Category:107 Legal Relations and Responsibility to the Public

This article provides guidelines for employee conduct with contractors and the public and employee stewardship of government property. Absolute integrity of all department personnel is essential if public confidence in MoDOT is to be maintained. Integrity must rule everything that touches a person's job performance: resourcefulness, decision, adaptability, stability, forcefulness, moral courage and tenacity. Legal relations between contractors and MoDOT and their responsibility to the public are detailed in Sec 107.

107.1 Laws to be Observed

107.1.1 Employment Outside of MoDOT

It is not desirable for MoDOT personnel to engage in outside work. They may, however, do so providing it does not interfere with their department job and does not involve work or business with or for firms and persons or agencies doing business with MoDOT.

107.1.2 Political Activity (Hatch Act)

By virtue of the use of Federal-Aid funds for highway construction by MoDOT, employees are subject to provisions of the Hatch Act, a federal law concerning political activity. A portion of this law is quoted below: "Title 5 (Section 118K) Hatch Act. No officer or employee of any state or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any federal agency shall (1) use his official authority or influence for the purpose of interfering with an election or a nomination for office or affecting the result thereof, or (2) directly or indirectly coerce, attempt to coerce, command or advise any other such officer or employee to pay, lend, or contribute any part of his salary or compensation or anything else of value to any party, committee, organization, agency or person for political purposes. No such official or employee shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates."

107.1.3 Relations with Contractors

No one in MoDOT whose job involves negotiating, approving or administering any contract or transaction on behalf of MoDOT may have any financial or personal interest, either directly or indirectly, in the project. The solicitation or acceptance of a cash loan by a MoDOT employee from any contractor or contractor's representative doing business with the department is an example of serious conflict of interest and is a felony crime by Missouri State Statute. Any dishonesty or serious conflict of interest will result in immediate dismissal of the person or persons involved.

107.2 Permits, Licenses and Taxes

Sec 107.2 provides information on the contractor’s responsibility for permits, licenses and taxes.

Materials purchased for use on the project may be exempt from sales tax. The documentation covering this is included in the executed contract.

107.3 Patented or Copyrighted Devices, Material and Processes

Sec 107.3 provides information on the contractor’s responsibility for patented or copyrighted devices, materials and processes.

107.4 Safety and Sanitary Provisions

Sec 107.4 provides information on the contractor’s responsibility for safety and sanitary provisions. Sec 616.3.1 provides information on the high visibility safety apparel required on the construction site.

107.5 Public Convenience and Safety

Sec 107.5 provides information on the contractor’s responsibility to avoid obstructions to traffic and to access to various features in and along the project site.

Temporary Surfacing

One item that can greatly reduce public inconvenience during construction is placement of temporary surfacing. If work is ceasing for the winter months and traffic must use crossroads and approaches, every effort must be made to anticipate these locations and authorize use of temporary surfacing before they become problem areas.

The contract will provide a quantity of temporary surfacing estimated to be adequate for the project. However, the Resident Engineer may authorize placement of needed additional temporary surfacing. A change order should be prepared promptly to provide payment for the anticipated overrun in quantity.

If the contract contains special provisions that provide for placement by the contractor of surfacing for temporary use under conditions different from standard specifications, such provisions will govern since these instructions cannot revise the contract.

107.6 Bridges over Navigable Waters

Sec 107.6 provides information on the contractor’s responsibility with regard to bridges over navigable waters, and the agencies with authority in this area.

107.7 Use of Explosives

Sec 107.7 provides information on the contractor’s responsibility with regard to explosives used on the project, and the blasters, blaster certification, and other related requirements.

It is the contractor’s responsibility to determine which agencies have authority over blasting at any location and to obtain any required permits, approvals, or documentation prior to the work.

107.8 Preservation of Monuments and Artifacts

Sec 107.8 provides information on the contractor’s responsibility with regard to the preservation of monuments, such as survey markers, and artifacts, such as archaeological remains.

