(a)
Allowable
Grant Costs. Those costs associated with the planning, design and
construction of pollution abatement facilities eligible for state grant
assistance are as follows:
(1) costs of
salaries, benefits, and expendable materials the municipality incurs for the
project, except as provided for in subdivision (b) (8) of this
section;
(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, section
22a-1a
to
22a-1h
of the General Statutes, 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 preliminary and final 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 this section;
(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; and
(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 cost
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 which 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 the 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; and
(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 the event of a pump station failure or pipeline
breaks; and
(C) sludge or septic
tank trucks, 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 or whose
procurement involves an extended "lead-time";
(B) identified as critical by the equipment
supplier(s); or
(C) critical but
not included in the inventory provided by the equipment supplier(s);
(26) allowable costs for
infiltration/inflow which include:
(A) the
cost of sewer system and pollution abatement facility capacity adequate to
transport and treat nonexcessive infiltration/inflow; and
(B) the costs of sewer system rehabilitation
necessary to eliminate excessive infiltration/inflow as determined in a sewer
system evaluation survey under section
22a-482-3(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 subdivision (p) (10) of this section during the first
year following initiation of operation of the pollution abatement facility;
and
(30) the costs of municipal
employees attending training workshops or 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 Grant 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 which include:
(A) modification to
physical structure of homes or commercial establishments;
(B) conveyance pipes from the house to the
treatment unit located on user's property; and
(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 subdivision (h) (13)
of this section;
(9) the costs of
acquisition (including associated level, 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 subsection (c) of this section;
(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 this section;
(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 of defending
or negotiating the settlement of a claim by or against the municipality;
and
(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 Grant 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; and
(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 General Statutes; and
(C)
the cost of restoring streets and rights-of-way to their original condition.
The need for such restoration shall 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 of the 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;
and
(C) the primary purpose of the
acquisition is not the reduction, elimination, or redistribution of public or
private debt.
(d)
Allowable Loan Project
Costs:
(1) all costs allowable for
grant participation under subsections (a) and (c) of this section;
(2) all costs necessary to complete the
project including land, legal, rights-of-way, interest and claim
settlements;
(3) all costs
associated with incremental capacity for growth; and
(4) those costs a reasonable business person
would incur when operating his or her own business necessary to construct the
project.
(e)
Unallowable Loan Project Costs:
(1) costs associated with improvements to
municipal or private property not related to pollution control;
(2) costs associated with the liability of
other contractors and subcontractors; and
(3) costs associated with waste, fraud or
abuse.
(f)
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 state financial assistance 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 or her to best serve the
public interest. Factors which the Commissioner may consider in determining
whether to provide assistance include:
(i)
available department 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; and
(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
provision of technical or legal assistance under this section in no way
releases the municipality from its obligations under sections
22a-482-1
to 22a-482-4, inclusive, or affects the Commissioner's right to take remedial
action against a municipality that fails to carry out those
obligations.
(2)
Subagreement Provisions.
(A) Each subagreement
shall 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; and
(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. Municipalities shall include subparagraphs (A) to (L),
inclusive, of this subdivision 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 sections
22a-482-1
to 22a-482-4 of the Regulations of Connecticut State Agencies in effect on the
date of the grant award for the project.
(C) Changes to Subagreement.
(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
additional compensation will be charged by the engineer shall be furnished
without the written authorization of the municipality.
(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.
(D)
Termination of Subagreement.
(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 its
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) 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.
(iv) Upon receipt of a
termination action pursuant to subparagraphs (D) (i) or (D) (ii) of this
subdivision, 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.
(v) Upon termination under
subparagraphs (D) (i) or (D) (ii) of this subdivision, the municipality may
take over the work and may award another party a subagreement to complete the
work under this subagreement.
(vi)
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 subparagraph (D)
(iii) of this subdivision.
(E) Remedies. Except as may be otherwise
provided in this subagreement, all claims, counter-claims, 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 municipality and Commissioner or any of his or her 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 subparagraphs (G) (i) to (G) (v) of this subdivision,
inclusive, in all his contracts and all lower tier subcontracts directly
related to project performance that are in excess of $10,000, and to make
subparagraphs (G) (i) to (G) (v) of this subdivision, inclusive, applicable to
all change orders directly related to project performance.
