(a)
Allowable
project costs. Those costs associated with the planning, design and
construction of pollution abatement facilities eligible for state funding
assistance are as follows:
(1) Costs of
salaries, benefits, and expendable materials the municipality incurs for the
project, except as provided for in Section
22a-439-4(b)
(8).
(2) Costs under construction
contracts.
(3) Professional and
consultant services.
(4)
Engineering report costs directly related to the pollution abatement
facility.
(5) Sewer system
evaluation.
(6) Project feasibility
and related engineering reports.
(7) Costs of complying with the Connecticut
Environmental Policy Act including costs of public notices and
hearings.
(8) Preparation of
construction drawings, specifications, estimates and construction contract
documents.
(9) Reasonable
landscaping.
(10) Materials
acquired, consumed, or expended specifically for the project.
(11) Shop equipment installed at the
pollution abatement facility necessary to the operation of the
facility.
(12) A reasonable
inventory of laboratory chemicals and supplies necessary to initiate plant
operations.
(13) Development and
preparation of a plan of operation and an operation and maintenance
manual.
(14) Start-up services for
new pollution abatement facilities.
(15) Project identification signs.
(16) Costs of complying with the procurement
requirements of these regulations.
(17) The costs of technical services for
assessing the merits of or negotiating the settlement of a claim by or against
the municipality provided:
(A) A formal grant
amendment is executed specifically covering the costs before they are
incurred.
(B) The costs are not
incurred to prepare documentation that should be prepared by the contractor to
support a claim against the municipality.
(C) The Commissioner determines that there is
a significant State interest in the issues involved in the claim.
(18) Change orders and the costs
of meritorious contractor claims for increased costs provided the costs are not
caused by the municipality's mismanagement or vicarious liability for the
improper action of others. Settlements, arbitration awards, and court judgments
which resolve contractor claims shall be reviewed by the Commissioner and shall
be allowable only to the extent they are not caused by municipality
mismanagement, are reasonable, and do not attempt to pass on to the State of
Connecticut the costs of events that were the responsibility of the
municipality, contractor or others.
(19) Costs necessary to mitigate only direct,
adverse, or physical impacts resulting from the building of the pollution
abatement facility.
(20) The costs
of groundwater monitoring facilities necessary to determine the possibility of
groundwater deterioration, depletion or modification resulting from the
project.
(21) For individual and
small community systems, allowable costs include:
(A) The cost of major rehabilitation,
upgrading, enlarging and installing small and onsite systems, but in the case
of privately owned systems, only for principal residences.
(B) Conveyance pipes from property line to an
offsite treatment unit which serves a cluster of buildings.
(C) Treatment and treatment residue disposal
portions of toilets with composting tanks, oil flush mechanisms, or similar in
house devices.
(D) Treatment or
pumping units from the incoming flange when located on private property and
conveyance pipes, if any, to the collector sewer.
(E) The cost of restoring individual system
building sites to their original condition.
(22) Necessary safety equipment applicable to
Federal, State and local requirements.
(23) A portion of the costs of collection
system maintenance equipment as determined by the Commissioner.
(24) The cost of mobile equipment necessary
for the operation of the overall pollution abatement facility, transmission of
wastewater or sludge or for the maintenance of equipment. These items include:
(A) Portable stand-by generators.
(B) Large portable emergency pumps to provide
"pump-around" capability in event of pump station failure or pipeline
breaks.
(C) Sludge or septic
tanktrucks, trailers, and other vehicles having as their sole purpose the
transportation of liquid or dewatered wastes from the collector point
(including individual or on-site systems) to the pollution abatement facility
or disposal site.
(25)
Replacement parts identified and approved in advance by the Commissioner as
necessary to assure uninterrupted operation of the pollution abatement
facility, provided they are critical parts or major system components which
are:
(A) Not immediately available and/or
whose procurement involves an extended "lead-time";
(B) Identified as critical by the equipment
supplier(s); or
(C) Critical but
not included in inventory provided by the equipment supplier(s).
(26) Allowable costs for
infiltration/inflow include:
(A) The cost of
sewer system and pollution abatement facility capacity adequate to transport
and treat nonexcessive infiltration/inflow.
(B) The costs of sewer system rehabilitation
necessary to eliminate excessive infiltration/inflow as determined in a sewer
system evaluation study under Section
22a-439-3(g).
(27) The costs of royalties for
the use of rights in a patented process or product with the prior approval of
the Commissioner.
(28) The cost of
legal and engineering services incurred by the municipality in deciding
procurement protests and defending their decisions in protest appeals with the
prior approval of the Commissioner.
(29) The cost of the services of the prime
engineer required under Section
22a-439-4(n)
(10) during the first year following initiation of operation of the pollution
abatement facility.
(30) The costs
of municipal employees attending training workshops/seminars that are necessary
to provide instruction in administrative, fiscal or contracting procedures
required to complete the construction of the pollution abatement facility, if
approved in advance by the Commissioner.
(b)
Unallowable Project Costs.
Costs which are not necessary for the construction of a
pollution abatement facility are unallowable. Such costs include, but are not
limited to:
(1) Basin or areawide
planning not directly related to the project.
(2) Bonus payments not legally required for
completion of construction before a contractual completion date.
(3) Personal injury compensation or damage
arising out of the project whether determined by arbitration, negotiation, or
otherwise.
(4) Unallowable costs
for small and onsite systems include:
(A)
Modification to physical structure of homes or commercial
establishments.
(B) Conveyance
pipes from the house to the treatment unit located on users property.
(C) Wastewater generating fixtures such as
commodes, sinks, tubs and drains.
(5) Fines and penalties due to violations of,
or failure to comply with Federal, State, or local laws and
regulations.
(6) Costs outside the
scope of the approved project.
(7)
Approval, preparation, issuance and sale of bonds or other forms of
indebtedness required to finance the project and the interest on
them.
(8) Ordinary operating
expenses of local government, such as salaries and expenses of a mayor, city
council members, or city attorney, except as provided in Section
22a-439-4(f)
(13).
(9) The costs of acquisition
(including associated legal, administrative, and engineering) of sewer
rights-of-way, pollution abatement facility sites (including small systems
sites), sanitary landfill sites and sludge disposal sites, except as provided
in Section
22a-439-4(c).
(10) Costs for which payment has been or will
be received under any Federal assistance program.
(11) The cost of vehicles used primarily for
transportation, such as pickup trucks.
(12) Costs of equipment or materials acquired
in violation of the procurement provisions of these requirements.
(13) The cost of furnishings including
draperies, furniture and office equipment.
(14) The cost of ordinary site and building
maintenance equipment such as lawn mowers, snowblowers and vacuum
cleaners.
(15) Costs of monitoring
equipment used by industry for sampling and analysis of industrial discharges
to a municipal pollution abatement facility.
(16) Construction of privately-owned
pollution abatement facilities, including pretreatment facilities, except for
individual systems.
(17)
Preparation of applications, including a plan of study and permits required by
Federal, State or local laws and regulations.
(18) Administrative, engineering and legal
activities associated with the establishment of special departments, agencies,
commissions, regions, districts or other units of government.
(19) The cost of a pollution abatement
facility or any part thereof that would provide capacity for new habitation or
other establishments to be located on environmentally sensitive land such as
wetlands, floodplains, or prime agricultural lands.
(20) The costs of legal services for
assessing the merits of defending or negotiating the settlement of a claim by
or against the municipality.
(21)
All incremental costs of delay due to the award of any significant
subagreements for construction more than 12 months after the construction grant
award.
(c)
Allowable Project Costs, If Approved.
(1) The cost (including associated legal,
administrative and engineering costs) of land acquired in fee simple or by
lease or easement that will be an integral part of the treatment process or
that will be used for the ultimate disposal of residues resulting from such
treatment provided the Commissioner approves it in the grant agreement. These
costs include:
(A) The cost of a reasonable
amount of land, considering irregularities in application patterns, and the
need for buffer areas, berms, and dikes.
(B) The cost of land acquired for a soil
absorption system for a group of two or more homes.
(C) The cost of land acquired for composting
or temporary storage of compost residues which result from wastewater
treatment.
(D) The cost of land
acquired for storage of treated wastewater in land treatment systems before
land application.
(E) The cost paid
by the municipality for eligible land in excess of just compensation based on
the appraised value, the municipality's record of negotiation or a condemnation
proceeding, as determined by the Commissioner, shall be unallowable.
(2) The cost associated with the
preparation of the pollution abatement facility site before, during and, to the
extent agreed on in the grant agreement, after building. These costs include:
(A) The cost of demolition of existing
structures on the pollution abatement facilities site (including rights-of-way)
if building cannot be undertaken without such demolition.
(B) The cost of removal, relocation or
replacement of utilities, for which the municipality is legally obligated to
pay under Section
22a-470
of the Connecticut General Statutes.
(C) The cost of restoring streets and
rights-of-way to their original condition. The need for such restoration must
result directly from the construction and is generally limited to repaving the
width of trench.
(3) The
cost of acquiring all or part of existing publicly or privately owned pollution
abatement facilities provided all following criteria are met:
(A) The acquisition, in and of itself
considered apart from any upgrade, expansion or rehabilitation, provides new
pollution control benefits.
(B) The
acquired pollution abatement facility was not built with previous Federal or
State financial assistance.
(C) The
primary purpose of the acquisition is not the reduction, elimination, or
redistribution of public or private debt.
(d)
Required Provisions for
Architectural/Engineering Contracts
(1)
Subagreement Enforcement
(A) Commissioner's
Authority. At a municipality's request the Commissioner may provide technical
and legal assistance in the administration and enforcement of any subagreement
related to a pollution abatement facility for which a State grant was made and
intervene in any civil action involving the enforcement of such subagreements,
including subagreement disputes which are the subject of either arbitration or
court action. Any assistance to be provided is at the discretion of the
Commissioner and in a manner determined by him to best serve the public
interest. Factors which the Commissioner may consider in determining whether to
provide assistance include:
(i) Available
agency resources.
(ii) Planned or
ongoing enforcement action.
(iii)
The municipality's demonstration of good faith in attempting to resolve the
contract matters at issue.
(iv) The
municipality's adequate documentation of the need for assistance.
(v) The state's interest in the contract
matters at issue.
(B)
Municipality request. The municipality's request for technical or legal
assistance should be submitted in writing and be accompanied by documentation
adequate to inform the Commissioner of the nature and necessity of the
requested assistance.
(C) Privity
of subagreement. The Commissioner's technical or legal involvement in any
subagreement dispute will not make the Commissioner a party to any subagreement
entered into by the municipality.
(D) Municipality responsibility. The
provisions of technical or legal assistance under this section in no way
releases the municipality from its obligations under these regulations or
affects the Commissioner's right to take remedial action against a municipality
that fails to carry out those obligations.
(2) Subagreement Provisions
Municipalities shall include subagreement clauses that meet the
following requirements:
(A) Each
subagreement must include provisions defining a sound and complete agreement,
including the:
(i) Nature, scope, and extent
of work to be performed.
(ii) Time
frame for performance.
(iii) Total
cost of the subagreement.
(iv)
Payment provisions.
(B)
All subagreements awarded in excess of $10,000 shall contain provisions
requiring compliance with State and Federal equal employment opportunity laws
and regulations.
(3)
Model Subagreement Clauses
Muncipalities must include the following clauses or their
equivalent in all subagreements for architectural or engineering services.
Municipalities may substitute other terms for "municipality" and "engineer" in
their subagreements.
(A) Supersession
The municipality and the engineer agree that this and other
appropriate clauses in this section or their equivalent apply to the state
grant eligible work to be performed under this subagreement and that these
clauses supersede any conflicting provisions of this subagreement.
(B) Privity of Subagreement
This subagreement is expected to be funded in part with funds
from the State of Connecticut, Department of Environmental Protection (DEP).
Neither the State nor any of its departments, agencies, or employees is or will
be a party to this subagreement or any lower tier subagreement. This
subagreement is subject to regulations adopted pursuant to Section
22a-439
of the Connecticut General Statutes in effect on the date of the grant award
for the project.
(C)
Changes
(i) The municipality may at any time,
by written order, make changes within the general scope of this subagreement in
the services or work to be performed. If such changes cause an increase or
decrease in the engineer's cost or time required to perform any services under
this agreement, whether or not changed by any order, an equitable adjustment
shall be made and this subagreement shall be modified in writing. The engineer
must assert any claim for adjustment under this clause in writing within 30
days from the date of receipt by the engineer of the notification of change
unless the municipality grants additional time before the date of final
payment.
(ii) No services for which
an additional compensation will be charged by the engineer shall be furnished
without the written authorization of the municipality.
(D) Termination
(i) This subagreement may be terminated in
whole or in part in writing by either party in the event of substantial failure
by the other party to fulfill obligations under this subagreement through no
fault of the terminating party. However, no termination may be effected unless
the other party is given not less than ten (10) calendar days written notice
(delivered by certified mail, return receipt requested) of intent to terminate
and an opportunity for consultation with the terminating party prior to
termination.
(ii) This subagreement
may be terminated in whole or in part in writing by the municipality for its
convenience, provided that the engineer is given not less than ten (10)
calendar days written notice (delivered by certified mail, return receipt
requested) of intent to terminate and an opportunity for consultation with the
terminating party prior to termination.