107.9 Forest and Park Protection

Sec 107.9 provides information on the contractor’s responsibility when the project is within or adjacent to forests or parks.

107.10 Environmental Protection

Sec 107.10 provides information on the contractor’s responsibility to protect the environment.

107.10.1 Permits

It is important to note that adherence to the conditions established in the permit issued by the US Army Corps of Engineers (COE) is critical. These conditions are included in the bid proposal and therefore must be followed during construction. Bridge and roadway construction in a floodplain, wetland, or over a defined waterway will require one or more permits. Know the conditions of the permits.

All applicable permits and certification conditions are included in the construction project proposal. All permits require compliance certification upon completion of construction or maintenance activities. The conditions of the permit must also be followed for maintenance activities.

The permits require a certification, signed by a MoDOT official, stating the project was constructed in accordance with the permit conditions. It is suggested the Resident Engineer or the District Construction and Materials Engineer discuss compliance with these permit conditions with the environmental studies coordinator prior to signing this certification and then submit it to the COE upon project completion.

The permit indicates the streams, wetlands, temporary crossings (including pipes), work pads and other construction requirements necessary to complete the project. This information should also be reflected on the plans and in a job special provision. This provides the contractor with the necessary information to prepare their bid.

During construction of the project, the environmental studies coordinator, Design, should be contacted to ensure adherence to the permit conditions and to assist in the resolution of questions raised by regulatory agencies.

107.10.2 Section 404 Permits

The U.S.Army Corps of Engineers (COE) has jurisdiction over wetlands and waters of the United States.

A Section 404 Permit is required for construction or maintenance activities within jurisdictional waters of the United States or if material is placed or removed in a wetland even if no stream is crossed. A COE permit must be received prior to the commencement of any such activities.

If any doubt exists whether a permit is required for a location or if mitigation for a site is required, the wetlands coordinator of Design Division should be contacted for assistance. Requirements for Section 404 Permits are set by the COE and are changed frequently.

107.10.3 State Operating Permit

The National Pollution Discharge Elimination System (NPDES) provides the legal authority and basis for DNR’s General Storm Water Permit. Since March 2003, all projects with an acre or more disturbed acreage fall within the regulatory umbrella of this permit. A quarterly DNR Erodible Acreage Report listing projects with 1 acre or more disturbed acreage is required. The reported erodible acreage data is updated during the preparation of the estimate for inclusion in the report.

Prohibited acts of the NPDES permit are: to cause pollution of streams, to “put or place” pollutants in the proximity of streams, to exceed general or specific water quality criteria or to exceed the allowed permit limits.

The permit requires inspections to be conducted weekly or within 48 hours of a heavy rain event, which is defined as a half inch over any 24-hour period. An illustration of the inspection record is available.

A copy of the DNR’s General Storm Water Permit and MoDOT’s Storm Water Prevention Plan (SWPPP) and copies of the inspection reports should be kept at the project site.

In the event of an inspection by State or Federal regulatory agencies, a report and summary of discussions should be forwarded to the State Construction and Materials Engineer to assist with any possible violation mitigation.

107.10.4 Contractor Borrow Sites

Prior authorization or waiver is necessary. Clearances for Section 106/Cultural Resources, Hazardous Waste, Storm Water Permit / NPDES (DNR), Endangered Species (Missouri Department of Conservation – MDC), Wetlands (COE), or Farmland Conversion (US Department of Agriculture) must be cleared. Previous environmental clearances will facilitate approval.

107.10.5 Contractor Erosion Control Plan

Sec 806 sets forth the contract requirements for erosion control on active projects. Detailed guidance for those installing and inspecting erosion control measures can be found in EPG 806 Pollution, Erosion and Sediment Control.

