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)

101- DEFINITIONS AND TERMS

SECTION 101
DEFINITIONS AND TERMS

101.1 RULES OF INTERPRETATION
Use of Imperative Mood. KDOT has generally written the standard specifications in the imperative mood,
so the subject and helping verb are implied. Example: “Provide supervision” rather than “The Contractor shall
provide supervision”.
The word “will” generally pertains to the Kansas Department of Transportation’s decisions or actions.
When used before a list, the word “include”, “includes”, or “including” means “including but not limited
to” the items in the list.
Although the Contractor is the most-often implied subject, the subject may also include a subcontractor at
any tier, supplier at any tier, vendor, fabricator, manufacturer, or other entity the Contractor engages to perform
work (including the supply of materials, products, or equipment for use on the project).

101.2 ABBREVIATIONS
Wherever the following abbreviations are used in these specifications or in other Contract Documents, they
are intended to represent the following organizations, agencies, and/or their respective publications, standards, etc.:
AA - Aluminum Association.
AAN - American Association of Nurserymen.
AAR - American Association of Railroads.
AASHTO - American Association of State Highway and Transportation Officials.
ACI - American Concrete Institute.
ACPA - American Concrete Pavement Association.
AGC - Associated General Contractors of America.
AI - Asphalt Institute.
AIA - American Institute of Architects.
AISC - American Institute of Steel Construction.
AISI - American Iron & Steel Institute.
ANSI - American National Standards Institute.
APWA - American Public Works Association.
AREMA - American Railway Engineering and Maintenance of Way Association.
ARTBA - American Road and Transportation Builders Association.
ASBI - American Segmental Bridge Institute.
ASCE - American Society of Civil Engineers.
ASLA - American Society of Landscape Architects.

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ASTM -American Society for Testing and Materials.
AWPA - American Wood Preservers' Association.
AWS - American Welding Society.
AWWA - American Water Works Association.
CFR - Code of Federal Regulations.
CRSI- Concrete Reinforcing Steel Institute.
DWR - Division of Water Resources.
EEO - Equal Employment Opportunity.
FAR - Federal Acquisition Regulations.
FHWA - Federal Highway Administration-U. S. Department of Transportation.
FSS - Federal Specifications and Standards, General Services Administration.
GSA - General Services Administration.
ITE - Institute of Transportation Engineers.
KAR - Kansas Administrative Regulations.
KDOT - Kansas Department of Transportation.
MIL - Military Specifications.
MUTCD - Manual on Uniform Traffic Control Devices.
NBS - National Bureau of Standards.
NEC - National Electrical Code.
NEMA - National Electrical Manufacturers Association.
NFPA - National Forest Products Association.
OSHA - Occupational Safety and Health Administration.
PCA - Portland Cement Association.
PCI - Precast/Prestressed Concrete Institute.
PTI - Post Tensioning Institute.
SAE - Society of Automotive Engineers.
SSPC - Society for Protective Coatings.
TAR - Transportation Acquisition Regulations.

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101- DEFINITIONS AND TERMS

UL – Underwriter’s Laboratory.
USGS - United States Geological Survey.

