Martin Marietta Materials, Inc. et al v. Kansas Department of Transportation et al

Filing 59

MEMORANDUM AND ORDER. The 22 Motion of defendants' for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is granted in part and denied in part; and the 31 Motion of plaintiffs' for leave to amend complaint pursuant to Fed. R. Civ. P. 15(a)(2) is granted in part and denied in part. Defendant KDOT is dismissed from all counts and leave to amend to include KDOT as a party defendant in any count is denied. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/21/2013. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6.) (bmw)

106 – CONTROL OF MATERIALS

SECTION 106
CONTROL OF MATERIALS

106.1 SOURCE OF SUPPLY AND QUALITY REQUIREMENTS
a. Sources of Supply.
(1) Use sources of supply that will generate materials that meet quality requirements. Sources of supply
include quarries, pits, borrow areas, fabrication plants, right-of-way, and other sources from which the Contractor
may obtain material.
(2) Notify the Engineer, in writing, of proposed sources of supply or changes in existing sources of supply
unless the Contract Documents designate the source of supply. Provide this notice at least 10 business days before
either producing material from that source or delivering material to the project. When applicable, include the land
ties of the sources. Assume all costs of acquiring sources of supply, including any exploration and development
costs.
(3) The Engineer or Inspector will inspect, test, and then approve or reject Contractor-furnished sources of
supply that KDOT has not previously approved. Do not use a Contractor-furnished source of supply without the
Engineer’s written approval.
(4) If an approved source of supply fails to yield acceptable material:
(a) stop producing material from that source until the Engineer approves the source again;
(b) provide material from another approved source; or
(c) perform a combination of subsections 106.1a.(4)(a) and (b)
(5) If an approved source of supply that KDOT designated in the Contract Documents fails to yield
acceptable material, the Engineer will compensate the Contractor for extra work under subsection 104.6.
(6) Inspection, testing, and approval of Contractor-furnished sources of supply are for KDOT’s benefit, not
to ensure Contractor quality control (QC) results. This inspection, testing, and approval is not a substitute for the
Contractor’s obligation to provide acceptable sources of supply.
b. Quality Materials.
(1) Use only materials that meet the Contract Documents’ requirements. Unless specified otherwise, use
new materials.
(2) The Engineer or Inspector will inspect materials. The Engineer, Inspector, or Contractor will test the
materials. See subsection 106.3.
After inspection and testing, the Engineer or Inspector will approve or reject the materials at the source
of supply, at the project site, or both;
The Engineer or Inspector may reject materials at the project site even if the Engineer or Inspector
previously approved the materials at the source of supply;
The Engineer or Inspector may reject the materials if, at any time, the Engineer determines the
materials do not meet the Contract Documents; and
The Engineer or Inspector may reject materials during or after incorporation into the work if the
material does not meet the Contract Documents requirements.
(3) If material that has not been inspected, tested, and accepted is used, the Engineer may decide the work
is unacceptable, reasonably acceptable, or unauthorized and require the removal and replacement of the material, or
accept a price reduction for the material. See subsection 105.5.
(4) Inspection, testing, and approval of Contractor-furnished materials are for KDOT’s benefit, not to
ensure Contractor QC results. This inspection, testing, and approval is not a substitute for the Contractor’s
obligation to provide acceptable material.
c. "Buy America" Materials.
(1) All iron or steel and coatings applied to iron or steel (including epoxy coatings, galvanizing, painting,
and any other process that protects or enhances the value of iron or steel used) shall have been manufactured,
produced, and processed in the United States. Exceptions to these requirements are when:
The use of domestic iron, the use of domestic steel, or the use of both domestic iron and steel when
both are required would increase the overall cost of the project by 25% or more;

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