107.10.6 Individual Wastewater Lagoon Closures

Wastewater treatment facilities (lagoons) acquired by MoDOT may be under the authority of an operating permit per 10 CSR 20-6.010(5) (discharges to waters of the state) or 10 CSR 20-6.015(2) (no-discharge facilities). In accordance with 10 CSR 20-6.010(12) Closure of Treatment Facilities, "Persons who cease operation or plan to cease operation of waste, wastewater, and sludge handling and treatment facilities shall close the facilities in accordance with a closure plan approved by the department." In accordance with 10 CSR 20-6.015(5)(A)1 Closure of Waste Storage Area, "Facilities which cease operation shall continue to maintain a valid operating permit until all lagoons and waste storage structures are properly closed according to a closure plan approved by the department;"

107.10.7 Restrictions for Distributor Trucks and Tankers Parked on MoDOT Property

Refer to Sec 107.10.4.

107.11 Responsibility for Claims for Damage or Injury

Sec 107.11 provides information on the contractor’s responsibility when the project is within or adjacent to forests or parks.

Public Vehicle Damage Claims

The contractor has legally assumed custody and liability for maintaining safe travel through the project when a section of roadway is actively under contract. MoDOT’s role is to make sure that the contractor is performing professionally, timely and appropriately to developing roadway deterioration issues and any public concerns and/or damage claims. We do not have the right to "force" the contractor to pay claims that they have fully reviewed and elect to deny. We do need to make sure the public is being treated fairly and professionally. Blanket denial letters are unacceptable. The public has a right to know the specifics associated with a denial of their claim.

If a vehicle is damaged in a work zone the public has four options: 1) file a claim with their insurance carrier, 2) file a claim with the contractor or its insurance carrier, 3) pursue legal remedies against the contractor and 4) pay for repairs themselves.

MoDOT’s goal is to have the contractor provide a roadway without defects so that it is safe and vehicle damage should not occur. If the existing roadway is in very poor condition it should be addressed before the contract is awarded if possible. MoDOT should make all appropriate repairs up front or reimburse the contractor for needed repairs before work begins. It would then be the contractor's responsibility to keep the roadway properly maintained for the safety of the traveling public. Please continue to assist the public and be responsive to their concerns.

107.12 Contractor's Responsibility for Work

Per Sec 107.12, the contractor shall be in custody and care of the work until the engineer designates acceptance of the work for maintenance (i.e., Partial Acceptance, which occurs after Final Inspection, or sometimes earlier upon request from the contractor). Payments made by the Commission for work performed does not constitute acceptance (Partial or Final). Sec 105.15 defines the requirements necessary to achieve Partial and Final acceptance.

Payment for repair of completed work that has not been partially accepted, but has been damaged by unforeseeable causes, is extremely rare. The Resident Engineer should forward any such request for payment to the Division of Construction along with all details surrounding the cause of the damage. Guidance for repair of work that damaged after partial acceptance can be found in EPG 105.15.1 Partial Acceptance.

Damages to any portion of the work before the work is completed and accepted, caused by the action of the elements or from any other reason, shall be repaired or replaced at the contractor's expense. Contractors typically carry liability insurance to protect against these type of events. At its discretion, the Commission may make payment for damage to the work for unforeseeable causes beyond the control, and without fault or negligence on the part of the contractor, unless the contractor has been reimbursed for such damages by the contractor’s insurer or any other party. This provision is to provide the engineer with discretion to compensate for partially accepted permanent work (see example scenarios below). No payment should be made for damage to items for temporary work (e.g., temporary shoring, CMS boards, traffic control devices, temporary barrier, etc.) unless specifically provided in the contract (e.g., sand-filled attenuator replacements).

