Penalty for failing to promptly open lanes beyond the lane closure limit

When considering penalty charges, the first issue in Virginia DOT’s case is clarification of terminology and intent. VDOT’s statutory authority to assess penalties is currently limited to violations of environmental provisions. Penalty assessment authority for VDOT required changing the statutory code and is a recent development. Consequently, VDOT exercises care in contract terminology and when determining projects appropriate for applying traffic impact damage provisions. VDOT’s intent must be to impartially gauge the potential impact of occupation of lanes by the contractor outside allowable contract periods and to apply the predictable traffic delay costs via supportable contract provisions.
VDOT has used the spreadsheet developed by New Jersey DOT to analyze traffic impact damages and to serve as the basis for allocating traffic impact damages throughout the periods that lanes are contractually unavailable for occupation by the contractor.
Traffic impact damages have typically been allocated in 15-minute increments for the initial 2 hours and hourly thereafter. The 15-minute and hour increments are those available through VDOT traffic inquiries and are therefore readily documentable should traffic impact damage assessment be challenged by a contractor. Traffic impact damages should escalate and decrease to roughly mirror variation of traffic volume at the location.
Since VDOT lacks code authority to impose penalties, use of traffic impact damage provisions has been limited to locations where volume supports the application, primarily high-volume interstates.