101.3 DEFINITIONS
A + B BIDDING - A bidding method shown in the Contract Documents in which the bidder bids both the work and
the working days or calendar days. KDOT assigns a set dollar value for each working day or calendar day the
Contractor bids based upon some or all of the daily road user costs. The Secretary will total the amount bid for the
work and the product of the working days or calendar days and the set daily dollar value. The contract is awarded to
the lowest responsible and responsive bidder using the combination of the work and time. The contract price is the
amount bid for the work. The contract time is the number of working days or calendar days the Contractor bid.
ACTS OF GOD - A natural event, not preventable by a human agency, such as flood, tornado, or lightning. Forces
of nature such as rain, wind, hail, and snow if these forces produce unusually severe weather. Unusually severe
weather is adverse weather that at the time of year in which it occurred is abnormal for the place in which it
occurred.
ADVERTISEMENT - The public announcement inviting bids for specified work.
AWARD - The State Transportation Engineer’s acceptance of a proposal and a prerequisite to executing a
construction contract.
BID BOND - The approved security, on KDOT’s form, the bidder and the bidder’s surety or sureties execute,
guaranteeing the execution of a satisfactory contract and the filing of an acceptable contract bond if the State
Transportation Engineer accepts the bidder’s proposal.
BIDDER - An individual, partnership, corporation, other legal entity, or any acceptable combination thereof (joint
venture) submitting a proposal.
BID PRICE AND CONTRACT PRICE OR AMOUNT - The sum of the products of the quantities of work the
Engineer estimates for the project and the bidder’s respective unit prices as set forth in the proposal.
BRIDGE - A single or multiple span structure, including supports, erected over a depression or an obstruction, such
as water, a highway, or railway, and having a track or passageway for carrying traffic or other moving loads and
having an opening measured along the center of the roadway of more than 20 feet between under-copings of
abutments or spring lines of arches or extreme ends of openings of multiple boxes. If there are no abutment copings
or fillets, the 20 foot measurement shall be between points 6 inches below the bridge seats or, in the case of frame
structures, immediately under the top slab. All measurements shall include the width of intervening piers or division
walls.
Bridge Length. The greater dimension of a structure measured along the center of the roadway between
backs of abutment backwalls or between ends of the bridge floor.
Bridge Roadway Width. The clear width of structure measured at right angles to the center of the roadway
between the bottom of curbs or, if curbs are not used, between the inner faces of parapet or railing.
BUSINESS DAY - Any day excluding Saturday, Sunday, Federal Legal Holidays, and State Legal Holidays.
CALENDAR COMPLETION DATE - A specified date by which the Contractor shall complete project
construction.
CALENDAR DAY - Every day shown on the calendar, beginning at 12:01 a.m. and ending at midnight.
CENTER LINE OF HIGHWAY - A line equidistant from the edges of the median separating the main traveled
ways on a divided highway or the center line of the main traveled way on a non-divided highway.

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CHANGE ORDER - A written order the Engineer issues to the Contractor and both parties sign, which sets forth
any contract change(s). Once both parties execute it, the change order becomes a part of the contract.
CLEANUP TIME (CLEANUP WORKING DAYS) – The number of working days following the contract time
in which the Contractor shall complete remaining, unfinished contract pay items, subsidiary items, incidental work,
final cleanup, and final punch list.
COMPENSATE (COMPENSATION) – Depending on the context, compensate or compensation refers to time,
money, or both money and time.
CONTRACT - The written agreement between the Secretary and the Contractor setting forth the parties’
obligations to perform and pay for the work.
The contract includes the following Contract Documents, all of which constitute one instrument and are
incorporated by reference into the contract: the Proposal, exploratory work documents, addenda, amendments,
contract form, contract bond, standard specifications, special provisions, project special provisions, general plans,
detailed plans, the notice to proceed, material test methods, material test reports, material certifications, Part V of the
KDOT Construction Manual, change orders, payment vouchers, guarantees, warranties, and other agreements, if
any, that are required to complete the construction of the work timely and in an acceptable manner.
CONTRACT ADJUSTMENT - A contract change order for time, money or both time and money that
compensates the Contractor for contract changes. A contract change order for time that compensates the Contractor
for Acts of God.
CONTRACT BOND - The approved security, on KDOT’s form, that the Contractor and the Contractor’s surety or
sureties execute, guaranteeing completion of the contract (performance of work and payment of all legal debts for
the work).
CONTRACT CHANGE - A Contract Change is any event by which the Secretary, the Secretary’s authorized
representative, or the Secretary’s authorized agents modify the contract whether at KDOT’s or the Contractor’s
request. On City-owned or County-owned projects, a Contract Change also includes any event by which the local
government owner, the local government owner’s representative, or the local government owners’ authorized agents
modify the contract whether the local government owner, KDOT, or the Contractor initiate the modification.
Changes to the contract caused by Acts of God are not Contract Changes.
CONTRACT DOCUMENTS - An all-encompassing term for all documents relating to the contract and hereby
incorporated by reference into the contract. The Contract Documents include the proposal, exploratory work
documents, addenda, amendments, contract form, contract bond, standard specifications, special provisions, project
special provisions, general plans, detailed plans, the notice to proceed, material test methods, material test reports,
materials certifications, Part V of the KDOT Construction Manual, change orders, payment vouchers, guarantees,
warranties, and other agreements, if any, that are required to complete the construction of the work timely and in an
acceptable manner.
CONTRACT ITEM (PAY ITEM or BID ITEM) - Specific work item for which the contract provides a unit
price.
CONTRACT TIME - The time allowed (including authorized extensions) for completing physical construction on
the project to open the project to unrestricted traffic, expressed as working days, calendar days, a specific calendar
completion date, or a combination thereof. See also Interim Contract Time.
CONTRACTOR - The individual partnership, corporation, other legal entity, or any acceptable combination
thereof (joint venture) contracting with the Secretary to complete the contract. (The second party to the contract.)
CONTROLLED ACCESS FACILITY - A highway, road, or street designed to expedite and control through and
local traffic and to give owners or occupants of abutting property only a controlled right of easement of access, light,
air, or view over, from or to such highway, road, or street.