Scenario 1A: The contractor completes installation of the guardrail on all four corners of a bridge that is opened to traffic. Other work on the job is ongoing. Due to a staged lane shift, traffic is in close proximity to the guardrail. The contractor’s traffic control devices are in good condition, reflective and well maintained. A motorist loses control and damages an end terminal and portion of guardrail. The motorist left the scene before law enforcement could arrive, so no identification of the responsible party is made. The contractor has liability insurance, but this type of event is not covered.
Result: The contractor immediately delineates the area and re-mobilizes to perform the repair as soon as practical. As required per Sec 616.4.2.6, the contractor obtains the accident report from law enforcement and provides a copy to the engineer. Had the responsible party been identified, the contractor would normally pursue reimbursement for the cost of repair from the motorist’s insurer, or motorist if uninsured. Since the responsible party was unknown, the contractor requests reimbursement for the repair from the engineer. The RE evaluates the circumstances and elects to pay for the repair at the contract unit prices per Sec 107.12. No payment is made for other costs, such as re-mobilization or traffic control. Note: While not preferred, the RE has the option to order the repair through the Job Order Contract if there is a valid reason to do so. In that case, the RE would charge the cost to the project job number rather than the JOC.

Scenario 1B: This scenario is identical to Scenario 1A except that the contractor did not follow the traffic control plan and/or specifications (e.g., improper placement of the traffic control devices, poor reflectivity of devices, failed to cover existing speed limit sign, improper flagging, etc.).
Result: The RE determines that the contractor was negligent in their responsibilities, which may have contributed to the accident. No payment is made for the repair.

Scenario 1C: This scenario is identical to Scenario 1A except that the protection on the bridge end is temporary (e.g., temporary Type A or C end terminal is installed but is scheduled to be removed later).
Result: The RE determines this was a contractor-owned traffic control device and not a permanent installation so no payment was made.

Scenario 2A: Construction of a bridge substructure is in progress. The permanent Rock Blanket on the fill slope is complete and the material used met the size requirements. A flash-flood event occurs, resulting in the following losses: 1) the contractor’s equipment is damaged, 2) the contractor’s temporary shoring is dislodged, 3) piling is washed away and 4) a portion of the rock blanket is washed away.
Result: The RE determines the rock blanket was installed properly, but under-designed for this type of flood event. The RE orders replacement with larger material and pays for the work as a contingent item. No reimbursement is made for the piling since it was not yet installed. No reimbursement was made for re-driving the temporary shoring or repairing the contractor-owned equipment.

Scenario 2B: This scenario is identical to Scenario 2A except that the contractor had used broken concrete from the job that did not meet the size requirements for the Rock Blanket specified.
Result: The RE orders the removal of the remaining Rock Blanket and reinstallation of Rock Blanket that meets specifications. No payment is made for the lost material or for removal and replacement of the undersized material.

Scenario 3: For self-convenience, a subcontractor installs posts for permanent signing months earlier than needed, thus unnecessarily exposing the posts to potential damage in a congested work area. A post is damaged by an errant vehicle.
Result: The RE declines replacement costs citing the placement of the sign was done outside of the logical phase.

107.13 Insurance Requirements

Sec 107.13 provides information on the contractor’s responsibility to obtain and keep in place various forms of insurance.

The contractor shall provide sufficient liability insurance coverage in an amount not less than the limit of the Commission’s liability under §537.610, RSMo. The type of insurance will be specified by MoDOT and shall include MHTC, MoDOT and employees as additional insured, and shall insure the Commission against claims that are the result of negligent acts, faults or unsafe conditions caused by the contractor.

The financial liability of public entities, like MoDOT, is statutorily capped. This is commonly called the Sovereign Immunity (SI) limits, is set by §537.610, RSMo, and indexed annually for inflation in the Missouri Register under the responsibility of the Missouri Department of Insurance. Conversely, the liability of contractors working in Missouri IS NOT capped and contractors can be assessed an unlimited amount of financial liability.

The 2019 SI cap is $429,799 per person/per incident and $2.8 million per incident for all claims.

SI does not apply to public entities (that is, state agencies like MoDOT) in situations where:

1. Injuries caused due to negligent acts of public employees as a result of motor vehicle use.

2. Injuries caused by a dangerous condition of a public entity's property.

3. An inverse condemnation claim alleging MoDOT has interfered with a property owner’s full use and enjoyment of their property without just compensation.

