Contractors may earn only fair and reasonable profits under contracts for projects receiving CWFP assistance. Profit included in a formally advertised, competitively bid, fixed price or unit price construction contract is presumed to be reasonable.
(4) Solicitation of disadvantaged business enterprises. NR 162.09(4)(a)(a)
Whenever a recipient or its prime contractor is procuring construction, equipment, raw materials, or supplies for a project funded wholly or in part with CWFP financial assistance, they shall make good faith efforts to provide DBEs opportunities to compete for participation in the project. Recipients and their prime contractors shall comply with DBE regulations contained in s. 40 CFR part 33
in the manner determined by the CWFP. Failure to comply with DBE regulations and requirements may result in a sanction as defined in par. (b)
. Requirements may include any of the following activities:
Use outreach and recruitment activities to make DBEs aware of contracting opportunities, including any of the following activities:
Including a sentence in bid advertisements that encourages DBEs to submit bids or proposals, and submitting a copy of the advertisement to DNR with evidence of publishing.
Contacting DBEs via telephone, faxed or mailed letter, e-mail, or other methods of correspondence, informing the DBEs of the project and encouraging their participation, and submitting documentation of those contacts to DNR.
Advertising the project in trade publications, and submitting a copy of the advertisement and evidence of publishing to DNR.
Arrange timeframes for contracts and establish delivery schedules when possible in a way that encourages and facilitates participation by DBEs in the competitive process, including posting solicitations for bids or proposals for at least 30 calendar days before the bid or proposal closing date, when possible.
Divide total project requirements into smaller tasks or quantities, when economically feasible, to permit maximum participation by DBEs in the competitive process.
Consider contracting with a consortium of DBEs when a contract is too large for one DBE to handle individually.
Use the services and assistance of the federal small business administration and the minority business development agency of the department of commerce.
Include in project bidding documents DBE information prescribed by the department.
Solicit DBEs certified under the unified certification program or by the U.S. environmental protection agency or an agency approved by the U.S. environmental protection agency to certify DBEs, and provide to the department documentation of solicitation efforts made.
Document any participation of DBEs, including MBEs and WBEs, and submit the documentation in the required form to the department.
Failure to comply with par. (a)
may result in a sanction of up to 8% of the construction costs eligible for subsidy being financed at the market interest rate. This paragraph does not apply to any recipient that awards contracts to MBEs or WBEs or both in an amount equal to or greater than the applicable fair share objectives. Fair share objectives means the percentage of participation in project costs by MBEs and WBEs that can be reasonably procured. Fair share objectives are determined by the department as negotiated with and agreed to by the U.S. environmental protection agency under 40 CFR part 33
, subpart D, given the availability of qualified MBEs and WBEs in the state.
(5) Force account work.
The department may approve financial assistance for force account work based on the applicant's certification that at least one of the following applies:
The applicant's staff has the necessary competence required to accomplish the work and they can accomplish the required tasks more economically as force account work.
Emergency circumstances make force account work necessary.
(6) Contracts for architectural or engineering services. NR 162.09(6)(a)(a)
The department may review architectural or engineering service contracts and amendments for the eligibility and reasonableness of costs. The department shall only provide financial assistance for costs that are eligible and reasonable.
Reasonableness reviews may include a comparison of architectural or engineering fees for the project to the range of architectural or engineering fees for other similar projects undertaken within the state. The department may consider the scope of work, conditions unique to the project, and any other factors affecting costs.
Architectural or engineering services contracts shall indicate a maximum estimated cost for a defined scope of work that the contractor may not exceed without a negotiated contract amendment for additional costs.
NR 162.09(7)(a)(a) Applicability.
This subsection applies to construction contracts or subcontracts awarded by recipients for any construction activity.
Type of contract.
The scored project work shall be performed under one or more contracts awarded by the recipient to private firms except for force account work authorized by sub. (5)
. Each contract shall be a fixed or unit price contract, or a time and expense contract, unless the department gives advance written approval for the recipient to use some other acceptable type of contract. In any event, the cost–plus–a–percentage–of–
cost type contract may not be used.
The recipient shall secure a fair and reasonable price for each contract change order, and submit each change order and all associated backup documentation to the department construction management engineer within 90 days of execution of the change order, or, for change orders executed 90 days or more prior to submittal of the CWFP application, within 30 days of the date on which DNR receives the application.
The department may require that all change orders for a project funded under this chapter be approved by the department.
NR 162.09 History
History: CR 14-043
: cr. Register June 2015 No. 714
, eff. 7-1-15.
NR 162.10 Reimbursement and refinancing. NR 162.10(1)(1)
Reimbursement of previously paid project costs.
The department may reimburse eligible project costs previously paid by the municipality from its internal funds, if the reimbursement is in compliance with applicable U.S. treasury reimbursement regulations in 26 CFR 1.150
–2 and the criteria under s. NR 162.01 (intro.)
(2) Refinancing of interim financing.
The department may refinance the eligible portion of a municipality's interim financing subject to the limits established in s. NR 162.04 (3)
NR 162.10 History
History: CR 14-043
: cr. Register June 2015 No. 714
, eff. 7-1-15.
NR 162.11 Loan interest rate.