(iii) Audits conducted under this
subparagraph shall be in accordance with generally accepted auditing standards
and established procedures and guidelines of the reviewing or audit department
and shall meet the requirements of section
7-396a
of the General Statutes.
(iv) The
engineer agrees to the disclosure of all information and reports resulting from
access to records under subparagraphs (G) (i) and (G) (ii) of this subdivision
to any of the parties referred to in subparagraph (G) (i) of this subdivision,
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 subparagraphs (G) (i) and (G)
(ii) of this subdivision during performance on grant funded work under this
agreement and until three (3) years from the date of final grant payment for
the project. In addition, those records which relate to any dispute appeal
arising 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 three
(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 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 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 subparagraph (E) of this
subdivision.
(ii) In the event this
subagreement is terminated as provided in subparagraph (I) (i) of this
subdivision 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, may pursue 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
subparagraph 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 subparagraph (K) (ii) of this subdivision 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
subparagraph (K) (i) or (K) (ii) of this subdivision 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
financed by state funds), technical reports, operating manuals, and other work
submitted with an engineering report, with a design or for construction with
financing assistance, 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 subparagraph (L) (ii) of this subdivision 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;
and
(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.
(g)
Required
Provisions for Construction Contracts. Municipalities must include, when
appropriate, subdivisions (1) to (14), inclusive, of this subsection, or their
equivalent, in each subagreement and may substitute other terms for "grantee"
and "contractor" in their subagreements.
(1)
Supersession. The municipality and the contractor agree that the following
general provisions, or their equivalent, apply to 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 subject to sections
22a-482-1
to 22a-482-4, inclusive, of the Regulations of Connecticut State
Agencies.
(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 municipality-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 subdivision (3) of this subsection, no order, statement, or
conduct of the municipality shall be treated as a change under subdivision (3)
of this subsection or entitle the contractor to an equitable
adjustment.
(D) If any change under
subdivision (3) of this subsection 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 subparagraph
(B) of this subdivision shall be allowed for any costs incurred more than 20
days before the contractor gives written notice as required in subparagraph (B)
of this subdivision. 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 shall, within thirty
(30) days after receipt of a written change order under subparagraph (A) of
this subdivision, or the furnishing of a written notice under subparagraph (B)
of this subdivision, 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 subparagraph (B) of this subdivision.
(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 municipality;
(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 or adjustment under this clause shall be
asserted within thirty (30) days from the date of receipt by the contractor of
the notification of change. lf 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 is made obsolete or excessive 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
subdivision 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 physical 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
subdivision shall be allowed unless the contractor has given notice required in
subparagraph (A) of this subdivision. 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 subdivision 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 subdivision shall be allowed for any costs incurred more than twenty (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 other 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 subparagraphs (A) or (B) of this subdivision, the contractor 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 contractor in
performing this contract whether completed or in process.
(E) Upon termination under subparagraphs (A)
or (B) of this subdivision 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 subparagraph (C) of this
subdivision.
(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 subdivision 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 subdivision 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. Failure to agree on a reduction shall be subject to subdivision (8)
of this subsection.
NOTE- Since the contract is subject to reduction under this
subdivision 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 subcontractors.
(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-482-4(i) (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 or her 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
subparagraphs (A) to (F), inclusive, of this subdivision 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 subparagraphs (A) to (F), inclusive, of this subdivision in all his
subcontracts in excess of $10,000 and to subparagraphs (A) through (F),
inclusive, of this subdivision applicable to all change orders directly related
to project performance.
(C) Audits
conducted under this subdivision shall be in accordance with generally accepted
auditing standards and established procedures and guidelines of the reviewing
or audit departments and shall meet the requirements of section
7-396a
of the General Statutes.
(D) The
contractor agrees to disclose all information and reports resulting from access
to records under subparagraphs (A) and (B) of this subdivision to any of the
parties referred to in subparagraph (A) of this subdivision.
(E) Records under subparagraphs (A) and (B)
of this subdivision 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 provision (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 subdivision (8) of this subsection.
(B) In the event this contract is terminated,
as provided in subparagraph (A) of this subdivision, the municipality 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, may pursue 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 subdivision are in addition to the
contractor's other express or implied 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.
(h)
Procurement
Requirements-General.
(1)
Applicability. This subsection 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,
22a-482 -4.
(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 shall 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; and
(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 a Connecticut state
agency.