Example of an acceptable "Certificate of Liability Insurance"

The Missouri Standard Specifications for Highway Construction includes MoDOT’s insurance requirements. As one of the prequalifications to bid on MoDOT contract, a contractor is required to provide proof of insurability documented in a Certificate of Liability Insurance. After being awarded a MoDOT contract, but prior to starting the work on the project, the contractor and all approved subcontractors are required to provide a Certificate of Liability Insurance that meets the minimum insurance requirements set forth in the contract and MoDOT's standard specifications. A typical certificate, created by the insurance industry, is called an ACORD Insurance Certificate. Having a “standard” form provides an easy-to-understand explanation of benefits. MoDOT generally receives an ACORD certificate, but there are other forms used by the insurance industry.

The contractor, at a minimum, is required to carry General Liability, Workers Compensation and Commercial Automobile Liability insurance to work on MoDOT road and bridge contracts. The contractor can carry other insurance and additional levels of insurance, provided the minimum amounts are carried to cover the SI limits. Since some contactors hold numerous contracts with MoDOT concurrently, MoDOT requires a per-project endorsement on the Certificate of Liability Insurance. The per-project endorsement is required to provide MoDOT with adequate coverage up to the SI limits for each contract when the contractor has multiple active contracts. Additionally, MoDOT requires that the Certificate of Liability Insurance include MoDOT/MHTC/employees as an “additional insured” endorsement. An additional insured endorsement does not provide the additional insured a separate set of limits; rather, the policy holder and additional insured “shared” the limits.

For example: Assume there is an 8-person accident on a resurfacing project. The contractor is the only entity involved (no subcontractors) and has a Certificate of Liability Insurance with a $3 million aggregate limit. The injured parties sue both the contractor and MoDOT, claiming the work zone was a dangerous condition. At trial, the court enters a judgment for $5 million against MoDOT and the contractor and assigns fault at 50/50 between MoDOT and the contractor. It is likely that the contractor’s portion of the judgment ($2.5 million) will be paid first by the contractor's insurance company and leave only $500,000 of insurance coverage for MoDOT’s portion of the judgment (also $2.5 million). In this example, the insurance MoDOT required the contractor to purchase on its behalf will not completely cover MoDOT’s portion of the judgment, leaving $2 million outstanding. In this situation, MoDOT would request the contractor to pay the remaining $2 million because the contract specifications require them to do so. If the contractor refuses, MoDOT could pursue litigation to recover the $2 million, as this would be considered a breach of contract.

Based on the project, it is important to determine if the minimum levels of insurance that will be shared should be raised to adequately cover potential liability risks to MoDOT.

Regardless of whether the contract is for a design-bid-build or a design-build project, the MHTC requires the contractor to insure and hold harmless the MHTC/MoDOT and employees for damages assessed arising from the contractor's actions or negligence.

Navigable Waters Insurance Protection

Any contractor and/or subcontractor performing work on or adjacent to the Missouri and Mississippi Rivers, and any other waters classified as “navigable waters of the United States” by the USACE, shall obtain insurance coverage in accordance with Sec 107.13.3. The Resident Engineer should verify that the contractor has the appropriate insurance prior to the start of any work on navigable waters. The RE may want to include mention of this requirement in the preconstruction letter and add it as a discussion item to the preconstruction agenda.

Jones Act insurance is required to cover all employees deemed by the courts as masters or members of crews of vessels who are entitled to seek recovery as “seamen” for injury or death under the Jones Act, or general maritime law. The contractor should provide proof of insurance to the Division of Construction and Materials before any work is performed. The Resident Engineer should consult the Construction Contract Administrator for verification of coverage.

