VDOT Delays Treated as Department Changes. 12.3.3.1 In accordance with Section 7.12(e) of the Comprehensive Agreement, Concessionaire may submit to VDOT a request for “Change Order” (as defined in the Comprehensive Agreement) if Contractor incurs a material increase of its construction costs or incurs a material impact to the critical path which delays the Guaranteed Substantial Completion Date due to a material breach or an inexcusable delay by VDOT in performing any of its obligations described in Article 7 of the Comprehensive Agreement. For the purposes of this Section 12.3.3, an “inexcusable delay” shall mean a delay that is attributable solely to error or omission of VDOT, and an inexcusable delay or material breach specifically excludes delay or breach attributable to: (a) the submission of incomplete documentation for VDOT’s review, (b) required review or approvals from other Governmental Authorities necessary or appropriate to VDOT’s review, (c) failure to obtain appropriation and allocation of public funds, (d) consumption of available float, (e) submittals or requests that are “deemed approved” if no response is provided within twenty-one (21) days, and (f) force majeure events. A response by VDOT pursuant to Section 7.06(k) of the Comprehensive Agreement shall not be considered “deemed approved,” and shall not be considered an “inexcusable delay” in the event that a delay is attributable to items (a)-(f) above or is not attributable solely to error or omission of VDOT.