(iii) In the event that there is a
modification of the Commissioner's requirements relating to the services to be
performed under this agreement after the date of execution of this agreement,
the increased or decreased cost of performance of the services provided for in
the agreement shall be reflected in an appropriate modification of this
agreement.
(iv) If termination for
default is effected by the municipality, an equitable adjustment in the price
provided for in this subagreement shall be made, but no amount shall be allowed
for anticipated profit on unperformed services or other work and any payment
due to the engineer at the time of termination may be adjusted to cover any
additional costs to the municipality because of the engineer's default. If
termination for default is effected by the engineer; or if termination for
convenience is effected by the municipality; the equitable adjustment shall
include a reasonable profit for services or other work performed. The equitable
adjustment for any termination shall provide for payment to the engineer for
services rendered and expenses incurred prior to the termination, in addition
to termination and settlement costs reasonably incurred by the engineer
relating to commitments which had become firm prior to the
termination.
(v) Upon receipt of a
termination action pursuant to paragraphs (i) or (ii) above, the engineer shall
promptly discontinue all services affected (unless the notice directs
otherwise) and deliver or otherwise make available to the municipality all
data, drawings, specifications, reports, estimates, summaries and such other
information and materials as may have been accumulated by the engineer in
performing this subagreement, whether completed or in process.
(vi) Upon termination under paragraphs (i) or
(ii) above, the municipality may take over the work and prosecute the same to
completion by subagreement with another party or otherwise.
(vii) If, after termination for failure of
the engineer to fulfill contractual obligations, it is determined that the
engineer had not failed to fulfill contractual obligations, the termination
shall be deemed to have been for the convenience of the municipality. In such
event, adjustment of the price provided for in this subagreement shall be made
as provided in paragraph (iv) of this clause.
(E) Remedies
Except as may be otherwise provided in this subagreement, all
claims, counterclaims, disputes, and other matters in question between the
municipality and the engineer arising out of or relating to this subagreement
or the breach thereof will be decided by arbitration, if the parties mutually
agree, or in a court of competent jurisdiction within the district in which the
municipality is located.
(F) Price Reduction for Defective Cost or
Pricing Data (This clause is applicable if the amount of the agreement exceeds
$100,000.)
The engineer warrants that cost and pricing data submitted for
evaluation with respect to negotiation of prices for negotiated subagreements
and lower tier subagreements is based on current, accurate, and complete data
supported by books and records. If the municipality or Commissioner determines
that any price, including profit, negotiated in connection with this
subagreement, any lower tier subagreement, or any amendment thereunder was
increased by any significant sums because the data provided was incomplete,
inaccurate, or not current at the time of submission, then such price, cost or
profit shall be reduced accordingly, and the subagreement shall be modified in
writing to reflect such reduction.
(NOTE-Since the subagreement is subject to reduction under this
clause by reason of defective cost or pricing data submitted in connection with
certain subcontractors, the engineer may wish to include a clause in each such
subcontract requiring the subcontractor to appropriately indemnify the
engineer. It is also expected that any subcontractor subject to such
indemnification will generally require substantially similar indemnification
for defective cost or pricing data required to be submitted by lower tier
subcontractors.)
(G) Audit;
Access to Records
(i) The engineer shall
maintain books, records, documents, and other evidence directly pertinent to
performance on grant work under this agreement in accordance with generally
accepted accounting principles and practices consistently applied. The engineer
shall also maintain the financial information and data used by the engineer in
the preparation or support of the cost submission required for any negotiated
subagreement or change order in effect on the date of execution of this
agreement and a copy of the cost summary shall be submitted to the
municipality. The Commissioner or any of his duly authorized representatives
shall have access to all such books, records, documents, and other evidence for
inspection, audit, and copying during normal business hours. The engineer will
provide proper facilities for such access and inspection.
(ii) The engineer agrees to include
paragraphs (i) through (v) of this clause in all his contracts and all lower
tier subcontracts directly related to project performance that are in excess of
$10,000, and to make paragraphs (i) through (v) of this clause applicable to
all change orders directly related to project performance.
(iii) Audits conducted under this provision
shall be in accordance with generally accepted auditing standards and
established procedures and guidelines of the reviewing or audit
agency(ies).
(iv) The engineer
agrees to the disclosure of all information and reports resulting from access
to records under paragraphs (i) and (ii) of this clause, to any of the agencies
referred to in paragraph (i), provided that the engineer is afforded the
opportunity for an audit exit conference and an opportunity to comment and
submit any supporting documentation on the pertinent portions of the draft
audit report and that the final audit report will include written comments of
reasonable length, if any, of the engineer.
(v) The engineer shall maintain and make
available records under paragraphs (i) and (ii) of this clause during
performance on grant funded work under this agreement and until 3 years from
the date of final grant payment for the project. In addition, those records
which relate to any "Dispute" appeal under a grant agreement, to litigation, to
the settlement of claims arising out of such performance, or to costs or items
to which an audit exception has been taken, shall be maintained and made
available until 3 years after the date of resolution of such appeal,
litigation, claim, or exception.
(H) Covenant Against Contingent Fees
The engineer warrants that no person or selling agency has been
employed or retained to solicit or secure this subagreement upon an agreement
or understanding for a commission, percentage, brokerage, or contingent fee,
except bona fide employees or bona fide established commercial or selling
agencies maintained by the engineer for the purpose of securing business. For
breach or violation of this warranty the municipality shall have the right to
annul this agreement without liability or in its discretion to deduct from the
contract price or consideration, or otherwise recover, the full amount of such
commission, percentage, brokerage, or contingent fee.
(I) Gratuities
(i) If the municipality finds after a notice
and hearing that the engineer, or any of the engineer's agents or
representatives, offered or gave gratuities (in the form of entertainment,
gifts, or otherwise), to any official, employee, or agent of the municipality
or the State, in an attempt to secure a subagreement of favorable treatment in
awarding, amending, or making any determinations related to the performance of
this agreement, the municipality may, by written notice to the engineer,
terminate this agreement. The municipality may also pursue other rights and
remedies that the law or this subagreement provides. However, the existence of
the facts on which the municipality bases such findings shall be in issue and
may be reviewed in proceedings under the Remedies clause of the
agreement.
(ii) In the event this
subagreement is terminated as provided in paragraph (i), the municipality may
pursue the same remedies against the engineer as it could pursue in the event
of a breach of the subagreement by the engineer and, as a penalty, in addition
to any other damages to which it may be entitled by law, to exemplary damages
in an amount (as determined by the municipality) which shall be not less than
three nor more than ten times the costs the engineer incurs in providing any
such gratuities to any such officer or employee.
(J) Responsibility of the Engineer
(i) The engineer shall be responsible for the
professional quality, technical accuracy, timely completion, and the
coordination of all designs, drawings, specifications, reports, and other
services furnished by the engineer under this subagreement. The engineer shall,
without additional compensation, correct or revise any errors, omissions, or
other deficiencies in his designs, drawings, specifications, reports, and other
services.
(ii) The engineer shall
perform the professional services necessary to accomplish the work required to
be performed under this subagreement, in accordance with this subagreement and
applicable requirements of the Commissioner in effect on the date of execution
of the assistance agreement for this project.
(iii) Approval by the municipality or the
Commissioner of drawings, designs, specifications, reports, and incidental work
or materials furnished hereunder shall not in any way relieve the engineer of
responsibility for the technical adequacy of his work. Neither the
municipality's nor Commissioner's review, approval, acceptance, or payment for
any of the services shall be construed as a waiver of any rights under this
subagreement or of any cause of action arising out of the performance of this
subagreement.
(iv) The engineer
shall be and shall remain liable, in accordance with applicable law, for all
damages to the municipality or the State caused by the engineer's negligent
performance of any of the services furnished under this subagreement, except
for errors, omissions, or other deficiencies to the extent attributable to the
municipality, municipality-furnished data, or any third party. The engineer
shall not be responsible for any time delays in the project caused by
circumstances beyond the engineer's control.
(v) The engineer's obligations under this
clause are in addition to the engineer's other expressed or implied warranties
under this subagreement or State law and in no way diminish any other rights
that the municipality may have against the engineer for faulty materials,
equipment, or work.
(K)
Payment
(i) Payment shall be made in
accordance with the payment schedule incorporated in this subagreement as soon
as practicable upon submission of statements requesting payment by the engineer
to the municipality. If no such payment schedule is incorporated in this
subagreement, the payment provisions of paragraph (ii) of this clause shall
apply.
(ii) The engineer may
request monthly progress payments and the municipality shall make them as soon
as practicable upon submission of statements requesting payment by the engineer
to the municipality. When such progress payments are made, the municipality may
withhold up to ten (10) percent of the vouchered amount until satisfactory
completion by the engineer of work and services within a step called for under
this subagreement. When the municipality determines that the work under this
subagreement or any specified task hereunder is substantially complete and that
the amount of retained percentages is in excess of the amount considered by the
municipality to be adequate for its protection, it shall release to the
engineer such excess amount.
(iii)
No payment request made under paragraph (i) or (ii) of this clause shall exceed
the estimated amount and value of the work and services performed by the
engineer under this subagreement. The engineer shall prepare the estimates of
work performed and shall supplement them with such supporting data as the
municipality may require.
(iv) Upon
satisfactory completion of the work performed under this subagreement, as a
condition precedent to final payment under this subagreement or to settlement
upon termination of the subagreement, the engineer shall execute and deliver to
the municipality a release of all claims against the municipality arising under
or by virtue of this subagreement, other than such claims, if any, as may be
specifically exempted by the engineer from the operation of the release in
stated amounts to be set forth therein.
(L) Copyrights and Rights in Data
(i) The engineer agrees that any plans,
drawings, designs, specifications, computer programs (which are substantially
paid for with State grant funds), technical reports, operating manuals, and
other work submitted with an engineering report, or with a design or
construction grant application or which are specified to be delivered under
this subagreement or which are developed or produced and paid for under this
subagreement (referred to in this clause as "Subject Data") and including all
raw data obtained or generated by the engineer during the course of his work
under this subagreement are subject to certain rights in the United States.
These rights include the right to use, duplicate, and disclose such subject
data, in whole or in part, in any manner for any purpose whatsoever, and to
have others do so. If the material is copyrightable, the engineer may copyright
it, subject to the rights of the State described herein, but the municipality
and the State reserve a royalty-free, nonexclusive, and irrevocable license to
reproduce, publish, and use such materials, in whole or in part, and to
authorize others to do so. The engineer shall include appropriate provisions to
achieve the purpose of this condition in all subcontracts expected to produce
copyrightable subject data.
(ii)
All such subject data furnished by the engineer pursuant to this subagreement
are instruments of his services in respect to the project. It is understood
that the engineer does not represent such subject data to be suitable for reuse
on any other project or for any other purpose. If the municipality reuses the
subject data without the engineer's specific written verification or
adaptation, such reuse will be at the risk of the municipality without
liability to the engineer. Any such verification or adaptation will entitle the
engineer to further compensation at rates agreed upon by the municipality and
the engineer.
(e)
Required Provisions for
Construction Contracts
Municipalities must include, when appropriate, the following
clauses or their equivalent in each subagreement and may substitute other terms
for "grantee" and "contractor" in their subagreements:
(1) Supersession
The grantee and the contractor agree that the following general
provisions or their equivalent apply to state grant eligible work to be
performed under this contract and that these provisions supersede any
conflicting provisions of this contract.
(2) Privity of contract
This contract is expected to be funded in part by the State of
Connecticut. Neither the State, nor any of its departments, agencies, or
employees is or will be a party to this contract or any lower tier subcontract.
This contract is to be subject to regulations adopted in accordance with
Section
22a-439
of the Connecticut General Statutes.
(3) Changes for contracts for construction:
(A) The municipality may, at any time,
without notice to any surety, by written order designated or indicated to be a
change order, make any change in the work within the general scope of the
subagreement, including but not limited to changes:
(i) In the specifications (including drawings
and designs);
(ii) In the time,
method, or manner of performance of the work;
(iii) In the grantee-furnished facilities,
equipment, materials, services, or site; or
(iv) Directing acceleration in the
performance of the work.
(B) A change order shall also be any other
written or oral order (including direction, instruction, interpretation or
determination) from the municipality which causes any change, provided the
contractor gives the municipality written notice stating the date,
circumstances, and source of the order and that the contractor regards the
order as a change order.
(C) Except
as provided in this clause, no order, statement, or conduct of the municipality
shall be treated as a change under this clause or entitle the contractor to an
equitable adjustment.
(D) If any
change under this clause causes an increase or decrease in the contractor's
cost or the time required to perform any part of the work under this contract,
whether or not changed by any order, an equitable adjustment shall be made and
the subagreement modified in writing. However, for claims based on defective
specifications, no claim for any change under (B) above shall be allowed for
any costs incurred more than 20 days before the contractor gives written notice
as required in paragraph (B). In the case of defective specifications for which
the municipality is responsible, the equitable adjustment shall include any
increased cost reasonably incurred by the contractor in attempting to comply
with those defective specifications.