(6) Violations.
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; and
(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; and
(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 shall 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
municipality 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 subparagraph.
(9) Use of Small, Minority, and Women's
Businesses. The municipality shall take affirmative steps to assure that small,
minority, and women's businesses are used to the maximum extent practicable.
The Commissioner may impose goals as conditions of financial
assistance.
(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) the 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; and
(v) the basis for award cost or price,
including a copy of the cost or price analysis made and documentation of
negotiations; and
(B)
The municipality shall 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 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
two brand names or trade names of comparable quality or utility are listed and
are followed by the words "or equal." If brand or trade names are specified,
the municipality shall be prepared to identify to the Commissioner, or in any
protest action, the salient requirements (relating to the minimum needs of the
project) which shall 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 shall 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, in advance, 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 shall 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 standard 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; or
(ii) an organization which may receive or has
been awarded a subagreement employs, or is about to employ, any person under
subparagraph (B) (i) of this subdivision.
(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 shall 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. (Municipality's 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 shall pay these costs 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 an award may be based on initial
offers alone, the municipality shall 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 shall have equal opportunities to negotiate or revise their proposals.
During negotiations, the municipality shall not disclose the identity of
competing offerors or any information from competing proposals.
(B) The municipality shall 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
shall promptly notify unsuccessful offerors that their proposals were
rejected.
(D) The municipality
shall 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 Subagreements 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) of this subsection.
(B) The municipality may use responses from
requests for statements of qualifications to determine the most technically
qualified architects or engineers.
(C) After selecting and ranking the most
qualified architects or engineers, the municipality shall 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 shall 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 municipality 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; or
(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 financial assistance for
the planning and/or design services and selected the architect or engineer in
accordance with these procurement regulations.
(B) However, if the municipality uses the
procedures in subparagraph (A) of this subdivision to retain an architect or
engineer, any construction subagreements between the architect or engineer and
the municipality shall meet the procurement provisions of subdivision (i) (5)
of this section.
(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
subparagraph (B) of this subdivision 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); or
(ii) the aggregate amount involved does not
exceed $10,000; or
(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
shall document its file with a justification of the need for noncompetitive
procurement, and provide such documentation to the Commissioner on request;
or
(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; or
(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;
or
(vi) the procurement is for
materials or services where the price is established by law; or
(vii) the procurement is for technical items
or equipment requiring standardization and interchangeability of parts with
existing equipment; or
(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 the provisions of this subsection, he or she may impose any of the following
sanctions:
(A) the grant may be terminated or
annulled under subsection (t) of this section; or
(B) project costs directly related to the
noncompliance may be disallowed; or
(C) payment otherwise due to the municipality
of up to 10 percent may be withheld; or
(D) project work may be suspended under
subdivision (g) (6) of this section; or
(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 awards under state grants; or
(F) an injunction may be entered or other
equitable relief afforded by a court of appropriate jurisdiction; or
(G) such other administrative or judicial
action may be instituted if it is legally available and appropriate.
(24) Contract Enforcement and
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 subdivision (f) (1) of this section.
(i) 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 shall 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; and
(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 the planning
agreement 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; and
(ii) the municipality
desires the same engineer to provide architectural or engineering services for
the subsequent steps or for subsequent segments of design work in one project,
if a single pollution abatement facility 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 facility to be built under one
grant then 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; and
(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 shall 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
shall be provided requests for proposals.
(ii) Requests for professional services
proposals shall be in writing and must contain the information necessary to
enable a prospective offeror to prepare a proposal properly. The request for
proposals shall include a solicitation statement and shall inform offerors of
the evaluation criteria.
(iii)
Submission deadline. Requests for proposals shall 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 shall be uniformly evaluated.
The municipality shall also evaluate the candidates' 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 shall
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 that 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 subdivision.
(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, at 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; and
(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 the following 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; and
(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) At 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 Commissioner 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 shall 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.
(A) 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 or
professional proposals is expected to be funded in part by the State of
Connecticut, Department of Environmental Protection. This procurement will be
subject to requirements contained in subsections (h), (i) and (o) of this
section. The State of Connecticut will not be a party to this request for
qualifications or professional proposals or any resulting contract.
(B) Content of subagreement. Each
subagreement shall 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. 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. 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.
