NR 167.18(2) (2)Profits. Only fair and reasonable profits may be paid to contractors by political subdivisions under financial assistance agreements. Profits included in a formally advertised, competitively bid, fixed price or unit price construction contract are presumed to be reasonable.
NR 167.18(3) (3)Financial assistance recipient responsibility. The recipient is responsible for the administration and successful completion of the project as well as acceptance of the terms of the financial assistance agreement.
NR 167.18(4) (4)Minority-owned and women-owned businesses. This subsection applies to each recipient of financial assistance and those employed by the recipient to plan, design, construct or modify the project. This subsection applies to contracts for services, equipment, raw materials and supplies. In order to provide minority and women owned businesses the maximum feasible opportunity to compete for work related to the project, all of the following conditions shall be met:
NR 167.18(4)(a) (a) Recipients of the financial assistance, contractors and subcontractors shall use minority and women owned businesses to the extent possible.
NR 167.18(4)(b) (b) Recipients, contractors and subcontractors shall make good faith efforts to provide minority and women owned businesses the maximum feasible opportunity to compete for contracts and subcontracts. Good faith efforts include the following:
NR 167.18(4)(b)1. 1. Soliciting bids from qualified, minority owned businesses certified by the department of administration and qualified woman owned businesses whenever contracts and subcontracts are awarded.
NR 167.18(4)(b)2. 2. Providing to minority and women owned businesses, upon request, a list of individuals and firms in possession of plans, specifications and other information relevant to the project.
NR 167.18(4)(b)3. 3. Breaking down work into smaller projects to maximize the opportunity of minority and women owned businesses to compete for contracts and subcontracts.
NR 167.18(4)(b)4. 4. Establishing work schedules which will allow minority and women owned businesses to compete for contracts and subcontracts.
NR 167.18(4)(b)5. 5. Using the assistance of the department as appropriate.
NR 167.18(4)(c) (c) The recipient shall document the efforts made to provide minority and women owned businesses with the opportunity to compete for contracts and subcontracts.
NR 167.18(4)(d) (d) If requested, a recipient shall explain to a minority or woman owned business which bid but did not receive a contract, why the contract was not awarded to it.
NR 167.18(4)(e) (e) Failure to comply with pars. (b) to (d) shall result in a portion of the project cost eligible for subsidy being financed at the market interest rate.
NR 167.18 Note Note: The utilization goals for minority and women owned businesses is negotiated annually between the department and the U.S. environmental protection agency.
NR 167.18(5) (5)Force account work. The department may approve financial assistance for force account work based on the recipient's certification that one of the following conditions exist:
NR 167.18(5)(a) (a) The recipient has the necessary competence required to accomplish the work and the work can be accomplished more economically by the use of force account work.
NR 167.18(5)(b) (b) Emergency circumstances dictate the use of force account work.
NR 167.18(6) (6)Contracts for architectural or engineering services.
NR 167.18(6)(a)(a) The department may review architectural or engineering service contracts and amendments for the eligibility and reasonableness of costs. The department may not provide financial assistance for costs which are not eligible or reasonable.
NR 167.18(6)(b) (b) Reasonableness reviews conducted on architectural and engineering service contracts shall consider the scope of work, the recipient's procurement and negotiation process associated with costs, conditions unique to the project and any other factors impacting costs.
NR 167.18(6)(c) (c) Architectural or engineering service contracts shall indicate a maximum estimated cost for a defined scope of work which cannot be exceeded without a negotiated contract amendment prior to incurring additional costs.
NR 167.18(7) (7)Construction contracts and subcontracts.
NR 167.18(7)(a)(a) Type of contract. The 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, unless the department gives advance written approval for the recipient to use some other acceptable type of contract. The cost-plus-a-percentage-of-cost contract may not be used.
NR 167.18(7)(b) (b) Contract change orders.
NR 167.18(7)(b)1.1. The recipient shall secure a fair and reasonable price for the required work required by contract change orders.
NR 167.18(7)(b)2. 2. The department may require that change orders for projects funded under this chapter be approved by the department.
NR 167.18 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99; correction in (4) (b) 1. made under s. 13.92 (4) (b) 6., Stats., Register January 2012 No. 673.
NR 167.19 NR 167.19Financial assistance disbursements. The loan recipient shall submit to the department requests for loan disbursements for eligible project costs on the forms provided by the department.
NR 167.19 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.20 NR 167.20Financial management. The political subdivision that receives a LRLP loan shall:
NR 167.20(1) (1) Maintain its project accounting in accordance with generally accepted governmental accounting standards.
NR 167.20(2) (2) Maintain a financial management system that conforms to the requirements, terms and conditions contained in any financial assistance agreement entered into under s. 281.59 (11), Stats.