(E) If the contractor intends to assert a
claim for an equitable adjustment under this clause, he must, within thirty
(30) days after receipt of a written change order under (A) of this change
clause or the furnishing of a written notice under (B) of this clause, submit
to the grantee a written statement setting forth the general nature and
monetary extent of such claim. The municipality may extend the 30-day period.
The statement of claim may be included in the notice under (B) of this
clause.
(F) No claim by the
contractor for an equitable adjustment shall be allowed if made after final
payment under this contract.
(4) Changes for contracts for supplies.
(A) The municipality may at any time, by a
written order and without notice to the sureties, make changes within the
general scope of this subagreement in any one or more of the following:
(i) Drawings, designs, or specifications,
where the supplies to be furnished are to be specially manufactured for the
grantee;
(ii) Method of shipment or
packing; and
(iii) Place of
delivery.
(B) If any
change causes an increase or decrease in the cost or the time required to
perform any part of the work under this subagreement, whether or not changed by
any such order, an equitable adjustment shall be made in the subagreement price
or delivery schedule, or both, and the subagreement shall be modified in
writing. Any claim by the contractor for adjustment under this clause must be
asserted within 30 days from the date of receipt by the contractor of the
notification change. If the municipality decides that the facts justify such
action, the municipality may receive and act upon any such claim asserted at
any time before final payment under this subagreement. Where the cost of
property made obsolete or excess as a result of a change is included in the
contractor's claim for adjustment, the grantee shall have the right to
prescribe the manner of disposition of such property. Nothing in this clause
shall excuse the contractor from proceeding with the subagreement as
changed.
(5) Differing
site conditions.
(A) The contractor shall
promptly, and before such conditions are disturbed, notify the municipality in
writing of:
(i) Subsurface or latent
physicial conditions at the site differing materially from those indicated in
this subagreement, or
(ii) Unknown
physical conditions at the site, of an unusual nature, differing materially
from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this subagreement. The municipality shall
promptly investigate the conditions and, if it finds that conditions are
materially different and will cause an increase or decrease in the contractor's
cost or the time required to perform any part of the work under this
subagreement, whether or not changed as a result of such conditions, an
equitable adjustment shall be made and the subagreement modified in
writing.
(B) No claim of
the contractor under this clause shall be allowed unless the contractor has
given notice required in (A) of this clause. However, the municipality may
extend the prescribed time.
(C) No
claim by the contractor for an equitable adjustment shall be allowed if
asserted after final payment under this subagreement.
(6) Suspension of work
(A) The municipality may order the
Contractor, in writing to suspend, delay, or interrupt all or any part of the
work for such period of time as the municipality may determine to be
appropriate for the convenience of the municipality.
(B) If the performance of all or any part of
the work is suspended, delayed, or interrupted for an unreasonable period of
time by an act of the municipality in administration of the contract, (or if no
time is specified, within a reasonable time), an adjustment shall be made for
any increase in the cost of performance of this contract (excluding profit)
necessarily caused by such unreasonable suspension, delay, or interruption and
the contract modified in writing. However, no adjustment shall be made under
this clause for any suspension, delay, or interruption to the extent that
performance would have been so suspended, delayed, or interrupted by any other
cause, including the fault or negligence of the contractor, or for which an
equitable adjustment is provided for or excluded under any other provision of
the contract.
(C) No claim under
this clause shall be allowed for any costs incurred more than 20 days before
the contractor notified the municipality in writing of the act or failure to
act involved (this requirement does not apply to a claim resulting from a
suspension order), and unless the claim, in an amount stated, is asserted in
writing as soon as practicable after the termination of such suspension, delay,
or interruption, but not later than the date of final payment under the
contract.
(7)
Termination
(A) This contract may be
terminated in whole or in part in writing by either party in the event of
substantial failure by the party to fulfill its obligations under this
subagreement through no fault of the terminating party, provided that no
termination may be effected unless the other party is given not less than ten
(10) calendar days written notice (delivered by certified mail, return receipt
requested) of intent to terminate and an opportunity for consultation with the
terminating party prior to termination.
(B) This contract may be terminated in whole
or in part in writing by the municipality for its convenience, provided that
the contractor is given not less than ten (10) calendar days written notice
(delivered by certified mail, return receipt requested) of intent to terminate
and an opportunity for consultation with the terminating party prior to
termination.
(C) If termination for
default is effected by the municipality, an equitable adjustment in the price
provided for in this contract shall be made but no amount shall be allowed for
anticipated profit on unperformed services or other work, and any payment due
to the contractor at the time of termination may be adjusted to cover any
additional costs to the municipality because of the contractor's default. If
termination for default is effected by the contractor, or if termination for
convenience is effected by the municipality, the equitable adjustment shall
include a reasonable profit for services or other work performed. The equitable
adjustment for any termination shall provide for payment to the contractor for
services rendered and expenses incurred prior to the termination in addition to
termination settlement costs reasonably incurred by the contractor relating to
commitments which had become firm prior to the termination.
(D) Upon receipt of a termination action
pursuant to (A) or (B) above, the contractor shall promptly discontinue all
services affected (unless the notice directs otherwise), and deliver or
otherwise make available to the recipient all data, drawings, specifications,
reports, estimates, summaries and such other information and materials as may
have been accumulated by the contractor in performing this contract whether
completed or in process.
(E) Upon
termination under (A) or (B) of this clause the municipality may take over the
work and may award another party a contract to complete the work under this
contract.
(F) If, after termination
for failure of the contractor to fulfill contractual obligations, it is
determined that the contractor had not failed to fulfill contractual
obligations, the termination shall be deemed to have been for the convenience
of the municipality. In such event, adjustment of the price provided for in
this contract shall be made as provided in (C) of this clause.
(8) Remedies.
Except as may be otherwise provided in this contract, all
claims, counter-claims, disputes, and other matters in question between the
municipality and the contractor arising out of or relating to this contract or
the breach thereof will be decided by arbitration if the parties mutually agree
or in a court of competent jurisdiction within the district in which the
municipality is located.
(9) Price reduction for defective cost or
pricing data.
(NOTE-This clause is applicable to any contract negotiated
between the municipality and its contractor in excess of $500,000; negotiated
change orders in excess of $500,000 or 10 percent of the contract, whichever is
less, affecting the price of a formally advertised, competitively awarded,
fixed price contract; or any lower tier subcontract or purchase order in excess
of $500,000 or 10 percent of the assistance agreement, whichever is less, under
a contract other than a formally advertised, competitively awarded, fixed price
subagreement. This clause is not applicable for contracts to the extent that
they are awarded on the basis of effective price competition.)
The contractor and subcontractor, where appropriate, warrant
that cost and pricing data submitted for evaluation with respect to negotiation
of prices for negotiated contracts, lower tier subcontracts and change orders
is based on current, accurate, and complete data supported by their books and
records. If the municipality or the Commissioner determines that any price
(including profit) negotiated in connection with this contract, any lower tier
subcontract, or any amendment thereunder was increased by any significant sums
because the data provided was incomplete, inaccurate, or not current at the
time of submission, then such price, cost or profit shall be reduced
accordingly, and the contract shall be modified in writing to reflect such
reduction.
(NOTE-Since the contract is subject to reduction under this
clause by reason of defective cost or pricing data submitted in connection with
lower tier subcontracts, the contractor may wish to include a clause in each
lower tier subcontract requiring the lower tier subcontractor to appropriately
indemnify the contractor. It is also expected that any lower tier subcontractor
subject to such indemnification will generally require substantially similar
indemnification for defective cost or pricing data required to be submitted by
lower tier contractors.)
(10) Audit; Access to records.
(A) The contractor shall maintain books,
records, documents, and other evidence directly pertinent to performance on
grant work under this contract in accordance with generally accepted accounting
principles and practices consistently applied. The contractor shall also
maintain the financial information and data used by the contractor in the
preparation or support of the cost submission required under Section
22a-439-4(g)
(6) for any negotiated contract or change order and a copy of the cost summary
submitted to the municipality. The municipality and the Commissioner or any of
his authorized representatives shall have access to all such books, records,
documents, and other evidence for the purpose of inspection, audit and copying
during normal business hours. The contractor will provide proper facilities for
such access and inspection.
(B) If
this is a formally advertised, competitively awarded, fixed price contract, the
contractor agrees to make (A) through (F) of this clause applicable to all
negotiated change orders and contract amendments affecting the contract price.
In the case of all other types of prime contracts, the contractor agrees to
include (A) through (F) of this clause in all his subcontracts in excess of
$10,000 and to make paragraphs (A) through (F) of this clause applicable to all
change orders directly related to project performance.
(C) Audits conducted under this provision
shall be in accordance with generally accepted auditing standards and
established procedures and guidelines of the reviewing or audit
agency(ies).
(D) The contractor
agrees to disclose all information and reports resulting from access to records
under (A) and (B) of this clause to any of the agencies referred to in
(A).
(E) Records under (A) and (B)
above shall be maintained and made available during performance on assisted
work under this contract and until three years from the date of final State
payment for the project. In addition, those records which relate to any dispute
appeal arising under a grant assistance agreement, to litigation, to the
settlement of claims arising out of such performance, or to costs or items to
which an audit exception has been taken, shall be maintained and made available
until three years after the date of resolution of such appeal, litigation,
claim, or exception.
(F) This right
of access clause (with respect to financial records) applies to:
(i) Negotiated prime subagreements;
(ii) Negotiated change orders or contract
amendments in excess of $10,000 affecting the price of any formally advertised,
competitively awarded, fixed price contract, and
(iii) Subcontracts or purchase orders under
any contract other than a formally advertised, competitively awarded, fixed
price contract. However, this right of access does not apply to a prime
contract, lower tier subcontract, or purchase order awarded after effective
price competition, except with respect to records pertaining directly to
contract performance, (excluding any financial records of the contractor); if
there is any indication that fraud, gross abuse, or corrupt practices may be
involved or if the contract is terminated for default or for
convenience.
(11) Covenant against contingent fees.
The contractor warrants that no person or selling agency has
been employed or retained to solicit or secure this contract upon an agreement
or understanding for a commission, percentage, brokerage, or contingent fee,
excepting bona fide employees or bona fide established commercial or selling
agencies maintained by the contractor for the purpose of securing business. For
breach or violation of this warranty the grantee shall have the right to annul
this agreement without liability or, at its discretion, to deduct from the
contract price or consideration, or otherwise recover the full amount of such
commission, percentage, brokerage, or contingent fee.
(12) Gratuities.
(A) If the municipality finds, after a notice
and hearing, that the contractor, or any of the contractor's agents or
representatives, offered or gave gratuities (in the form of entertainment,
gifts, or otherwise, to any official, employee, or agent of the municipality or
the State, in an attempt to secure a contract or favorable treatment in
awarding, amending, or making any determinations related to the performance of
this agreement, the municipality may, by written notice to the contractor,
terminate this agreement.The municipality may also pursue other rights and
remedies that the law or this agreement provides. However, the existence of the
facts on which the municipality bases such findings shall be in issue and may
be reviewed in proceedings under the Remedies clause of this
agreement.
(B) In the event this
contract is terminated, as provided in (A) in this clause, the recipient may
pursue the same remedies against the contractor as it could pursue in the event
of a breach of the contract by the contractor and, as a penalty, in addition to
any other damages to which it may be entitled by law, to exemplary damages in
an amount (as determined by the grantee) which shall be not less than three nor
more than ten times the costs the contractor incurs in providing any such
gratuities to any such officer or employee.
(13) Responsibility of the contractor.
(A) The contractor agrees to perform all work
under this agreement in accordance with this agreement's designs, drawings, and
specifications.
(B) The contractor
warrants and guarantees for a period of one (1) year from the date of
substantial completion of the system that the completed system is free from all
defects due to faulty materials, equipment or workmanship; and the contractor
shall promptly make whatever adjustments or corrections necessary to cure such
defects, including repairs of any damage to other parts of the system resulting
from such defects. The municipality shall give notice to the contractor of
observed defects with reasonable promptness. In the event that the contractor
fails to make adjustments, repairs, corrections or other work that may be made
necessary by such defect, the municipality may do so and charge the contractor
the cost incurred. The performance bond shall remain in full force and effect
through the guarantee period.
(C)
The contractor's obligations under this clause are in addition to the
contractor's other express or applied warranties under this agreement or State
law and in no way diminish any other rights that the municipality may have
against the contractor for faulty material, equipment, or work.
(14) Final payment.
Upon satisfactory completion of the work performed under this
agreement, as a condition before final payment under this agreement, or as a
termination settlement under this agreement, the contractor shall execute and
deliver to the municipality a release of all claims against the municipality
arising under or by virtue of this agreement, except claims which are
specifically exempted by the contractor to be set forth therein. Unless
otherwise provided in this agreement or by State law or otherwise expressly
agreed to by the parties to this agreement, final payment under this agreement
or settlement upon termination of this agreement shall not constitute a waiver
of the municipality's claims against the contractor or his sureties under this
agreement or applicable performance and payment bonds.
(f)
Procurement
Requirements-General
(1) Applicability.
This defines the responsibilities of the State and the
municipality and the minimum procurement standards for each municipality's
procurement system.
(2)
Municipality responsibility.