(j)
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 negotitations are permitted in
accordance with subdivision (18) of subsection (h) of this section. 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 dollars or more, the municipality
shall 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, shall 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-serve 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, 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 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 subsections (h), (j) and (o) of this section;
(vi) a copy of subsections (h),
(j) and (o) of this section; and
(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 the
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.
(k)
Negotiation
of Contract Amendments (Change Orders).
(1) The municipality is responsible for the
negotiation of construction contract change orders. This function may be
performed by the municipality directly or, if authorized, by its engineer.
During negotiations with the contractor the municipality 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; and
(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 subdivisions (3) and (4) of this subsection 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 subparagraphs (A) to (C) of this subdivision, 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) Lump Sums shall 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
subparagraphs (A) to (E) of this subdivision 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 subsections (a), (b), (c), (d) and (e) of this section. The
contractor shall 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; and
(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
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 subdivision (4) of this subsection. For
change orders which include both additive and deductive items:
(A) if any single item (additive or
deductive) exceeds $100,000 the requirements of subdivision (4) of this
subsection 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 subdivision (4)
of this subsection shall be applicable; and
(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 subdivision (4) of this subsection
shall be applicable.
(l)
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 subsection (h) or (j) of this section,
except those specifically stated in this section. In addition, the bid protest
procedures in subsection (o) of this section are not available to parties
executing subcontracts with prime contractors, except as specifically provided
in subsection (o) of this 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 shall comply with any municipality
procurement system, state, small, minority and women's business policy (section
22a-482-4(h) (9)), negotiation of contract amendments (section 22a-482-4(k) ),
and subdivisions (8) and (9) of section 22a-482-4(g).
(m)
Progress Payments to
Contractors.
(1) Except as state law
otherwise provides, municipalities shall 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 this program. The Clean Water Fund shall only
be obligated to pay the municipality amounts that the municipality is actually
going to pay contractors.
(2)
Conditions of Progress Payments. For purposes of this subsection, progress
payments are defined as follows:
(A) payments
for work in place; or
(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; or
(C) payments
for undelivered, specifically manufactured items or equipment (excluding
off-the-shelf or catalog items) as work on them progresses. Such payments shall
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; and
(iii) a
fabrication period of more than 6 months is anticipated.
(3) Protection of Progress
Payments Made for Specifically Manufactured Equipment. The municipality shall
assure protection of the state's interest in progress payments made for items
or equipment referred to in subparagraph (2) (C) of this subsection. The
protection shall be acceptable to the municipality and shall 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 subparagraphs
(A) (i) or (A) (ii) of this subdivision 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 shall 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 subsection, 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 shall be included in each
contract and subcontract.
(7)
Implementation. The foregoing progress payments policy should be implemented in
invitations for bids for projects funded by the Clean Water Fund. If provision
for progress payments is made after contract award, it shall be for
consideration that the municipality deems adequate.
(n)
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; and
(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 requirements set out in subdivision
(1) of this subsection shall be implemented with respect to all construction
projects. Appropriate provision to assure compliance with these requirements
shall 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
funding agreement or in an amendment which is issued by the
Commissioner.
(3) A municipality
which delays disbursement to contractors of funds will be required to credit to
the Clean Water Fund all interest earned on those funds and will be responsible
for any and all tax law violations which occur as a result of their
actions.
(o)
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 subparagraph (2) (A) of this subsection.
The municipality is responsible for resolution of the protest before taking the
protested action, in accordance with subdivision (4) of this subsection, except
as otherwise provided by subdivision (9) of this subsection or subparagraph (j)
(2) (H) (v).
(2) Time Limitations.
(A) A protest under subdivision (4) of this
subsection 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 subdivision (4) of this subsection shall 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 subdivision (h) (12) of this section (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 of subdivision (h) (12) of
this section first arises subsequent to the receipt of bids or proposals, the
municipality shall make a determination on 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 authorized under
this subsection shall 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 subdivisions (4) or (5) of this subsection 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 shall briefly state the basis for the protest and should:
(i) refer to the specific portions of
sections
22a-482-1
to 22a-482-4 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 shall 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 subdivision (7) of this subsection; 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 shall 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
shall 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
shall bear the burden of proving that its determination concerning
responsiveness is in accordance with Section
22a-482-1
to
22a-482-4;
and
(ii) if the basis for the
municipality's determination is a finding of nonresponsibility, the
municipality shall establish and substantiate the basis for its determination
and shall adequately establish that such determination has been made in good
faith.