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101- DEFINITIONS AND TERMS

CONTROLLING ITEM(S) OF WORK. (CIOW) - Those work item(s) that are directly interrelated such that
each has a definite influence on progress of the overall work.
CULVERT - Any structure providing an opening under the roadway that does not meet the classification of a
bridge.
DAMAGES - Depending on the context in the specifications, a broad term that includes injury to property,
destruction of property, and monetary expenses.
DAYLIGHT HOURS - Daylight hours for the purpose of these specifications are defined as the period ½ hour after
sunrise to ½ hour before sunset.
DELAY - An event(s) that increases, disrupts, hinders, or interferes with the duration of the Contractor’s work. The
Contractor cannot avoid specifications using the term “Delay” by characterizing an event as a disruption, hindrance,
or interference with the work.
DETOUR - A designated, temporary traffic route the Secretary has approved around a closed road.
DISTRICT MATERIALS ENGINEER (DME) - Each District has a designated District Materials Engineer. The
specifications use the abbreviation DME to refer to these individuals.
EMBANKMENT - That portion of the work that is constructed from natural material, such as soil, shale, rock, or a
combination thereof either as a fill section.
ENGINEER - The State Transportation Engineer acting directly or through duly authorized representative(s) for
engineering and administrative supervision of the contract. Authorized representatives for engineering and
administrative supervision of the contract include the KDOT Director of Operations, Bureau Chief of Construction
and Maintenance, Bureau Chief of Materials and Research, District Engineer, District Construction Engineer, Metro
Engineer, Field Engineering Administrator, Area Engineer, Area Construction Engineer, and Construction
Managers.
ENGINEER OF TESTS - The Engineer of the Materials Test Unit of the Bureau of Materials and Research. The
Engineer of Tests is located at the Kansas Department of Transportation, Materials and Research Center, 2300 Van
Buren, Topeka, Kansas 66611.
EQUIPMENT - All machinery, tools, and apparatus necessary to complete the contract, including fuels, lubricants,
and other parts required to use, operate, and maintain such machinery, tools, and apparatus.
EXPLORATORY WORK DOCUMENTS - Documents KDOT, local government owners, or Engineering Design
Consultants develop to determine the project’s engineering requirements. These may include geotechnical
foundation investigation reports; soils reports; geology reports; hydraulic investigations; hydrological investigations;
bridge reports; earth work computations; boring logs; surveys; rock investigations; soils investigations;
environmental investigations; building investigations; bridge investigations; and other geological, geotechnical, or
design information for the project. Exploratory work documents are Contract Documents.
EXTRA WORK - See subsection 104.6.
FIELD ENGINEER - The KDOT employees directly in charge of administering contracts for KDOT. This term
includes the KDOT Metro Engineer, Field Engineering Administrator, Area Engineer, Area Construction Engineer,
or Construction Manager.
FREEWAY - A controlled-access highway with access to interchanges.
FRONTAGE ROAD - A highway, road or street which is auxiliary to and located on the side of another highway,
road or street for service to abutting property.