(A) The
municipality is responsible for the settlement and satisfactory completion in
accordance with sound business judgment and good administrative practice of all
contractual and administrative issues arising out of subagreements entered into
under the assistance agreement. This includes issuance of invitations for bids
or requests for proposals, selection of contractors, award of subagreements,
settlement of protests, claims, disputes and other related procurement
matters.
(B) The municipality shall
maintain a subagreement administration system to assure that contractors
perform in accordance with the terms, conditions and specifications of their
subagreements.
(C) The municipality
shall review its proposed procurement actions to avoid purchasing unnecessary
or duplicative items.
(D) The
municipality shall consider consolidating its procurement or dividing it into
parts to obtain a more economical purchase.
(E) Where appropriate, the municipality shall
make an analysis of lease versus purchase alternatives in its procurement
actions.
(F) A municipality may
request technical assistance from the Commissioner for the administration and
enforcement of any subagreement awarded under this section. However, such
assistance does not relieve the municipality of its responsibilities under this
section.
(G) A municipality may use
innovative procurement methods or procedures only if it receives the
Commissioner's prior written approval.
(3) Municipality reporting requirements.
The municipality shall request, in writing, the Commissioner's
authorization to award each construction subagreement which has an aggregate
value over $10,000. The request shall include:
(A) Name, address, telephone number and
employee identification number of the construction contractor,
(B) Amount of the award,
(C) Estimated starting and completion
dates,
(D) Project number, name and
site location of the project, and
(E) Copy of the tabulations of bids or offers
and the name of each bidder or offeror.
(4) Copies of contract documents.
The municipality must promptly submit to the Commissioner
copies of any prime contract or modification thereof, and revisions to plans
and specifications.
(5)
Limitations on subagreement award.
(A) The
municipality shall award subagreements only to responsible contractors that
possess the potential ability to perform successfully under the terms and
conditions of a proposed procurement. A responsible contractor is one that has:
(i) Financial resources, technical
qualifications, experience, an organization and facilities adequate to carry
out the project, or a demonstrated ability to obtain these.
(ii) Resources to meet the completion
schedule contained in the subagreement.
(iii) A satisfactory performance record for
completion of subagreements.
(iv)
Accounting and auditing procedures adequate to control property, funds and
assets.
(v) Demonstrated compliance
or willingness to comply with the civil rights, equal employment opportunity,
labor laws and other statutory requirements.
(B) The municipality shall not make awards to
contractors who have been suspended or debarred by Connecticut State Agencies.
The municipality shall refer violations of law to the local or
State officials having the proper jurisdiction.
(7) Competition.
(A) The municipality shall conduct all
procurement transactions in a manner that provides maximum open and free
competition.
(B) Procurement
practices shall not unduly restrict or eliminate competition. Examples of
practices considered to be unduly restrictive include:
(i) Noncompetitive practices between
firms.
(ii) Organizational
conflicts of interest.
(iii)
Unnecessary, experience and bonding requirements.
(iv) Local laws, ordinances, regulations or
procedures which give local bidders or proposers preference over other bidders
or proposers in evaluating bids or proposals.
(v) Placing unreasonable requirements on
firms in order for them to qualify to do business.
(C) The municipality may use a
prequalification list(s) of persons, firms or products if it:
(i) Updates its prequalified list(s) at least
every six months.
(ii) Reviews and
acts on each request for prequalification made more than thirty (30) days
before the closing date for receipt of proposals or bid opening.
(iii) Gives adequate public notice of its
prequalification procedures in accordance with the public notice
procedures.
(D) A
municipality may not use a prequalified list(s) of persons or firms if the
procedure unnecessarily restricts competition.
(8) Profit.
(A) Municipalities must assure that only fair
and reasonable profits are paid to contractors awarded subagreements under
State assistance agreements.
(B)
The municipality shall negotiate profit as a separate element of price for each
subagreement in which there is no price competition, or where price is based on
cost analysis.
(C) Where the
grantee receives two or more bids, profit included in a formally advertised,
competitively bid, fixed price subagreement shall be considered
reasonable.
(D) Off-the-shelf or
catalog supplies are exempt from this section.
(9) Use of small, minority, and women's
businesses.
The municipality must take affirmative steps to assure that
small, minority, and women's business are used whenever possible.
(10) Privity of subagreement.
The State shall not be a party to any subagreement nor to any
solicitation or request for proposals.
(11) Documentation.
(A) Procurement records and files for
procurements in excess of $10,000 shall include the following:
(i) Basis for contractor selection.
(ii) Written justification for selection of
the procurement method.
(iii)
Written justification for use of any specification which does not provide for
maximum free and open competition.
(iv) Written justification for the type of
subagreement.
(v) Basis for award
cost or price, including a copy of the cost or price analysis made and
documentation of negotiations.
(vi)
A municipality must state the reasons in writing for rejecting any or all bids
and the justification for procurements on a noncompetitively negotiated basis
and make them available for public inspection.
(12) Specifications
(A) Nonrestrictive specifications.
(i) No specification for bids or statement of
work in connection with such works shall be written in such a manner as to
contain proprietary, exclusionary or discriminatory requirements other than
those based upon performance, unless such requirements are necessary to test or
demonstrate a specific thing or to provide for necessary interchangeability of
parts and equipment, or at least one brand name or trade name of comparable
quality or utility is listed and is followed by the words "or equal." If brand
or trade names are specified, the municipality must be prepared to identify to
the Commissioner, or in any protest action, the salient requirements (relating
to the minimum needs of the project) which must be met by any offeror. The
single base bid method of solicitation for equipment and parts for
determination of a low, responsive bidder may not be utilized. With regard to
materials, if a single material is specified, the municipality must be prepared
to substantiate the basis for the selection of the material.
(ii) Project specifications shall, to the
extent practicable, provide for maximum use of structures, machines, products,
materials, construction methods, and equipment which are readily available
through competitive procurement, or through standard or proven production
techniques, methods, and processes.
(B) Sole source restriction. A specification
shall not require the use of structures, materials, equipment, or processes
which are known to be available only from a sole source, unless the
Commissioner determines that the municipality's engineer has adequately
justified in writing that the proposed use meets the particular project's
minimum needs or the Commissioner determines that use of a single source is
necessary to promote innovation.
(C) Experience clause restriction. The
general use of experience clauses requiring equipment manufacturers to have a
record of satisfactory operation for a specified period of time or of bonds or
deposits to guarantee replacement in the event of failure is restricted to
special cases where the municipality's engineer adequately justifies any such
requirement in writing. Where such justification has been made, submission of a
bond or deposit shall be permitted instead of a specified experience period.
The period of time for which the bond or deposit is required should not exceed
the experience period specified.
(13) Force account work.
(A) The municipality must receive the
Commissioner's prior written approval for use of the force account method for
any planning, design work or construction work unless the grant agreement
stipulates the force account method.
(B) The Commissioner may approve the force
account method upon the municipality's demonstration that it possesses the
necessary competence required to accomplish such work and that the work can be
accomplished more economically by use of the force account method, or emergency
circumstances dictate its use.
(C)
Use of the force account method for construction work shall generally be
limited to minor portions of a project.
(14) Code of conduct.
(A) The municipality shall maintain a written
code or standards of conduct which shall govern the performance of its
officers, employees, or agents engaged in the award and administration of
subagreements supported by State funds. No employee, officer or agent of the
municipality shall participate in the selection, award or administration of a
subagreement supported by State funds if a conflict of interest, real or
apparent, would be involved.
(B)
Such a conflict would arise when:
(i) Any
employee, officer or agent of the municipality, any member of the immediate
families, or their partners, have a financial or other interest in the firm
selected for award.
(ii) An
organization which may receive or has been awarded a subagreement employs, or
is about to employ, any person under (B) (i) of this Section.
(C) The municipality's officers,
employees or agents shall neither solicit nor accept gratuities, favors or
anything of monetary value from contractors, potential contractors or other
parties to subagreements.
(D)
Municipalities may set minimum rules where the financial interest is not
substantial or the gift is an unsolicited item of nominal value.
(E) To the extent permitted by State or local
law or regulations, the municipality's code of conduct shall provide for
penalties, sanctions or other disciplinary actions for violations of the code
by the municipality's officers, employees or agents or by contractors or their
agents.
(15) Payment to
consultants.
(A) For all State assistance
agreements, the State will limit its participation in the salary rate
(excluding overhead) paid to individual consultants retained by a municipality
or by a municipality's contractors or subcontractors to the maximum daily rate
for a GS-18 federal employee. (Municipalities may, however, pay contractors and
subcontractors more than this amount.) This limitation applies to consultation
services of designated individuals with specialized skills who are paid at a
daily or hourly rate. The rate does not include transportation and subsistence
costs for travel performed; municipalities will pay these in accordance with
their normal travel reimbursement practices.
(B) Subagreements with firms for services
which are awarded using these procurement requirements are not affected by this
limitation.
(16) Cost
and price considerations.
(A) The municipality
shall conduct a cost analysis of all negotiated change orders and all
negotiated subagreements estimated to exceed $10,000.
(B) The municipality shall conduct a price
analysis of all formally advertised procurements estimated to exceed $10,000 if
there are fewer than three bidders.
(C) For negotiated procurement, contractors
and subcontractors shall submit cost or pricing data in support of their
proposals to the municipality.
(17) Small purchases.
(A) Small Purchase Procurement.
If the aggregate amount involved in any one procurement
transaction does not exceed $10,000 including estimated handling and freight
charges, overhead and profit, the municipality may use small purchase
procedures.
(B) Small
Purchase Procedures.
Small purchase procedures are relatively simple procurement
methods that are sound and appropriate for procurement of services, supplies or
other property costing in the aggregate not more than $10,000.
(C) Requirements for Competition.
(i) Municipalities shall not divide a
procurement into smaller parts to avoid the dollar limitation for competitive
procurement.
(ii) Municipalities
shall obtain price or rate quotations from an adequate number of qualified
sources.
(18)
Negotiation and award of subagreements.
(A)
Unless the request for proposals states that award may be based on initial
offers alone, the municipality must conduct meaningful negotiations with the
best qualified offerors with acceptable proposals within the competitive range,
and permit revisions to obtain best and final offers. The best qualified
offerors must have equal opportunities to negotiate or revise their proposals.
During negotiations, the municipality must not disclose the identity of
competing offerors or any information from competing proposals.
(B) The municipality must award the
subagreement to the responsible offeror whose proposal is determined in writing
to be the most advantageous to the municipality, taking into consideration
price and other evaluation criteria set forth in the request for
proposals.
(C) The municipality
must promptly notify unsuccessful offerors that their proposals were
rejected.
(D) The municipality must
document its procurement file to indicate how proposals were evaluated, what
factors were used to determine the best qualified offerors within the
competitive range, and what factors were used to determine the subagreement
award.
(19) Optional
selection procedure for negotiation and award of subagreement for architectural
and engineering services.
(A) The
municipality may evaluate and select an architect or engineer using the
procedures in this subdivision in place of the procedures in "Negotiation and
award of subagreements" in subdivision (18).
(B) The municipality may use responses from
requests for statement of qualifications to determine the most technically
qualified architects or engineers.
(C) After selecting and ranking the most
qualified architects or engineers, the municipality will request technical
proposals from those architects or engineers and inform them of the evaluation
criteria the municipality will use to rank the proposals.
(D) The municipality shall then select and
determine, in writing, the best technical proposal.
(E) After selecting the best proposal, the
municipality shall attempt to negotiate fair and reasonable compensation with
that offeror.
(F) If the
municipality and the offeror of the best proposal cannot agree on the amount of
compensation, the municipality shall formally terminate negotiations with that
offeror. The municipality shall then negotiate with the offeror with the next
best proposal. This process will continue until the municipality reaches
agreement on compensation with an offeror with an acceptable proposal. Once the
municipality terminates negotiations with an offeror, the municipality cannot
go back and renegotiate with that offeror.
(20) Noncompetitive negotiation procurement
method.
Noncompetitive negotiation may be used only when the award of a
subagreement is not feasible under small purchase, formal advertising, or
competitive negotiation procedures. The grantee may award a noncompetitively
negotiated subagreement only under the following circumstances:
(A) The item is available only from a single
source;
(B) A public exigency or
emergency exists and the urgency for the requirement will not permit a delay
incident to competitive procurement;
(C) After solicitation from a number of
sources, competition is determined to be inadequate.
(21) Use of the same architect or engineer
during construction.
(A) If the municipality
is satisfied with the qualifications and performance of the architect or
engineer who provided any or all of the planning or design services for the
project, it may wish to retain that firm or individual during construction of
the project. The municipality may do so without further public notice and
evaluation of qualifications provided that it received a planning or design
grant and selected the architect or engineer in accordance with these
procurement regulations.
(B)
However, if the municipality uses the procedures in (A) to retain an architect
or engineer, any construction subagreements between the architect or engineer
and the municipality must meet the procurement provisions of Section
22a-439-4(g)
(5).
(22) Negotiation of
subagreements.
(A) Formal advertising, with
adequate purchase descriptions, sealed bids, and public openings shall be the
required method of procurement unless negotiation under (B) of this section is
necessary to accomplish sound procurement.
(B) All negotiated procurement shall be
conducted in a manner to provide to the maximum practicable extent open and
free competition appropriate to the type of project work to be performed. The
municipality is authorized to negotiate subagreements if any of the following
conditions exist:
(i) Public exigency will not
permit the delay incident to formally advertised procurement (e.g. an emergency
procurement).