(7)
Deferral of Procurement Action. Upon receipt of a protest, the municipality
shall 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 or she shall 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 subdivision (h) (23)
of this section.
(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 subsection (i) of
this section; 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 section 22a-482; 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, protests may be made to alleged violations
of the following:
(i) specification
requirements of subdivision (h) (12) of this section; or
(ii) provisions applicable to the procurement
procedures, negotiation or award of subcontracts or issuance of purchase orders
under subsection (1) of this section.
(p)
Funding Assistance
Conditions. Financing 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 funding assistance 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 financing, the
municipality agrees to complete the pollution abatement facilities in
accordance with the engineering report, plans and specifications and related
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
or she determines that the municipality has failed to make good faith efforts
to meet its obligations under the grant/loan agreement.
(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. All contracts are
subject to the Governor's Executive Order No. Three and to the guidelines and
rules issued by the State Labor Commission to implement Executive Order No.
Three.
(3) Wage Rates. Contracts
involving construction work are subject to the appropriate state wage rates
issued by the State Labor Commissioner and federal wage rates issued by the
United States Department of Labor.
(4) Access. The municipality shall insure
that the Commissioner and his or her duly authorized agents shall have access
to the project work whenever it is in preparation or progress. The municipality
shall provide proper facilities for access and inspection. The municipality
shall 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 shall insure that a party
to a subagreement shall 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
funding agreement do not require the execution of a formal 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 funding
agreement may only be increased by a formal amendment.
(B) The municipality shall receive from the
Commissioner a formal amendment before implementing changes which:
(i) alter the project performance standards;
or
(ii) alter the type of treatment
facilities provided by the project; or
(iii) delay or accelerate the project
schedule; or
(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 shall 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 grant share of any project unless the
municipality has an approved final plan of operation and shall not pay more
than 90 percent of the grant share of any project unless the municipality has
an approved operation and maintenance manual.
(7) Adoption of User Charge System and Sewer
Use Ordinance.
The municipality shall adopt the sewer use ordinance and
implement the user charge system developed under subsections (e) and (f) of
22a-482-3 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 shall comply with the applicable requirements
of section
22a-482-3(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 funding
agreement.
(B) The municipality
shall initiate procurement action for building the project promptly after the
award of financing. The Commissioner may annul or terminate the funding
agreement 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 closing. Failure to promptly
award all subagreement(s) for building the project shall result in a limitation
on allowable grant 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 operating experience;
(ii) train or provide for training of
operating personnel, including the preparation of curricula and training
material for operating personnel; and
(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; and
(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 and the
Commissioner shall cause final inspection to be made within 60 days of receipt
of the notice. When final inspection is completed and the Commissioner
determines that the treatment works have been satisfactorily constructed, in
accordance with the funding assistance agreement, the municipality may make a
request for final payment under subdivision (s) (5) of this section.
(q)
Financial Assistance
Agreement Amendments.
(1) Agreements
may be amended for project changes in accordance with this subsection. No
agreement may be amended to increase the amount of assistance unless the funds
are available for obligation. A formal amendment shall be effected only by a
written amendment to the agreement.
(2) For financial assistance awarded under
Sections
22a-482-1
to
22a-482-4,
an amendment to increase the amount may be made for:
(A) change orders, claims and arbitration
settlements; or
(B) revised bid
documents; or
(C) project changes
required by the Commissioner; or
(D) increased costs on
architectual/engineering agreements.
(r)
Enforcement. If the
Commissioner determines that the municipality has failed to comply with any
provision of these regulations, he or she may impose any of the following:
(1) the grant portion of the financing may be
withheld under subdivisions (t) (3) or (t) (4) of this section.
(2) grant project costs directly related to
the noncompliance may be disallowed; or
(3) project work may be suspended;
or
(4) a noncomplying municipality
may be found nonresponsible or ineligible for future state assistance;
or
(5) an injunction may be entered
or other equitable relief afforded by a court of appropriate jurisdiction;
or
(6) such other administrative or
judicial action may be instituted as is legally available and
appropriate.