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GENDER REFERENCES - No particular gender is intended by the use of the words “he,” “she,” “him,” or “her”
in these specifications or other Contract Documents.
HIGHWAY - The whole right-of-way used in constructing a facility for the purpose of vehicular travel as part of
the State Highway System and under the Secretary’s jurisdiction.
HIGHWAY DISTRICTS - There are 6 Highway Districts each headed by a District Engineer. Each District has
from 16 to 19 Counties which represent the boundaries of the District. Obtain details of the District boundaries from
the KDOT District Offices in Topeka, Salina, Norton, Chanute, Hutchinson, Garden City, or KDOT’s Bureau of
Construction and Maintenance.
INSPECTOR - The Engineer’s authorized representative assigned to both observe and check contract performance
on project sites, field laboratories, manufacturers’ establishments, fabricators’ facilities, Contractors’ home offices,
or other work locations.
INTERIM CALENDAR COMPLETION DATE - A specified date by which the Contractor shall complete
construction on certain parts of the project.
INTERIM CONTRACT TIME - The time allowed (including authorized extensions) for completing certain parts
of the project, expressed as hourly periods, working days, calendar days, a calendar completion date, or a
combination thereof.
INTERSTATE HIGHWAY - Any highway the Secretary officially designates and the Federal government
approves as a part of the National System of Interstate and Defense Highways.
KANSAS DEPARTMENT OF TRANSPORTATION (KDOT) - Kansas Department of Transportation as
constituted under the laws of Kansas headed by the Secretary of Transportation and created to administer various
transportation activities for roads and bridges throughout the state of Kansas. Contract Documents may use the term
“Department” or “Agency” as well as “KDOT”.
KANSAS TEST METHOD (KT-*) - Testing methods found in Part V of the KDOT Construction Manual. The
(*) refers to the actual test number. Those test methods identified in the Contract Documents are the acceptable
method of testing materials.
LEGAL HOLIDAYS - Legal holidays are defined as State Civil Service holidays, including New Year’s Day,
Martin Luther King Day, Memorial Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day,
Christmas Day and any other day proclaimed by the Governor of the State of Kansas. When the Contract
Documents use the term “Business Days”, the list will also include Columbus Day, Presidents Day, and any other
federal holiday not recognized by the state of Kansas.
LETTING - An event conducted at a specific time and location at which all bidders may submit their proposals and
KDOT reads the proposals in public. (Bidders may submit proposals in person, by mail, or by electronic means.)
LIQUIDATED DAMAGES - Predetermined amounts owed (subtracted from the contract price if possible) for
each day work is completed beyond specific interim contract times or contract times.
LOCAL PUBLIC AUTHORITY (LPA) - A division of government at the County, City, or Township level
responsible for a system of roads, streets, and bridges under that entity’s jurisdiction. KDOT acts as the agent for
the Local Public Authority when the Local Public Authority is the owner of the project but the project contains
federal funds.
MAJOR AND MINOR CONTRACT ITEMS - A major contract item is any contract item, excluding
mobilization, having an original contract value of 5% or more of the original contract amount. Any other contract
item shall be considered a minor contract item.
MATERIALS - Substances specified for use in constructing the project and its appurtenances.