(ii) The aggregate
amount involved does not exceed $10,000.
(iii) The material or service to be procured
is available from only one person or entity. If the procurement is expected to
aggregate more than $10,000, the municipality must document its file with a
justification of the need for noncompetitive procurement, and provide such
documentation to the Commissioner on request.
(iv) The procurement is for personal or
professional services (including architectural or engineering services) or for
any service that a university or other educational institution may
render.
(v) No responsive,
responsible bids at acceptable price levels have been received after formal
advertising, and the Commissioner's prior written approval has been
obtained.
(vi) The procurement is
for materials or services where the price is established by law.
(vii) The procurement is for technical items
or equipment requiring standardization and interchangeability of parts with
existing equipment.
(viii) The
procurement is for experimental, developmental or research services.
(23) Enforcement.
If the Commissioner determines that the municipality has failed
to comply with any of these procurement provisions, he may impose any of the
following sanctions:
(A) The grant may
be terminated or annulled under Section
22a-439-4(s).
(B) Project costs directly related to the
noncompliance may be disallowed.
(C) Payment otherwise due to the municipality
of up to 10 percent may be withheld.
(D) Project work may be suspended under Sec.
22a-439-4(e)
(6).
(E) A noncomplying
municipality may be found nonresponsible or ineligible for future state funding
assistance or a noncomplying contractor may be found nonresponsible or
ineligible for approval for future contract award under state grants.
(F) An injunction may be entered or other
equitable relief afforded by a court of appropriate jurisdiction.
(G) Such other administrative or judicial
action may be instituted if it is legally available and appropriate.
(24) Contract Enforcement.
(A) Commissioner authority. At the request of
a municipality, the Commissioner is authorized to provide technical and legal
assistance in the administration and enforcement of any contract related to
pollution abatement facilities for which a State grant was made and to
intervene in any civil action involving the enforcement of such contracts,
including contract disputes which are the subject of either arbitration or
court action in accordance with the requirements of Section
22a-439-4(d)
(1).
(g)
Architectural/Engineering Procurement Requirements.
(1) Type of Contract (Subagreement).
(A) General. Cost-plus-percentage-of-cost and
percentage-of-construction-cost contracts are prohibited. Cost reimbursement,
fixed price, or per diem contracts or combinations of these may be negotiated
for architectural or engineering services. A fixed price contract is generally
used only when the scope and extent of work to be performed is clearly defined.
In most other cases, a cost reimbursement type of contract is more appropriate.
A per diem contract may be used if no other type of contract is appropriate. An
incentive fee may be used if the municipality submits an adequate independent
cost estimate and price comparison.
(B) Cost reimbursement contract. Each cost
reimbursement contract must clearly establish a cost ceiling which the engineer
may not exceed without formally amending the contract and a fixed dollar profit
which may not be increased except in the case of a contract amendment to
increase the scope of work.
(C)
Fixed price contract. An acceptable fixed price contract is one which
establishes a guaranteed maximum price which may not be increased unless a
contract amendment increases the scope of work.
(D) Compensation procedures. If, under either
a cost reimbursement or fixed price contract, the municipality desires to use a
multiplier type of compensation, all of the following must apply:
(i) The multiplier and the portions of the
multiplier allocable to overhead and allocable to profit have been specifically
negotiated.
(ii) The portion of the
multiplier allocable to overhead includes only allowable items of cost under
the cost principles.
(iii) The
portions of the multiplier allocable to profit and allocable to overhead have
been separately identified in the contract.
(iv) The fixed price contract includes a
guaranteed maximum price for completion of the specifically defined scope of
work; and the cost reimbursement contract includes a fixed dollar profit which
may not be increased except in the case of a contract amendment which increases
the scope of work.
(E)
Per diem contracts. A per diem agreement may be utilized only after a
determination that a fixed price or cost reimbursement type contract is not
appropriate. Per diem agreements should be used only to a limited extent, e.g.,
where the first task under a planning grant involves establishing the scope and
cost of succeeding planning tasks, or for incidental services such as expert
testimony or intermittent professional or testing services. (Resident engineer
and resident inspection services should generally be compensated at cost plus
fixed fee). Cost and profit included in the per diem rate must be specifically
negotiated and displayed separately in the engineer's proposal.
The contract must clearly establish a price ceiling which may
not be exceeded without formally amending the contract.
(2) Public Notice. Adequate public
notice must be given of the requirement for architectural or engineering
services for all subagreements.
(A) Public
announcement. A notice of request for qualifications should be published in
professional journals, newspapers, or publications of general circulation over
a reasonable area and, in addition, if desired, through posted public notices
or written notification directed to interested persons, firms, or professional
organizations inviting the submission of statements of qualifications. The
announcement must clearly state the deadline and place for submission of
qualification statements.
(B)
Exceptions. Public notice is not required under the following circumstances:
(i) For design or construction phases of a
grant funded project if the municipality is satisfied with the qualifications
and performance of any engineer who performed all or any part of the planning
or design work and the engineer has the capacity to perform the subsequent
steps.
(ii) The municipality
desires the same engineer to provide architectural or engineering services for
the subsequent steps or for subsequent segments of design work under one grant
if a single pollution abatement facilities is segmented into two or more
construction projects. If the design work is accordingly segmented so that the
initial contract for preparation of construction drawings and specifications
does not cover the entire pollution abatement facilities to be built under one
grant and the municipality may use the same engineering firm that was selected
for the initial segment of design work for subsequent segments.
(3) Evaluation of
Qualifications.
(A) The municipality shall
review the qualifications of firms which responded to the announcement or were
on the prequalified list and shall uniformly evaluate the firms.
(B) Qualifications shall be evaluated through
an objective process (e.g., the appointment of a board or committee which, to
the extent practicable, should include persons with technical
skills).
(C) Criteria which should
be considered in the evaluation of candidates for submission of proposals
should include:
(i) Specialized experience
and technical competence of the candidate or firm and its personnel (including
a joint venture, association or professional subcontractor) considering the
type of services required and the complexity of the project.
(ii) Past record of performance on contracts
with the municipality, other government agencies or public bodies, and with
private industry, including such factors as control of costs, quality of work,
and ability to meet schedules.
(iii) The candidate's capacity to perform the
work (including any specialized services) within the time limitations,
considering the firm's current and planned workload.
(iv) The candidate's familiarity with the
types of problems applicable to the project.
(v) Avoidance of personal and organizational
conflicts of interest.
(4) Solicitation and Evaluation of Proposals.
(A) Solicitation of Professional Services
Proposals.
(i) Requests for professional
services proposals must be sent to no fewer than three candidates who either
responded to the public announcement or were selected from the prequalified
list, unless, after good faith effort to solicit qualifications, fewer than
three qualified candidates respond, in which case all qualified candidates must
be provided request for proposals.
(ii) Requests for professional services
proposals must be in writing and must contain the information necessary to
enable a prospective offeror to prepare a proposal properly. The request for
proposals must include a solicitation statement and must inform offerors of the
evaluation criteria.
(iii)
Submission deadline. Requests for proposals must clearly state the deadline and
place for submission.
(B) Evaluation of Proposals.
(i) All proposals submitted in response to
the request for professional services proposals must be uniformly evaluated.
The municipality shall also evaluate the candidate's proposed method of
accomplishing the work required.
(ii) Proposals shall be evaluated through an
objective process (e.g., the appointment of a board or committee) which, to the
extent practicable, should include persons with technical skills. Oral
(including telephone) or written interviews should be conducted with top rated
proposers, and information derived therefrom shall be treated on a confidential
basis.
(iii) Municipalities must
base their determinations of qualified offerors and acceptable proposals solely
on the evaluation criteria stated in the request for proposals.
(5) Negotiation.
(A) Municipalities are responsible for
negotiation of their contracts for architectural or engineering services.
Contract procurement including negotiation may be performed by the municipality
directly or by another person or firm retained for the purpose. Contract
negotiations may include the services of technical, legal, audit, or other
specialists to the extent appropriate.
(B) Negotiations may be conducted in
accordance with State or local requirements, as long as they meet the minimum
requirements as set forth in this section.
(C) The object of negotiations with any
candidate shall be to reach agreement on the provisions of the proposed
contract. The municipality and the candidate shall discuss, as a minimum:
(i) The scope and extent of work and other
essential requirements.
(ii)
Identification of the personnel and facilities necessary to accomplish the work
within the required time including, where needed, employment of additional
personnel, subcontracting, joint venture, etc.
(iii) Provisions of the required technical
services in accordance with regulations and criteria established for the
project.
(iv) A fair and reasonable
price for the required work, to be determined in accordance with the cost and
profit considerations.
(6) Cost and Price Considerations.
(A) The candidate(s) selected for negotiation
shall submit to the municipality for review sufficient cost and pricing data to
enable the municipality to ascertain the necessity and reasonableness of costs
and amounts proposed and the allowability and eligibility of costs
proposed.
(B) The municipality
shall submit to the Commissioner for review:
(i) Documentation of the public notice of
need for architectural or engineering services and selection
procedures.
(ii) The cost and
pricing data the selected engineer submitted.
(iii) A certification of review and
acceptance of the selected engineer's cost and price.
(iv) A copy of the proposed
subagreement.
(C) The
Commissioner shall review the complete subagreement procurement procedure and
approve the municipality's compliance with appropriate procedures before the
municipality awards the subagreement.
(D) Cost review.
(i) The municipality shall review proposed
subagreement costs.
(ii) As a
minimum, proposed subagreement costs shall be presented on EPA form 5700-41 on
which the selected engineer shall certify that the proposed costs reflect
complete, current, and accurate cost and pricing data applicable to the date of
anticipated subagreement award.
(iii) In addition to the specific elements of
cost, the estimated amount of profit shall be set forth separately in the cost
summary for fixed price contracts and a maximum total dollar amount of profit
shall be set forth separately in the cost summary for cost reimbursement
contracts.
(iv) The municipality
may require more detailed cost data than the form requires in order to
substantiate the reasonableness of proposed subagreement costs. The
Commissioner may require more detailed documentation only when the selected
engineer is unable to certify that the cost and pricing data used are complete,
current, and accurate. The state may on a selected basis, perform a pre-award
cost analysis on any subagreement. A provisional overhead rate should be agreed
upon before contract award.
(v) The
engineer shall have an accounting system which accounts for costs in accordance
with generally accepted accounting principles. This system shall provide for
the identification, accumulation, and segregation of allowable and unallowable
project costs among projects. Allowable project costs shall be determined by
the Commissioner. The engineer must propose and account for costs in a manner
consistent with his normal accounting procedures.
(vi) Subagreements awarded on the basis of a
review of a cost element summary and a certification of complete, current, and
accurate cost and pricing data shall be subject to downward renegotiation or
recoupment of funds where the Commissioner determines that such certification
was not based on complete, current, and accurate cost and pricing data or was
not based on allowable costs at the time of award.
(7) Profit.
The objective of negotiations shall be the exercise of sound
judgment and good administrative practice including the determination of a fair
and reasonable profit based on the firm's assumption of risk and input to total
performance and not merely the application of a predetermined percentage
factor. For the purpose of subagreements under State grants, profit is defined
as the net proceeds obtained by deducting all allowable costs (direct and
indirect) from the price. (This definition of profit may vary from the firm's
definition of profit for other purposes.) Profit on a subagreement and each
amendment to a subagreement under a grant should be sufficient to attract
engineers who possess the talent and skills necessary for the accomplishment of
project objectives, and to stimulate efficient and expeditious completion of
the project. Where cost review is performed, the municipality should review the
estimate of profit as it reviews all other elements of price.
(8) Award of Subagreement.
The municipality shall obtain the written approval of the
Commissioner prior to the award of any subagreement or amendment.
(B) The municipality shall promptly notify
unsuccessful candidates.
(9) Required Solicitation and Subagreement
Provisions.
(A) Required solicitation
statement. Requests for qualifications or proposals must include the following
statement, as well as the proposed terms of the subagreement.
Any contract awarded under this request for
(qualifications/professional proposals) is expected to be funded in part by a
grant from the State of Connecticut, Department of Environmental Protection.
This procurement will be subject to requirements contained in Section
22a-439
4 (f), (g), and (m) of the Regulations of Connecticut State Agencies. The State
of Connecticut will not be a party to this request for
(qualifications/professional proposals) or any resulting contract.
(B) Content of subagreement. Each
subagreement must adequately define the scope and extent of project work; the
time for performance and completion of the contract work including, where
appropriate, dates for completion of significant project tasks; personnel and
facilities necessary to accomplish the work within the required time; the
extent of subcontracting and consultant agreements; and payment provisions. If
any of these elements cannot be defined adequately for later tasks or steps at
the time of contract execution, the contract should not include the subsequent
tasks or steps at that time.
(10) Subagreement Payments-Architectural or
Engineering Services.
The municipality shall make payment to the engineer in
accordance with the payment schedule incorporated in the engineering agreement.
Any retainage is at the option of the municipality. No payment request made by
the engineer under the agreement may exceed the estimated amount and value of
the work and services performed.
(11) Subcontracts under Subagreements for
Architectural or Engineering Services.