(s)
Grant and Loan Payments. The municipality shall be paid the
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 amount set forth in the agreement and
any amendments thereto. Payments for engineering services shall be made in
accordance with subsection (f) of this section and payments for construction
contracts shall be made in accordance with subsections (m) and (n) of this
section. All allowable costs incurred before initiation of construction of the
project shall be claimed in the application for assistance for that project
before the award of the assistance or no subsequent payment shall be made for
the costs.
(1) Initial Request for Payment.
Upon award of financial assistance, the municipality may request payment for
the unpaid share of allowable project costs incurred before the award. Payment
for such costs shall be made in accordance with the negotiated payment schedule
included in the 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 agreement. Generally, payments shall be made within 13 days after
receipt of a request for payment.
(3) Adjustment. At any time before final
payment under the agreement, 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 which the municipality has received
funding assistance shall 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 when approved by the
Commissioner.
(5) Final Payment.
After completion of final inspection under subdivision (p) (11) of this
section, receipt and 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 funding 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 of the scheduled
completion.
(6) Assignment and
Release. By its acceptance of final payment, the municipality agrees to assign
to the state the state share of refunds, rebates, credits or other amounts,
including any interest, properly allocable to costs for which the municipality
has been paid by the state under the assistance agreement. 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 subject only to exceptions previously specified in writing between
the Commissioner and the municipality.
(7) Audit Upon Completion of the Project. The
municipality shall certify to the state that the project has been completed in
accordance with the final plans and specifications approved by the
Commissioner. The municipality shall within 90 days of such certification,
prepare an audit of the project performed by an independent public accountant
meeting the requirements of section
7-394a
and
7-396a
of the Connecticut General Statutes. Such audit shall be performed in
accordance with generally accepted accounting principles and shall identify any
expenditures made by the municipality not in conformance with the agreement.
The municipality further agrees that the auditors of Public Accounts of the
state shall have access to all records and accounts of the municipality
concerning the project. To provide such access the municipality agrees that it
shall preserve all its records and accounts concerning the project for a period
of 3 years after the date such audit is delivered to the state.
(t)
Administrative
Changes.
(1) Transfer of Agreements;
Change of Name Agreements. Transfer of an agreement and change of name
agreements require the prior written approval of the Commissioner. The
municipality may not approve any transfer of an agreement without the
concurrence of the Commissioner. The Commissioner shall prepare the necessary
transfer documents upon receipt of appropriate information and documents
submitted by the municipality.
(2)
Suspension of Work (Stop Work Orders). Work on a project or on a portion or
phase of a project for which funding assistance 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
funding agreement, 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 shall 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 shall 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 as
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 municipality 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 subdivision.
(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 to 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 subdivision (t) (3) of this
section or authorize resumption of work.
(ii) If a stop-work order is cancelled 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, the grant amount, the funding
assistance amount, or all of these, and the funding assistance 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 cancelled 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, 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 Funding Agreements. A
funding agreement 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 funding agreement at any time pursuant
to terms which are consistent with these regulations. The agreement shall
establish the effective date of termination of the project, the basis for
settlement of termination costs, the amount and date of payment of any sums due
either party, and the schedule of repayment of all sums borrowed from the Clean
Water Fund by the municipality. The Commissioner shall prepare the necessary
termination documents.
(B) Project
Termination by Municipality. A municipality may not unilaterally terminate the
project work except for good cause. The municipality shall 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, he or she
may enter into a termination agreement or unilaterally terminate, 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 or she may unilaterally terminate or annual the
agreement.
(C) 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 funding agreement in whole
or in part.
(ii) Termination
Action. The municipality shall 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 agreement in whole or in
part.
(iii) Basis for Termination.
An agreement 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 shall refund or credit to the state any 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 funding agreement.
(4) Annulment of Agreement.
The Commissioner may annul the funding agreement if he or she
determines that there has been no substantial performance of the project work
without good cause, there is convincing evidence the funding assistance 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 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 Sections
22a-482-1
to
22a-482-4,
when he or she determines that such deviations are essential to effect
necessary 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 at a minimum:
(i) the name of the municipality, the project
identification number, and the dollar value, if appropriate;
(ii) identification of the section of
Sections
22a-482-1
to
22a-482-4
from which a deviation is sought;
(iii) an adequate description of the
deviation and the circumstances in which it shall be used, including all
appropriate justification for the deviation request; and
(iv) a statement as to whether the same or a
similiar deviation has been requested 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 project file.