at a location outside theCommonwealth, the Consultant shall not be reimbursed for either Direct or Indirect Costsof the travel, food or lodging of the Consultant or its employees to or from the location orfrom locations outside the Commonwealth to any office in Pennsylvania designated forrequired conferences and/or inspection of the work by PennDOT and/or the FederalHighway Administration (FHWA).1.5Certificate of AuthorityThe Consultant shall obtain a Certificate of Authority from the Pennsylvania Department ofState authorizing the Consultant to do business in Pennsylvania if the Consultant isconducting business as:A.B.1.6A Corporation not incorporated under the laws of Pennsylvania;A business with headquarters within or outside the Commonwealth and operatingunder a fictitious name.Federal FundsIf funds are provided by the FHWA for participation in the cost of this Agreement, the workand services to be provided by the Consultant, as set forth in this Agreement, will be subjectto and will be governed by the requirements of PennDOT’s Specifications.Public Law 101-121, Section 319, prohibits Federal funds from being expended by therecipient or any lower tier sub-recipients of the Federal contract, grant, loan or cooperativeagreement to pay any person for influencing or attempting to influence a Federal agencyor Congress in connection with the awarding of any Federal contract, the making of anyFederal grant or loan, or the entering into of any cooperative agreement.Chapter 1 GeneralPage 1.2