NR 167.20(3) (3) Comply with 26 CFR 1.103 for maintaining the tax-exempt status of the bonds or notes sold to the land recycling loan program.
NR 167.20 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.21 NR 167.21Amendments to financial assistance agreements.
NR 167.21(1)(1) The amount of financial assistance in the financial assistance agreement may only be increased by an amendment and may only be made upon department review and acceptance of any cost increases as eligible, reasonable and necessary for the accomplishment of project objectives.
NR 167.21(2) (2) Financial assistance agreement amendments which increase the amount of financial assistance shall be subject to the availability of funds and PV subsidy in accordance with s. 281.59, Stats.
NR 167.21(3) (3) The interest rate for loan funds advanced in accordance with an amended financial assistance agreement shall be the same as the interest rate of the original financial assistance agreement unless there is no PV subsidy available, in which case the interest rate shall be the market interest rate. The final loan maturity shall remain the same established in the financial assistance agreement.
NR 167.21(4) (4) A financial assistance agreement amendment shall be effective on the date it is executed by the department and DOA.
NR 167.21 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.22 NR 167.22Disputes. Except as otherwise provided by law, any dispute arising under this chapter, prior to the execution of a financial assistance agreement, shall be decided in writing by the department. The department shall serve a copy of the decision on the recipient personally or by mail. A decision of the department may be reviewed pursuant to ch. 227, Stats., and ch. NR 2.
NR 167.22 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.23 NR 167.23Records and record retention.
NR 167.23(1)(1)Requirements. The recipient shall maintain books, documents, papers and records and accounting procedures in accordance with generally accepted government accounting standards, the financial assistance agreement and ch. Adm 35 and shall retain them in accordance with s. 19.21, Stats. The recipient shall require contractors, including contractors for professional services, to maintain books documents, papers and records to the project which are necessary for the recipients' compliance with this chapter.
NR 167.23(2) (2)Inspection. The department or its agents may during normal business hours inspect and copy LRLP- related records of the recipient and its contractors, including contracts for professional services.
NR 167.23(3) (3)Record retention. The recipient and contractors of recipients shall preserve and make their records available to the department until expiration of 3 years from the date of project completion. If a financial assistance agreement is partially or completely terminated, the records relating to the work terminated shall be preserved and made available for a period of 3 years from the date of any resulting final termination settlement. Records which relate to appeals, disputes or litigation arising out of the performance of the project, shall be retained until any appeals, disputes or litigation have been finally resolved or for a period of 3 years from the date of project completion, whichever is later.
NR 167.23 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.24 NR 167.24Breach of contract.
NR 167.24(1) (1) Upon breach of contract by the recipient, the department and DOA may do any of the following:
NR 167.24(1)(a) (a) Declare the unpaid loan balance mature and immediately payable.
NR 167.24(1)(b) (b) Increase the interest rate on the unpaid balance of the loan to the market interest rate in effect on the date the financial assistance agreement was executed.
NR 167.24(1)(c) (c) Immediately terminate the agreement and disburse no additional loan funds, if the loan has not been fully disbursed.
NR 167.24(1)(d) (d) Seek an injunction or any other equitable or judicial relief from a court of appropriate jurisdiction.
NR 167.24(1)(e) (e) Seek any other appropriate administrative remedy.
NR 167.24(2) (2) DOA's receipt of any payment after the occurrence of a breach of contract does not constitute the department's waiver of any rights and remedies under this section.
NR 167.24 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.25 NR 167.25Noncompliance. Upon failure of the recipient to comply with ss. 281.59 and 281.60, Stats., or with provisions of this chapter, the department may do any of the following:
NR 167.25(1) (1) Refuse to enter into a financial assistance agreement.
NR 167.25(2) (2) Seek penalties as provided in s. 281.59 or 281.60, Stats.
NR 167.25(3) (3) Seek any other appropriate remedy, relief or penalty.
NR 167.25 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
NR 167.26 NR 167.26Variances.
NR 167.26(1) (1)General. The department may approve a variance from a requirement of this chapter when it determines that a variance is essential to effect necessary financial assistance actions or department objectives where special circumstances make a variance in the best interest of the state. Before granting a variance, the department shall take into account factors such as good cause, circumstances beyond the control of the recipient and financial hardship.
NR 167.26(2) (2)Applicability. A recipient may request a variance from any nonstatutory requirement of this chapter.
NR 167.26(3) (3)Request for variance. A request for a variance shall be submitted in writing to the department, as far in advance as the situation will permit. Each request for a variance shall contain the following:
NR 167.26(3)(a) (a) The section of this chapter from which a variance is sought, an adequate description of the variance desired, and the facts which the recipient believes warrant the department's approving the variance.
NR 167.26(3)(b) (b) A statement as to whether the same or a similar variance has been requested previously by the recipient, and if so, the circumstances of the previous request.
NR 167.26 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.