The department shall calculate interest rates in accordance with s. 281.58 (12)
, Stats., and all of the following:
For project costs sanctioned under s. NR 162.09 (4) (b)
for noncompliance with requirements for solicitation of DBEs, the interest rate shall be the market interest rate.
If all of the eligible costs of a scored project are classified under one category only in sub. (1)
, the interest rate shall be the rate stated in the applicable section of s. 281.58 (12)
, Stats. If a scored project contains eligible costs from more than one of the categories, and s. 281.58 (12)
, Stats., specifies interest rates for the categories that are different from each other, a composite interest rate shall be computed for the scored project in accordance with par. (b)
All of the following methods, in the order listed, shall be used to estimate the total eligible costs associated with the scored project:
Each eligible cost that can be allocated, based on its purpose, exclusively to any one of the categories in sub. (1)
, shall be so allocated.
Each eligible cost that cannot be allocated to a particular category, shall be divided among the categories based on the portion of the design flow of the project that is attributable to each category.
RC = (RT 1)(PR 1) + (RT 2)(PR 2) + (RT 3)(PR 3) + (RT 4)(PR 4) + (RT 5)(PR 5)
RC . . . . . is the composite interest rate for the project.
RT 1 . . . . is the interest rate for compliance maintenance and new or changed limits projects.
RT 2 . . . . is the interest rate for runoff treatment works and BMP projects.
RT 3 . . . . is the interest rate for unsewered projects.
RT 4 . . . . is the market interest rate.
RT 5 . . . . is the interest rate established under s. 281.58 (12) (a) 5.
, Stats., for projects providing facilities to receive or store septage, or treatment capacity for septage, as defined in s. 281.58 (1) (cv)
PR1 . . . is the percentage of the project being financed by the CWFP that is eligible under s. NR 162.03 (1) (a)
, and (c)
if the municipality is not a violator of an effluent limitation as defined in s. 281.58 (1) (e)
PR2 . . . is the percentage of the project being financed by the CWFP that is eligible under s. NR 162.03 (3)
PR3 . . . is the percentage of the project being financed by the CWFP that is eligible under s. NR 162.03 (1) (d)
PR4 . . . is the percentage of the project being financed by the CWFP that is eligible under s. NR 162.04 (1) (b)
, and under s. NR 162.03 (c)
if the municipality is a violator of an effluent limitation as defined in s. 281.58 (1) (e)
Except as provided in s. 281.59 (13)
, Stats., the interest rate shall be based on the rates in effect at the time the financial assistance agreement is executed.
NR 162.11 History
History: CR 14-043
: cr. Register June 2015 No. 714
, eff. 7-1-15; correction in (1) (a) made under s. 35.17
, Stats., Register June 2015 No. 714
NR 162.12 Financial assistance agreement conditions. NR 162.12(1)(1)
Each financial assistance agreement shall require the recipient to do all of the following:
The recipient shall agree to maintain a system of user charges and a sewer use ordinance in accordance with s. NR 162.08
for the design life of the treatment works or BMP.
The treatment works or BMP shall comply with all pertinent requirements of federal, state and local environmental laws and regulations.
For financial assistance provided directly from a federal capitalization grant, the recipient shall agree to comply with the requirements contained in 33 USC 1251
and 33 USC 1381
, if required by the terms of the capitalization grant.
The recipient shall provide timely sewerage service to all users of the treatment works within the delineated service area except in areas where annexation is refused, pursuant to s. 281.43 (1m)
The recipient shall comply with all state and local laws regarding procurement and public contracts.
The recipient shall provide department representatives access to the scored project, including all construction activities, while the project is in preparation or progress. The recipient shall allow department representatives access to records of contractors and subcontractors pertinent to the project for the purpose of inspections, examinations, excerpts, copies, and transcriptions. The recipient shall also allow DOA access to records for audits.
The recipient shall expeditiously initiate and complete the project, including construction of and payments for the portions ineligible for financial assistance, in accordance with the financial assistance agreement and application, including any project schedule approved by the department. Failure of the recipient to promptly initiate project work may be deemed a breach of the financial assistance agreement.
The recipient shall promptly notify the department of changes to the project, including notifying a department plan reviewer and the department construction management engineer when plans and specifications are being revised.
The recipient shall promptly submit to the department a copy of any prime contract or modification to a prime contract.
The recipient shall begin repayment of the principal balance of the loan no later than 12 months after the substantial completion date of the project as specified in the financial assistance agreement. The recipient shall make the final principal payment no later than 20 years after the date of the financial assistance agreement.
The recipient shall develop an operation and maintenance manual, if applicable to the project, and provide documentation to the department as follows:
Develop an operation and maintenance manual that addresses all of the following areas, as applicable to the collection system, including all treatment works facilities outside of the fence of the wastewater treatment plant, or to the wastewater treatment plant, including all treatment works facilities inside the fence of the wastewater treatment plant, or to the entire treatment works:
Provide a copy of the operations and maintenance manual to the department.
For projects or facilities that have an operation and maintenance manual that was submitted to the department in the past and addressed all of the items in subd. 1. a.
, the requirements in subds. 1.
may be met by developing and submitting an addendum to the previously submitted manual.
The project engineer and the authorized representative of the recipient shall certify, in the form required by the CWFP, that the operation and maintenance manual meets or exceeds the requirements of this paragraph.