Neither award and execution of subcontracts under a prime
contract for architectural or engineering services nor the procurement and
negotiation procedures used by the engineer in awarding such subcontracts are
required to comply with any of the provisions, selection procedures, policies
or principles set forth herein.
(h)
Construction Contract Procurement
Requirements.
(This section applies to construction contracts in excess of
$10,000 awarded by municipalities for any construction projects.)
(1) Type of Contract.
Each contract shall be a fixed price (lump sum or unit price or
a combination of the two) contract, unless the Commissioner gives advance
written approval for the municipality to use some other acceptable type of
contract. The cost-plus-percentage-of-cost contract shall not be used in any
event.
(2) Formal
Advertising.
Each contract shall be awarded after formal advertising, unless
negotiations are permitted in accordance with Sec.
22a-439-4(f)
(18). Formal advertising shall be in accordance with the following:
(A) Adequate public notice. The municipality
will cause adequate notice to be given of the solicitation by publication in
newspapers or journals of general circulation beyond the municipality's
locality (statewide, generally), inviting bids on the project work and stating
the method by which bidding documents may be obtained or examined. Where the
estimated cost of construction is $10 million or more, the municipality should
publish the notice in trade journals of nationwide distribution. The
municipality may solicit bids directly from bidders if it maintains a bidders
list.
(B) Adequate time for
preparing bids. Adequate time, generally not less than 30 days, must be allowed
between the date when public notice is first published and the date by which
bids must be submitted. Bidding documents (including specifications and
drawings) shall be available to prospective bidders from the date when such
notice is first published.
(C)
Adequate bidding documents. The municipality shall prepare a reasonable number
of bidding documents (invitations for bids) and shall furnish them upon request
on a first-come, first-served basis. The municipality shall maintain a complete
set of bidding documents and shall make them available for inspection and
copying by any party. The bidding documents shall include:
(i) A complete statement of the work to be
performed, including necessary drawings and specifications, and the required
completion schedule.
(ii) The terms
and conditions of the contract to be awarded.
(iii) A clear explanation of the method of
bidding and the method of evaluation of bid prices, and the basis and method
for award of the contract.
(iv)
Responsibility requirements or criteria which will be employed in evaluating
bidders.
(v) The following
statement:
Any contract or contracts awarded under this invitation for
bids are expected to be funded in part by a grant from the State of Connecticut
(Department of Environmental Protection). Neither the State of Connecticut nor
any of its departments, agencies or employees is or will be a party to this
invitation for bids or any resulting contract. This procurement will be subject
to the requirements contained in Section
22a-439-4(f),
(h), and (m) of the Regulations of Connecticut State Agencies.
(vi) A copy of Sec.
22a-439-4(f),
(h), and (m).
(vii) The prevailing
State Wage Determination as applicable.
(D) Sealed bids. The municipality shall
provide for bidding by sealed bid and for the safeguarding of bids received
until public opening.
(E) Addenda
to bidding documents. If a municipality desires to amend any part of the
bidding documents (including drawings and specifications) during the period
when bids are being prepared, the addenda shall be communicated in writing to
all firms which have obtained bidding documents at least five (5) working days
prior to the bid opening.
(F) Bid
modifications. A firm which has submitted a bid shall be allowed to modify or
withdraw its bid before the time of bid opening.
(G) Public opening of bids. The municipality
shall provide for a public opening of bids at the place, date and time
announced in the bidding documents.
(H) Award to the low, responsive, responsible
bidder.
(i) After bids are opened, the
municipality shall evaluate them in accordance with the methods and criteria
set forth in the bidding documents.
(ii) The municipality may reserve the right
to reject all bids. Unless all bids are rejected for good cause, award shall be
made to the low, responsive, responsible bidder.
(iii) If the municipality intends to make the
award to a firm which did not submit the lowest bid, it shall prepare a written
statement before any award, explaining why each lower bidder was deemed
nonresponsible or nonresponsive. The Municipality shall retain such statement
in its files and forward a copy to the Commissioner for review.
(iv) Local laws, ordinances, regulations or
procedures which are designed or which operate to give local bidders preference
over other bidders shall not be employed in evaluating bids.
(v) If an unresolved procurement review issue
or a protest relates only to award of a subcontract or procurement of an item
under the prime contract, and resolution of that issue or protest is unduly
delaying performance of the prime contract, the Commissioner may authorize
award and performance of the prime contract before resolution of the issue or
protest, if the Commissioner determines that resolution of the protest will not
affect the placement of the prime contract bidders and will not materially
affect initial performance of the prime contract; and that award of the prime
contract is in the State's best interest, will not materially affect resolution
of the protest, and is not barred by State or local law.
(vi) The municipality shall not reject a bid
as nonresponsive for failure to list or otherwise indicate the selection of a
subcontractor(s) or equipment, unless the municipality has unambiguously stated
in the solicitation documents that such failure to list shall render a bid
nonresponsive and shall cause rejection of a bid.
(i)
Negotiation
of Contract Amendments (Change Orders).
(1) Grantees are responsible for the
negotiation of construction contract changes orders. This function may be
performed by the grantee directly or, if authorized, by his engineer. During
negotiations with the contractor the grantee shall:
(A) Make certain that the contractor has a
clear understanding of the scope and extent of work and other essential
requirements.
(B) Assure that the
contractor demonstrates that he will make available or will obtain the
necessary personnel, equipment and materials to accomplish the work within the
required time.
(C) Assure a fair
and reasonable price for the required work.
(2) The contract price or time may be changed
only by a change order. When negotiations are required, they shall be conducted
in accordance with (C) or (D) of this section, as appropriate. The value of any
work covered by a change order or of any claim for increase or decrease in the
contract price shall be determined by the method set forth in paragraphs (2)
(A) through (2) (C) of this section, whichever is most advantageous to the
municipality.
(A) Unit prices.
(i) Original bid items. Unit prices
previously approved are acceptable for pricing changes of original bid items.
However, when changes in quantities exceed 15 percent of the original bid
quantity and the total dollar change of that bid item is significant, the
municipality shall review the unit price to determine if a new unit price
should be negotiated.
(ii) New
items. Unit prices of new items shall be negotiated.
(B) A lump sum to be negotiated.
(C) Cost reimbursement. The actual cost for
labor, direct overhead, materials, supplies, equipment, and other services
necessary to complete the work plus an amount to be agreed upon to cover the
cost of general overhead and profit to be negotiated.
(3) For each change order not in excess of
$100,000 the contractor shall submit sufficient cost and pricing data to the
municipality to enable the municipality to determine the necessity and
reasonableness of costs and amounts proposed, and the allowability and
eligibility of costs proposed.
(4)
For each change order in excess of $100,000, the contractor shall submit to the
municipality for review sufficient cost and pricing data as described in
paragraphs (4) (A) through (4) (E) of this section to enable the municipality
to ascertain the necessity and reasonableness of costs and amounts proposed,
and the allowability and eligibility of costs proposed.
(A) The contractor shall certify that
proposed costs reflect complete, current, and accurate cost and pricing data
applicable to the date of the change order.
(B) In addition to the specific elements of
cost, the estimated amount of profit shall be set forth separately in the cost
summary for fixed price change orders and a specific total dollar amount of
profit will be set forth separately in the cost summary for cost reimbursement
change orders.
(C) The municipality
may require more detailed cost data in order to substantiate the reasonableness
of proposed change order costs. The Commissioner may, on a selected basis,
perform a detailed cost analysis on any change order.
(D) For costs under cost reimbursement change
orders, the contractor shall have an accounting system which accounts for such
costs in accordance with generally accepted accounting principles. This system
shall provide for the identification, accumulation and segregation of allowable
and unallowable change orders. Allowable change order costs shall be determined
in accordance with Sections
22a-439-4(a),
(b) and (c). The contractor must propose and account for such costs in a manner
consistent with his normal accounting procedures.
(E) Change orders awarded on the basis of
review of a cost element summary and a certification of complete, current, and
accurate cost and pricing data shall be subject to downward renegotiation and
recoupment of funds where a subsequent audit substantiates that such
certification was not based on complete, current and accurate cost and pricing
data.
(5) Review by
Commissioner. The municipality shall submit, before the execution of any change
order in excess of $100,000, to the Commissioner for review and approval:
(A) The cost and pricing data the contractor
submitted.
(B) A certification of
review and acceptance of the contractor's cost or price.
(C) A copy of the proposed change
order.
(6) Profit. The
objective of negotiations shall be the exercise of sound business judgment and
good administrative practice including the determination of a fair and
reasonable profit based on the contractor's assumption of risk and input to
total performance and not merely the application of a predetermined percentage
factor. For the purpose of negotiated change orders to construction contracts
under grants, profit is defined as the net proceeds obtained by deducting all
allowable costs (direct and indirect) from the price. The municipality should
review the estimate of profit as it reviews all other elements of
price.
(7) Related work. Related
work shall not be split into two amendments or change orders merely to keep it
under $100,000 and thereby avoid the requirements of (4) of this section. For
change orders which include both additive and deductive items:
(A) If any single item (additive or
deductive) exceeds $100,000 the requirements of (4) of this section shall be
applicable.
(B) If no single
additive or deductive item has a value of $100,000 but the total price of the
change order is over $100,000, the requirements of (4) of this section shall be
applicable.
(C) If the total of
additive items of work in the change order exceeds $100,000 or the total of
deductive items of work in the change order exceeds $100,000 and the net price
of the change order is less than $100,000, the requirements of (4) of this
section shall be applicable.
(j)
Subcontracts under Construction
Contracts.
(1) The award or execution
of subcontracts by a prime contractor under a construction contract awarded to
the prime contractor by the municipality, and the procurement and negotiation
procedures used by prime contractors in awarding or executing subcontracts are
not required to comply with any of the provisions, selection procedures,
policies or principles set forth in Section
22a-439-4(f)
or (h) except those specifically stated in this section. In addition, the bid
protest procedures of Section
22a-439-4(m)
are not available to parties executing subcontracts with prime contractors
except as specifically provided in that section.
(2) The award or execution of subcontracts by
a prime contractor under a formally advertised, competitively bid, fixed price
construction contract awarded to the prime contractor by the municipality, and
the procurement and negotiation procedures used by such prime contractors in
awarding or executing such subcontracts must comply with any municipality
procurement system, State small, minority and women's business policy, (Section
22a-439-4(f)
(9)), negotiation of contract amendments (Section
22a-439-4(i)
), and clauses (8) and (9) of Section
22a-439-4(e).
(k)
Progress Payments to
Contractors.
(1) Except as State law
otherwise provides, municipalities should make prompt progress payments to
prime contractors and prime contractors should make prompt progress payments to
subcontractors and suppliers for eligible construction, material, and equipment
costs, including those of undelivered, specifically manufactured equipment,
incurred under a contract under a State-funded construction grant.
(2) Conditions of progress payments. For
purposes of this section, progress payments are defined as follows:
(A) Payments for work in place.
(B) Payments for materials or equipment which
have been delivered to the construction site, or which are stockpiled in the
vicinity of the construction site, in accordance with the terms of the
contract, when conditional or final acceptance is made by or for the
municipality. The municipality shall assure that items for which progress
payments have been made are adequately insured and are protected through
appropriate security measures. Costs of such insurance and security are
allowable costs.
(C) Payments for
undelivered specifically manufactured items or equipment (excluding
off-the-shelf or catalog items) as work on them progresses. Such payments must
be made if provisions therefor are included in the bid and contract documents.
Such provisions may be included at the option of the municipality only when all
of the following conditions exist:
(i) The
equipment is so designated in the project specifications.
(ii) The equipment to be specifically
manufactured for the project could not be readily utilized on nor diverted to
another job.
(iii) A fabrication
period of more than 6 months is anticipated.
(3) Protection of progress payments made for
specifically manufactured equipment. The municipality will assure protection of
the State's interest in progress payments made for items or equipment referred
to in (2) (C) of this section. The protection must be acceptable to the
municipality and must take the form of:
(A)
Securities negotiable without recourse, condition or restrictions, a progress
payment bond, or an irrevocable letter of credit provided to the municipality
through the prime contractor by the subcontractor or supplier; and
(B) For items or equipment in excess of
$200,000 in value which are manufactured in a jurisdiction in which the Uniform
Commercial Code is applicable, the creation and perfection of a security
interest under the Uniform Commercial Code which is reasonably adequate to
protect the interests of the municipality.
(4) Limitations on progress payments for
specifically manufactured equipment.
(A)
Progress payments made for specifically manufactured equipment or items shall
be limited to the following:
(i) A first
payment upon submission by the prime contractor of shop drawings for the
equipment or items in an amount not exceeding 15 percent of the contract or
item price plus appropriate and allowable higher tier costs; and
(ii) Subsequent to the municipality's release
or approval for manufacture, additional payments not more frequently than
monthly thereafter up to 75 percent of the contract or item price plus
appropriate and allowable higher tier costs. However, payment may also be made
in accordance with the contract and grant terms and conditions for ancillary
onsite work before delivery of the specifically manufactured equipment or
items.