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MATERIALS AND RESEARCH CENTER (MRC) - The Materials and Research Center located in Topeka, KS.
MEDIAN - The portion of a divided highway or street separating the traveled ways for traffic moving in opposite
directions.
NOTICE TO PROCEED - Written notice to the Contractor to begin the contract work including, when applicable,
the date from which the Engineer will start charging contract time.
PAVEMENT STRUCTURE - The combination of subbase, base course, and surface course placed on a prepared
or treated sub-grade to support the traffic load and distribute it to the underlying materials.
Subgrade: The top surface of an embankment or finished cut upon which the pavement structure,
shoulders, and curbs are constructed.
Subgrade Treatment: Stabilization of underlying earthen material or roadbed material.
Subbase: The layer or layers of specified material of designed thickness placed on a subgrade to
support a base course.
Base Course: The layer or layers of specified material of designed thickness placed on a subbase or a
subgrade to support a surface course.
Surface Course: The layer or layers of pavement structure designed to accommodate the traffic load.
The top layer resists skidding, traffic abrasion, and the disintegrating effects of climate and may be
identified as the “Wearing Course”.
PART V - Part V of the KDOT Construction Manual which primarily refers to materials and tests for materials used
in the project. Part V is a Contract Document.
PLANS - The KDOT-prepared, LPA-prepared, or Consultant-prepared and owner approved plan profiles, typical
cross sections, and other detail sheets showing the location, character, dimensions, and details of the work.
PRIME CONTRACTOR - See CONTRACTOR.
PROFILE GRADE - The trace of a vertical plane intersecting the top surface of the proposed wearing surface,
usually along the longitudinal centerline of the traveled way. Profile grade means either elevation or gradient of
such trace according to the context.
PROJECT - The specified location on which construction is to be performed together with all improvements to be
constructed under the contract.
PROPOSAL - A bidder’s written offer, on the prescribed form (paper or electronic), to perform the work at the
prices quoted.
PROPOSAL FORM - The prescribed form (paper or electronic) that the Secretary provides and that the Secretary
requires a bidder to use in preparing its written offer or Proposal.
QUALIFICATION STATEMENT AND EXPERIENCE QUESTIONNAIRE - The specified form, filed
annually, on which the Contractor shall provide the required information as to the Contractor’s ability to perform
and finance the work.
RIGHT-OF-WAY - Land, property, or an interest therein the Secretary acquires for transportation or
transportation-related purposes.
ROAD - A public way for purposes of vehicular travel, including the entire area within the right-of-way.
ROADSIDE - The land area adjoining the outer edge of roadway. The land area as well as the median, if any,
between the roadways of a divided highway.
ROADWAY - The portion of a highway from outside edge of shoulder to outside edge of shoulder including the
traveled way.