US Longshore and Harbor Workers’ Compensation Act insurance is required to cover all employees who do not qualify as masters or members of crews of a vessel, but perform work in loading or unloading vessels, or work from docks, barges, or other platforms, and who may be deemed by the courts as entitled to seek compensation for injury or death under the US Longshore and Harbor Workers’ Compensation Act. The contractor should provide proof of insurance to the Division of Construction and Materials before any work is performed. The Resident Engineer should consult the Construction Contract Administrator for verification of coverage.

107.14 Third Party Liability

Sec 107.14 provides information regarding third party liability.

107.15 Personal Liability of Public Officials

Sec 107.15 provides information regarding the personal liability of public officials with regard to performing their duties related to the project.

107.16 Contractors That Are Not Resident In Missouri

Sec 107.16 provides information regarding contractors that are not resident in Missouri. The Division of Construction and Materials collects and processes this type of information in advance of the bidding.

107.17 Basis of Payment

Sec 107.17 provides information regarding the basis of payment to the contractor for compliance with the various requirements of Sec 107.

107.18 Employee Use of Vehicles

MoDOT furnishes cars, pickups and carryalls for use of the Resident Engineer and the Resident Engineer's staff.

General Services is responsible for procuring and maintaining automotive equipment operated by MoDOT. Periodic inspections of all equipment is made by the district chief mechanic’s staff. Keep vehicles reasonably clean and properly serviced. Servicing of equipment is the responsibility of the Resident Engineer the equipment is assigned to and should be done at the intervals established by lubrication charts furnished by General Services.

Check with your District Construction and Materials Engineer for advice on where to have equipment serviced.

In rare cases it may be necessary for MoDOT employees to use personal cars on a limited basis in connection with their employment. Such use will be reimbursed when authorized in accordance the Financial Policy & Procedure Manual.

Do not operate vehicles in excess of speed regulations. As a MoDOT employee you are a member of an organization dedicated to driver safety. Always operate MoDOT vehicles in a manner reflecting courtesy, safety and respect for law.

Unauthorized use of MoDOT vehicles may subject the employee to discharge or suspension. Any employee who damages a vehicle while using it for unauthorized purposes may be required to pay for the damages.

The Missouri Highways and Transportation Commission is self-insured to provide fleet vehicle liability coverage to protect department employees during the authorized use of vehicles owned, used, or hired by the department in carrying out MoDOT operations. Uniform procedures have been established for the reporting and processing of all fleet vehicle liability claims in order to assure a practical program of cost control. These procedures are included in the Risk Management Manual. The District Construction and Materials Engineer and each Resident Engineer has been provided a copy of this manual for the use of all MoDOT employees.

Accident Report

An employee must report immediately any accident in which any vehicle or unit used, by the department are involved. The employee's supervisor will notify the district safety officer of the incident. The vehicle accident report form is available to MoDOT employees on the Risk Management web page. Form RM-4 is to be completed immediately for all accidents and submitted to the district safety officer, also. This Form RM-4 and the driver's narrative is to be clear, concise, accurate, and legible; typed if possible. Vehicle Accident Instruction Form RM-5 is placed in all motorized equipment for use by employees who are involved in an accident.

107.19 Project Office Upkeep

The general appearance in and around the project office and adjacent area must be maintained in a neat, clean and orderly condition which in turn reflects MoDOT to the public.

Survey instruments, field notebooks and completed portions of final plans shall be stored or filed so that fire or theft hazard is at a minimum. Keep all field books in a fireproof case when they are not in use.

Office rental statements are handled by commercial invoice. The statement must be either on the landlord's letterhead or must contain the affidavits shown on "Statement Form" in Figure 107.19, below. Office rental statements and utility bills are to be processed according to Business and Benefits instructions in the Financial Policies and Procedures Manual. If possible, the office should be rented with utilities furnished so that the number of bills will be reduced and the total cost per month will be known in advance.

Due to the sensitive and legal nature of documents mailed to the project office by contractors or from within the department, the project office shall have its own mailing address separate from any other MoDOT business unit.