(B) In no case
may progress payments for undelivered equipment or items under (4) (A) (i) or
(4) (A) (ii) of this section be made in an amount greater than 75 percent of
the cumulative incurred costs allocable to contract performance with respect to
the equipment or items. Submission of a request for any such progress payments
must be accompanied by a certification furnished by the fabricator of the
equipment or item that the amount of progress payment claimed constitutes not
more than 75 percent of cumulative incurred costs allocable to contract
performance and, in addition, in the case of the first progress payment request
a certification that the amount claimed does not exceed 15 percent of the
contract or item price quoted by the fabricator.
(C) As used in this section, the term "costs
allocable to contract performance" with respect to undelivered equipment or
items includes all expenses of contract performance which are reasonable,
allocable to the contract, consistent with sound and generally accepted
accounting principles and practices consistently applied and which are not
excluded by the contract.
(5) Enforcement. A subcontractor or supplier
which is determined by the Commissioner to have frustrated the intent of the
provisions regarding progress payments for major equipment or specifically
manufactured equipment through intentional forfeiture of its bond or failure to
deliver the equipment may be determined nonresponsible and ineligible for
further work under State funded projects.
(6) Contract provisions. Where applicable,
appropriate provisions regarding progress payments must be included in each
contract and subcontract.
(7)
Implementation. The foregoing progress payments policy should be implemented in
invitations for bids under construction grants. If provision for progress
payments is made after contract award, it must be for consideration that the
municipality deems adequate.
(l)
Retention from Progress
Payments.
(1) The municipality may
retain a portion of the amount otherwise due the contractor. The amount the
municipality retains shall be limited to the following:
(A) Withholding of not more than 5 percent of
the payment claimed until work is 50 percent complete.
(B) When work is 50 percent complete,
reduction of the withholding to 2 percent of the dollar value of all work
satisfactorily completed to date, provided that the contractor is making
satisfactory progress and there is no specific cause for greater
withholding.
(C) When the work is
substantially complete (operational or beneficial occupancy), the withheld
amount shall be further reduced below 2 percent to only that amount necessary
to assure completion.
(D) The
municipality may reinstate up to 5 percent withholding if the municipality
determines, at its discretion, that the contractor is not making satisfactory
progress or there is other specific cause for such withholding.
(E) The municipality may accept securities
negotiable without recourse, condition or restrictions, a release of retainage
bond, or an irrevocable letter of credit provided by the contractor instead of
all or part of the cash retainage.
(2) The foregoing retention policy shall be
implemented with respect to all construction projects. Appropriate provision to
assure compliance with this policy must be included in the bid documents for
such projects initially or by addendum before the bid submission date and as a
special condition in the grant agreement or in a grant amendment.
(3) A municipality which delays disbursement
of grant funds will be required to credit to the State of Connecticut all
interest earned on those funds.
(m)
Protests.
(1) General. A protest based upon an alleged
violation of the procurement requirements may be filed against a municipality's
procurement action by a party with an adversely affected direct financial
interest. Any such protest must be received by the municipality within the time
period in (2) (A) of this section. The municipality is responsible for
resolution of the protest before taking the protested action, in accordance
with (4) of this section, except as otherwise provided by (10) of this
section.
(2) Time limitations.
(A) A protest under (4) of this section
should be made as early as possible during the procurement process to avoid
disruption of or unnecessary delay to the procurement process. A protest
authorized by (4) of this section must be received by the municipality within
one week after the basis for the protest is known or should have been known,
whichever is earlier.
(i) In the case of an
alleged violation of the specification requirements of Section
22a-439-4(f)
(12), relating to specifications (e.g., that a product fails to qualify as an
"or equal") a protest need not be filed prior to the opening of bids. The
municipality may resolve the issue before receipt of bids or proposals through
a written or other formal determination, after notice and opportunity to
comment is afforded to any party with a direct financial interest.
(ii) When an alleged violation of the
specification requirements first arises subsequent to the receipt of bids or
proposals, the municipality must decide the protest if the protest was received
by the municipality within one week of the time that the municipality's written
or other formal notice is first received.
(B) A protest appeal authorized by (5) of
this section must be filed in a court of competent jurisdiction within the
locality of the municipality within one week after the complainant has received
the municipality's determination.
(C) If a protest is mailed, the complaining
party bears the risk of nondelivery within the required time period. All
documents transmitted in accordance with this section shall be mailed by
certified mail (return receipt requested) or otherwise delivered in a manner
which will objectively establish the date of receipt. Initiation of protest
actions under (4) or (5) of this section may be made by brief telegraphic
notice accompanied by prompt mailing or other delivery of a more detailed
statement of the basis for the protest. Telephone protests will not be
considered.
(3) Other
initial requirements.
(A) The initial protest
document must briefly state the basis for the protest and should:
(i) Refer to the specific portions of these
regulations which allegedly prohibit the procurement action;
(ii) Specifically request a determination
pursuant to this section;
(iii)
Identify the specific procurement document(s) or portion(s) of them in issue;
and
(iv) Include the name,
telephone number, and address of the person representing the protesting
party.
(B) The party
filing the protest must concurrently transmit a copy of the initial protest
document and any attached documentation to all other parties with a direct
financial interest which may be adversely affected by the determination of the
protest (all bidders or proposers who appear to have a substantial and
reasonable prospect of receiving an award if the protest is denied or
sustained) and to the Commissioner.
(4) Municipality determination.
(A) The municipality is responsible for the
initial resolution of protests based upon alleged violations of the procurement
requirements.
(B) When the
municipality receives a timely written protest, it must defer the protested
procurement action in accordance with (8) of this section and:
(i) Afford the complaining party and
interested parties an opportunity to present arguments in support of their
views in writing or at a conference or other suitable meeting (such as a city
council meeting);
(ii) Inform the
complainant and other interested parties of the procedures which the
municipality will observe for resolution of the protest;
(iii) Obtain an appropriate extension of the
period for acceptance of the bid and bid bond(s) of each interested party,
where applicable (failure to agree to a suitable extension of such bid and bid
bond(s) by the party which initiated the protest shall be cause for summary
dismissal of the protest by the municipality or the Commissioner);
and
(iv) Promptly deliver (by
certified mail, return receipt requested, or by personal delivery) its written
determination of the protest to the complaining party and to each other
participating party.
(C)
The municipality's determination must be accompanied by a legal opinion
addressing issues arising under State, or local law, if any and, when
construction is involved, by an engineering report, if appropriate.
(D) The municipality should decide the
protest as promptly as possible-generally within 3 weeks after receipt of a
protest, unless extenuating circumstances require a longer period of time for
proper resolution of the protest.
(5) Procedures.
(A) Where resolution of an issue properly
raised with respect to a procurement requirement necessitates prior or
collateral resolution of a legal issue arising under State or local law, and
such law is not clearly established in published legal decisions of the State
or other relevant jurisdiction, the municipality may rely upon:
(i) An opinion of the municipality's legal
counsel adequately addressing the issue; or
(ii) The established or consistent practice
of the municipality, to the extent appropriate; or
(iii) The law of other local jurisdictions as
established in published legal decisions; or
(iv) If none of the foregoing adequately
resolve the issue, published decisions of the Comptroller General of the United
States (U.S. General Accounting Office) or of the Federal or State courts
addressing Federal or State requirements comparable to procurement requirements
of this section.
(B) A
party who submits a document subsequent to initiation of a protest proceeding
must simultaneously furnish each of the other parties with a copy of such
document.
(C) The procedures
established herein are not intended to preclude informal resolution or
voluntary withdrawal of protests. A complainant may withdraw its appeal at any
time, and the protest proceedings shall thereupon be terminated.
(D) A protest may be dismissed for failure to
comply with procedural requirements set forth in this section.
(6) Burden of proof.
(A) In protest proceedings, if the
municipality proposes to award a formally advertised, competitively bid, fixed
price contract to a party who has submitted the apparent lowest price, the
party initiating the protest will bear the burden of proof.
(B) In protest proceedings:
(i) If the municipality proposes to award a
formally advertised, competitively bid, fixed price contract to a bidder other
than the bidder which submitted the apparent lowest price, the municipality
will bear the burden of proving that its determination concerning
responsiveness is in accordance with these regulations; and
(ii) If the basis for the municipality's
determination is a finding of nonresponsibility, the municipality must
establish and substantiate the basis for its determination and must adequately
establish that such determination has been made in good faith.
(7) Deferral of
procurement action. Upon receipt of a protest, the municipality must defer the
protested procurement action (for example, defer the issuance of solicitations,
contract award, or issuance of notice to proceed under a contract) until ten
days after delivery of its determination to the participating parties. The
municipality may receive or open bids at its own risk, if it considers this to
be in its best interest. When the Commissioner has received a written protest,
he must notify the municipality promptly to defer its protested procurement
action until notified of the formal or informal resolution of the
protest.
(8) Enforcement.
Noncompliance with the procurement provisions by the municipality shall be
cause for enforcement action in accordance with one or more of the provisions
of Section
22a-439-4(f)
(23).
(9) Limitation. A protest may
not be filed with respect to the following:
(A) Issues not arising under the procurement
provisions; or
(B) Issues relating
to the selection of a consulting engineer, provided that a protest may be filed
only with respect to the mandatory procedural requirements of Section
22a-439-4(g);
or
(C) Issues primarily determined
by local law or ordinance and as to which the Commissioner, upon review,
determines that there is no contravening state requirement and that the
municipality's action has a rational basis; or
(D) Provisions of State regulations
applicable to direct State contracts unless such provisions are explicitly
referred to or incorporated in these regulations; or
(E) Basic project design determinations;
or
(F) Award of subcontracts or
issuance of purchase orders under formally advertised, competitively bid, lump
sum construction contracts. However, protest may be made to alleged violations
of the following:
(i) Specification
requirements of Section
22a-439-4(f)
(12); or
(ii) Provisions applicable
to the procurement procedures, negotiation or award of subcontracts or issuance
of purchase orders under Section
22a-439-4(j).
(n)
Grant Conditions.
Grants for pollution abatement facilities shall be subject to
the following conditions:
(1)
Municipality Responsibilities.
(A) Review or
approval of engineering reports, plans and specifications or other documents by
the Commissioner is for administrative purposes only and does not relieve the
municipality of its responsibility to properly plan, design, build and
effectively operate and maintain the pollution abatement facilities described
in the grant agreement as required under law, regulations, permits, and good
management practices. The Commissioner is not responsible for increased
building costs resulting from defects in the plans, design drawings and
specifications or other subagreement documents.
(B) By its acceptance of the grant, the
municipality agrees to complete the pollution abatement facilities in
accordance with the engineering report, plans and specifications and related
grant documents approved by the Commissioner and to maintain and operate the
pollution abatement facilities to meet the enforceable requirements of the
permit issued pursuant to Section
22a-430
of the Connecticut General Statutes for the design life of the pollution
abatement facilities. The Commissioner may seek specific enforcement or
recovery of funds from the municipality, or take other appropriate action if he
determines that the municipality has failed to make good faith efforts to meet
its obligations under the grant.
(C) The municipality agrees to pay the
non-State costs of the pollution abatement facilities construction associated
with the project and commits itself to complete the construction of the
operable pollution abatement facilities, and the complete pollution abatement
facilities of which the project is a part.
(2) Nondiscrimination.
Contracts involving construction work of $5,000 or more are
subject to nondiscrimination requirements of the Governor's Executive Order No.
Three and to the Guidelines and Rules issued by the State Labor Commissioner to
implement Executive Order No. Three.
(3) State Wage Rates.
Contracts involving construction work are subject to the
appropriate State wage rates issued by the State Labor Commissioner.
(4) Access.
The municipality must insure that the Commissioner and his duly
authorized agents will have access to the project work whenever it is in
preparation or progress. The municipality must provide proper facilities for
access and inspection. The municipality must allow any authorized agent of the
State to have access to any books, documents, plans, reports, papers, and other
records of the contractor which are pertinent to the project for the purpose of
making audit, examination, excerpts, copies and transcriptions. The
municipality must insure that a party to a subagreement will provide access to
the project work, sites, documents, and records.
(5) Project Changes.
(A) Minor changes in the project work that
are consistent with the objectives of the project and within the scope of the
grant agreement do not require the execution of a formal grant amendment before
the municipality's implementation of the change. However, if such changes
increase the costs of the project, the amount of the funding provided by the
grant agreement may only be increased by a formal grant amendment.
(B) The municipality must receive from the
Commissioner a formal grant amendment before implementing changes which:
(i) Alter the project performance
standards.
(ii) Alter the type of
treatment facilities provided by the project.
(iii) Delay or accelerate the project
schedule.
(iv) Substantially alter
the engineering report, design drawings and specifications, or the location,
size, capacity, or quality of any major part of the project.
(6) Operation and
Maintenance.
(A) The municipality must make
provisions satisfactory to the Commissioner for assuring economical and
effective operation and maintenance of the pollution abatement facilities in
accordance with a plan of operation approved by the Commissioner.
(B) The Commissioner shall not pay more than
50 percent of the State share of any project unless the municipality has an
approved final plan of operation, and shall not pay more than 90 percent of the
State share of any project unless the municipality has an approved operation
and maintenance manual.
(7) Adoption of Sewer Use Ordinance and User
Charge System.