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101- DEFINITIONS AND TERMS

SECRETARY - The Secretary of Transportation, Kansas Department of Transportation, appointed by the
Governor. The Chief Executive Officer of the Kansas Department of Transportation.
SHOP DRAWINGS - See WORKING DRAWINGS.
SHOULDER - The portion of the roadway contiguous with the traveled way that contributes to the lateral support
of the base and surface courses and that is used by stopped vehicles in emergency situations.
SIDEWALK - That portion of the right-of -way primarily constructed for the use of pedestrians.
SPECIAL PROVISIONS AND PROJECT SPECIAL PROVISIONS a. SPECIAL PROVISIONS. Approved additions or revisions to the standard specifications.
b. PROJECT SPECIAL PROVISIONS. Approved additions or revisions to the standard specifications
that address conditions particular to an individual project.
STABILIZATION - Modification of soils or aggregates by incorporating materials that will increase load bearing
capacity, firmness, and resistance to weathering or displacement.
STANDARD SPECIFICATIONS - The current edition of the Kansas Department of Transportation’s Standard
Specifications for State Road and Bridge Construction.
STATE - The State of Kansas acting through its authorized representative, the Secretary of Transportation.
STATES DELAY OR OWNERS DELAY - An event(s) that increases, disrupts, hinders, or interferes with the
duration of the Contractor’s work (Delay) caused by actions of KDOT or an LPA (including authorized
representatives and agents).
STATE TRANSPORTATION ENGINEER - The Assistant Secretary & State Transportation Engineer reporting
to the Secretary of Transportation and having authority over all functions of KDOT (See subsection 105.1).
STREET - A public way for vehicular travel, including the entire area within the right-of-way, that is generally
located within cities and developed areas.
STRUCTURES - Bridges, culverts, catch basins, drop inlets, retaining walls, manholes, headwalls, buildings,
sewers, service pipes, underdrains, foundation drains and other features encountered in the work.
SUBCONTRACTOR - An individual, partnership, corporation, other legal entity, or any combination thereof (joint
venture) to which the Contractor sublets part of the contract. Subcontractors are not a party to the contract between
the Secretary and Contractor. However, the Contractor assumes liability for the subcontractors as if the Contractor
were performing the sublet work with its own forces. Thus, when the specifications refer to the word “Contractor”
but subcontractors are performing the work, the word “Contractor” includes the subcontractors.
SUBGRADE - The top surface of an embankment or finished cut upon which the pavement structure, shoulders,
and curbs, if any, are constructed.
SUBSTRUCTURE - All of that part of a structure below the bearing of simple and continuous spans, skewbacks of
arches or top of footings of rigid frames, together with backwalls, wingwalls and wing protection railings.
SUPERINTENDENT - The Contractor’s representative that has authority to communicate with the KDOT Field
Engineer and Inspectors and to coordinate the Contractor’s, subcontractors’, and suppliers’ activities. See
subsection 105.7d.
SUPERSTRUCTURE - All of that part of a structure above and including the bearing of simple and continuous
spans, skewbacks of arches or top of footings of rigid frames, excluding backwalls, wingwalls, and wing protection
railings.

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101- DEFINITIONS AND TERMS

SUPPLIERS - An individual, partnership, corporation, other legal entity, or any combination thereof (joint venture)
from which the Contractor obtains commodities needed to fulfill the contract. Suppliers are not a party to the
contract between the Secretary and Contractor. However, the Contractor assumes liability for the suppliers as if the
Contractor were providing the commodities with its own forces. Thus, when the specifications refer to the word
“Contractor” but suppliers are providing the commodities the word “Contractor” includes the suppliers.
SURETY - An individual, partnership, corporation, or other legal entity (not the Contractor) executing a bond
provided by the Contractor. The Surety shall be licensed by the State of Kansas to do business in the State.
TRAFFIC CONTROL DEVICES - All items used to control the movement of traffic through work zones,
including safety barrels, barricades, fences, traffic signs, warning signs, striping, traffic lights, and traffic signals.
TRAVELED WAY - The portion of the roadway for the movement of vehicles, exclusive of shoulders and
auxiliary lanes. This may be 1 or multiple driving lanes in each direction.
UNRESTRICTED TRAFFIC – The affected lanes are open to unobstructed, continuous traffic flow with
temporary or permanent striping, temporary or permanent signing, and required safety features in place.
UTILITY or UTILITY OWNER - Electric, telephone, cable, water, gas, pipeline, or sewer service owned and
operated by a corporation or an LPA.
WORK - The providing of all labor, materials, equipment, and other incidentals necessary to complete the contract,
regardless of whether the Contractor, subcontractors at any tier, suppliers at any tier, or a combination thereof carry
out the contract obligations. In context, the term “work” may also refer to providing labor, materials, equipment,
and other incidentals necessary to complete a specific portion of the contract.
WORKING DAY - A working day shall be any day the Contractor is not restricted from prosecuting the CIOW
because of KDOT, LPA’s, or weather as further provided in subsection 108.5.
WORKING DRAWINGS - Stress sheets, shop drawings, erection plans, falsework plans, framework plans,
cofferdam plans, bending diagrams for reinforcing steel, other supplementary plans, or similar information that the
Contractor is required to submit to the Engineer for approval.

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