The municipality shall adopt the sewer use ordinance and
implement the user charge system developed under Section
22a-439-3(e)
and (f) and approved by the Commissioner before the pollution abatement
facilities are placed in operation. Further, the municipality shall implement
the user charge system and sewer use ordinance for the useful life of the
pollution abatement facilities.
(8) Value Engineering.
The municipality must comply with the applicable requirements
of Section
22a-439-3(d)
for value engineering.
(9)
Project Initiation and Completion.
(A) The
municipality shall expeditiously initiate and complete the project in
accordance with the project schedule contained in the grant agreement. Failure
to promptly initiate and complete a project may result in annulment or
termination of the grant.
(B) The
municipality shall initiate procurement action for building the project
promptly after award of a construction grant. The Commissioner may annul or
terminate the grant if the municipality has not awarded the subagreements and
issued a notice to proceed, where one is required, for building all significant
elements of the project within twelve (12) months of the construction grant
award. Failure to promptly award all subagreement(s) for building the project
will result in a limitation on allowable costs.
(10) Municipality Responsibility for Project
Performance.
(A) The municipality shall
select the engineer or engineering firm principally responsible for either
supervising construction or providing architectural and engineering services
during construction as the prime engineer to provide the following services
during the first year following the initiation of operation:
(i) Direct the operation of the project and
revise the operation and maintenance manual for the project as necessary to
accommodate actual operation experience.
(ii) Train or provide for training of
operating personnel including the preparation of curricula and training
material for operating personnel.
(iii) Advise the municipality whether the
project is capable of meeting the project performance standards.
(B) On the date one year after the
initiation of operation of the project the municipality shall certify to the
Commissioner whether the project is capable of meeting the project performance
standards. If the project does not meet the project performance standards, the
municipality shall submit the following:
(i)
A corrective action report which includes an analysis of the cause of the
project's inability to meet the performance standards including
infiltration/inflow reduction, and estimates of the nature, scope and cost of
the corrective action necessary to bring the project into compliance. Such
corrective action report shall be prepared at other than State
expense.
(ii) The schedule for
undertaking in a timely manner the corrective action necessary to bring the
project into compliance.
(iii) The
scheduled date for certifying to the Commissioner that the project is capable
of meeting the project performance standards.
(C) Corrective action necessary to bring a
project into compliance with the project performance standards shall be
undertaken by the municipality at other than State expense.
(D) Nothing in this section shall be
construed to prohibit a municipality from requiring more assurances,
guarantees, or indemnity or other contractual requirements from any party
performing project work.
(11) Final Inspection.
The municipality shall notify the Commissioner of the
completion of project construction. The Commissioner shall cause final
inspection to be made within 60 days of the receipt of the notice. When final
inspection is completed and the Commissioner determines that the pollution
abatement facilities have been satisfactorily constructed in accordance with
the grant agreement, the municipality may make a request for final
payment.
(o)
Grant Amendments.
(1) Grant
agreements may be amended for project changes in accordance with this section.
No grant agreement may be amended to increase the amount of a grant unless the
grant funds are available for obligation. A formal grant amendment shall be
effected only by a written amendment to the grant agreement.
(2) For grants awarded under these
regulations, an amendment to increase the grant amount may be made for:
(A) Change orders, claims and arbitration
settlements.
(B) Revised bid
documents.
(C) Project changes
required by the Commissioner.
(D)
Increased costs on architectural/engineering agreements.
(p)
Enforcement.
If the Commissioner determines that the municipality has failed
to comply with any provision of these regulations, he may impose any of the
following:
(1) The grant may be
terminated or annulled under Section
22a-439-4(s)
(3) and (4).
(2) Project costs
directly related to the noncompliance may be disallowed.
(3) Payment otherwise due to the municipality
of up to 10 percent may be withheld.
(4) Project work may be suspended.
(5) A noncomplying municipality may be found
nonresponsible or ineligible for future State assistance.
(6) An injunction may be entered or other
equitable relief afforded by a court or appropriate jurisdiction.
(7) Such other administrative or judicial
action may be instituted if it is legally available and appropriate.
(q)
Grant Payments.
The municipality shall be paid the State share of allowable
project costs incurred within the scope of an approved project and which are
currently due and payable from the municipality (i.e. not including withheld or
deferred amounts), up to the grant amount set forth in the grant agreement and
any amendments thereto. Payments for engineering services shall be made in
accordance with Section
22a-439-4(d)
and payments for construction contracts shall be made in accordance with
Section
22a-439-4(k)
and (l). All allowable costs incurred before initiation of
construction of the project must be claimed in the application for grant
assistance for that project before the award of the assistance or no subsequent
payment will be made for the costs.
(1) Initial request for payment. Upon award
of grant assistance, the municipality may request payment for the unpaid State
share of allowable project costs incurred before grant award. Payment for such
costs shall be made in accordance with the negotiated payment schedule included
in the grant agreement.
(2) Interim
requests for payment. The municipality may submit requests for payments for
allowable costs in accordance with the negotiated payment schedule included in
the grant agreement. Upon receipt of a request for payment, the Commissioner
shall cause to be disbursed from obligated funds such amounts as are necessary
so that the total amount of State payments to the municipality for the project
is equal to the State share of the allowable project costs incurred to date as
certified by the municipality in its most recent request for payment.
Generally, payments will be made within 20 days after receipt of a request for
payment.
(3) Adjustment. At any
time before final payment under the grant, the Commissioner may cause any
request(s) for payment to be reviewed or audited and make appropriate
adjustment.
(4) Refunds, rebates,
credits, etc. The State share of any refunds, rebates, credits or other amounts
(including any interest) that accrue to or are received by the municipality for
the project, and that are properly allocable to costs for which the
municipality has been paid under a grant, must be credited to the current State
allotment. Reasonable expenses incurred by the municipality for the purpose of
securing such refunds, rebates, credits, or other amounts shall be allowable
under the grant when approved by the Commissioner.
(5) Final payment. After the completion of
final inspection, approval of the request for payment which the municipality
designates as the "final payment request," and the municipality is deemed in
compliance with all applicable requirements of the grant agreement, the
Commissioner shall pay to the municipality any balance of the share of
allowable project costs which has not already been paid. The municipality must
submit the final payment request within six (6) months after final
inspection.
(6) Assignment and
release. By its acceptance of final payment, the municipality agrees to assign
to the State the share of refunds, rebates, or credits or other amounts,
including any interest, properly allocable to costs for which the municipality
has been paid by the State under the grant. The municipality thereby also
releases and discharges the State, its officers, agents and employees from all
liabilities, obligations, and claims arising out of the project work or under
the grant, subject only to exceptions previously specified in writing between
the Commissioner and the municipality.
(r)
Administrative Grant
Changes.
(1) Transfer of grants;
Change of name agreements.
Transfer of grant and change of name agreements require the
prior written approval of the Commissioner. The municipality may not approve
any transfer of a grant without the concurrence of the Commissioner. The
Commissioner shall prepare the necessary grant transfer documents upon receipt
of appropriate information and documents submitted by the municipality.
(2) Suspension of grants (stop
work orders).
Work on a project or on a portion or phase of a project for
which a grant has been awarded may be ordered stopped by the
Commissioner.
(A) Use of stop-work
orders. Work stoppage may be required for good cause such as default by the
municipality, failure to comply with the terms and conditions of the grant,
realignment of programs, lack of adequate funding, or advancements in the state
of the art. Inasmuch as stop-work orders may result in increased costs to the
State by reason of standby costs, such orders will be issued only after a
review by the Commissioner. Generally, use of a stop-work order will be limited
to those situations where it is advisable to suspend work on the project or a
portion or phase of the project for important program or agency considerations
and a supplemental agreement providing for such suspension is not feasible.
Although a stop-work order may be used pending a decision to terminate by
mutual agreement or for other cause, it will not be used in lieu of the
issuance of a termination notice after a decision to terminate has been
made.
(B) Contents of stop-work
orders should be discussed with the municipality and should be appropriately
modified in light of such discussions. Stop-work orders should include a clear
description of the work to be suspended, instructions to the issuance of
further orders by the municipality for materials or services guidance as to
action to be taken on subagreements, and other suggestions to the municipality
for minimizing costs.
(C) Issuance
of stop-work order. After appropriate review of the proposed action has
occurred, the Commissioner may, by written order to the municipality, require
the grantee to stop all or any part of the project work for a period of not
more than forty-five (45) days after the order is delivered to the
municipality, and for any further period to which the parties may agree. The
Commissioner shall prepare the necessary documents for the stop-work order. Any
such order shall be specifically identified as a stop-work order issued
pursuant to this section.
(D)
Effect of stop-work order.
(i) Upon receipt
of a stop-work order, the municipality shall forthwith comply with its terms
and take all reasonable steps to minimize the incurrence of costs allocable to
the work covered by the order during the period of work stoppage. Within the
suspension period or within any extension of that period which the parties
shall have agreed, the State shall either cancel the stop-work order, in full
or in part, terminate the work covered by such order as provided in Section
22a-439-4(s)
(3), or authorize resumption of work.
(ii) If a stop-work order is canceled or the
period of the order or any extension thereof expires, the municipality shall
promptly resume the previously suspended work. An equitable adjustment shall be
made in the grant period, the project period, or grant amount, or all of these,
and the grant instrument shall be amended accordingly if the stop-work order
results in an increase in the time required for, or an increase in the
municipality's cost properly allocable to, the performance of any part of the
project and the municipality asserts a written claim for such adjustment within
sixty (60) days after the end of the period of work stoppage.
(iii) If a stop-work order is not canceled
and the grant-related project work covered by such order is within the scope of
a subsequently-issued termination order, the reasonable cost resulting from the
stop-work order shall be allowed in arriving at the termination
settlement.
(iv) Costs incurred by
the municipality or its contractors, subcontractors, or representatives, after
a stop-work order is delivered, or within any extension of the stop-work period
to which the parties shall have agreed, with respect to the project work
suspended by such order or agreement which are not authorized by this section
or specifically authorized in writing by the Commissioner, shall not be
allowable costs.
(3) Termination of Grants
A grant may be terminated in whole or in part by the
Commissioner in circumstances where good cause can be demonstrated.
(A) Termination agreement. The parties may
enter into an agreement to terminate the grant at any time pursuant to terms
which are consistent with these regulations. The agreement shall establish the
effective date of termination of the project and grant, the basis for
settlement of grant termination costs, and the amount and date of payment of
any sums due either party. The Commissioner will prepare the necessary grant
termination documents.
(B) Project
termination by municipality. A municipality may not unilaterally terminate the
project work for which a grant has been awarded, except for good cause. The
municipality must promptly give written notice to the Commissioner of any
complete or partial termination of the project work by the municipality. If the
Commissioner determines that there is good cause for the termination of all or
any portion of a project for which the grant has been awarded, he may enter
into a termination agreement or unilaterally terminate the grant, effective
with the date of cessation of the project work by the municipality. If the
Commissioner determines that a municipality has ceased work on the project
without good cause, he may unilaterally terminate or annul the grant.
(C) Grant termination by Commissioner.
(i) Notice of intent to terminate. The
Commissioner shall give not less than ten (10) days written notice to the
municipality of intent to terminate a grant in whole or in part.
(ii) Termination action. The municipality
must be afforded an opportunity for consultation prior to any termination.
After the Commissioner has been informed of any expressed views of the
municipality and concurs in the proposed termination, the Commissioner may, in
writing, terminate the grant in whole or in part.
(iii) Basis for termination. A grant may be
terminated by the Commissioner for good cause subject to negotiation and
payment of appropriate termination settlement costs.
(D) Effect of termination. Upon termination,
the municipality must refund or credit to the State that portion of the grant
funds paid or owed to the municipality and allocable to the terminated project
work, except such portion thereof as may be required to meet commitments which
had become firm prior to the effective date of termination and are otherwise
allowable. The municipality shall not make any new commitment without State
approval. The municipality shall reduce the amount of outstanding commitments
insofar as possible and report to the Commissioner the uncommitted balance of
funds awarded under the grant.
(4) Annulment of Grant.
The Commissioner may annul the grant if he determines that
there has been no substantial performance of the project work without good
cause, there is convincing evidence the grant was obtained by fraud, or there
is convincing evidence of gross abuse or corrupt practices in the
administration of the project. In addition to such remedies as may be available
to the State under State, or local law, all grant funds previously paid to the
municipality shall be returned or credited to the State and no further payments
shall be made to the municipality.
(5) Deviations.
The Commissioner is authorized to approve deviations from
requirements of these regulations when he determines that such deviations are
essential to effect necessary grant actions or where special circumstances make
such deviations in the best interest of the State.
(A) Request for deviation. A request for a
deviation shall be submitted in writing to the Commissioner as far in advance
as the exigencies of the situation will permit. Each request for a deviation
shall contain as a minimum:
(i) The name of
the municipality, the grant identification number, and the dollar value, if
appropriate.
(ii) Identification of
the section of these regulations from which a deviation is sought.
(iii) An adequate description of the
deviation and the circumstances in which it will be used, including all
appropriate justification for the deviation request.
(iv) A statement as to whether the same or a
similar deviation has been required previously and, if so, circumstances of the
previous request.
(B)
Approval of deviation. Deviations may be approved only by the Commissioner. A
copy of each such written approval shall be retained in the official State
grant file.