Illinois Administrative Code
Title 35 - ENVIRONMENTAL PROTECTION
Part 360 - GENERAL CONDITIONS OF STATE OF ILLINOIS GRANTS FOR SEWAGE TREATMENT WORKS UNDER THE ANTI-POLLUTION BOND ACT OF 1970
Subpart C - REQUIREMENTS APPLICABLE TO APPLICATIONS FOR GRANTS
Section 360.302 - Construction Contracts of Grantee
Current through Register Vol. 48, No. 38, September 20, 2024
a) This condition shall apply to construction contracts (subagreements) awarded by recipients of Step 3 or Step 2 and 3 projects only, except that it shall not apply to personal and professional service contracts, for which see General Condition Section 360.303, (Contracts for Personal and Professional Services - Consulting Engineering Agreements) below.
b) The project work shall be performed under one or more contracts awarded by the grantee to private firms, except for force account work authorized by the Agency.
c) Each contract shall be either a fixed-price (lump sum) contract or fixed-rate (unit price) contract, or a combination of the two, unless the Agency gives advance written approval for the grantee to use some other acceptable type of contract. The cost-plus-a percentage of cost type of contract shall not be used.
d) Each contract shall be awarded after formal advertising, unless negotiation is permitted in accordance with General Condition Section 360.301(m), (Negotiation of Subagreements) above. Formal advertising shall be in accordance with the following:
The applicant will cause adequate notice to be given of the solicitation by publication in newspapers or journals of general circulation, beyond the applicant's locality (statewide, generally) inviting bids on the project work, and stating the method by which bidding documents may be obtained and examined. Where the estimated prospective cost of Step 3 construction is ten million dollars or more, such notice must generally by published in trade journals of nationwide distribution. The applicant should in addition solicit bids directly from bidders, if it maintains a bidders list.
Adequate time, generally not less than 30 days, must be allowed between the date when public notice pursuant to paragraph (1) of this section 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.
A reasonable number of bidding documents (invitations for bid) shall be prepared by the grantee and shall be furnished upon request on a first-come, first-served basis. A complete set of bidding documents shall be maintained by the grantee and shall be available for inspection and copying by any party. Such bidding documents shall include:
Any contract awarded under this Invitation for Bids is expected to be funded in part by a grant from the Illinois Anti-Pollution Bond Fund. Neither the State of Illinois nor any of its departments, agencies or employees is or will be a party to this Invitation for Bids or any resulting contract;
The grantee shall provide for bidding by sealed bid and for the safeguarding of bids received until public opening.
If the grantee desires to amend any part of the bidding documents (including drawings and specifications) during the period when bids are being prepared, the amendments shall be communicated in writing to all firms who have obtained bidding documents in time to be considered prior to the bid opening time; when appropriate, the period for submission of bids shall be extended.
A firm which has submitted a bid shall be allowed to modify or withdraw its bid prior to the time of bid opening.
The grantee shall provide for a public opening of bids at the place, date and time announced in the bidding documents.
e) Negotiations of contract amendments (change orders)
The grantee is responsible for negotiation of construction contract change orders. This function may be performed by the grantee directly or, if authorized, by his consulting engineer. During negotiations the contractor shall:
The contract price or time may be changed only by a change order. When negotiations are required, they shall be conducted in accordance with paragraph Section 360.302(e) of this General Condition, as appropriate. The value of any work covered by a change order or of any claim for increases or decrease in the contract price shall be determined by the method set forth in Section 360.302(e)(2)(A-C) below which is most advantageous to the grantee.
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.
Prior to the execution of any change order in excess of $100,000, the grantee shall submit to the Agency for its review:
For the purpose of negotiated change orders to construction contracts under Agency grants, profit is defined as the net proceeds obtained by deducting all allowable costs (direct and indirect) from the price. The estimate of profit is to be reviewed by the grantee as are all other elements of price.
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 this General Condition. For change orders which include both additive and deductive items:
f) Progress payments to contractors
Except as may be otherwise required by applicable state law, prompt progress payments shall be made by grantees to prime contractors and by prime contractors to subcontractors and suppliers for eligible construction, material, and equipment costs, including those of undelivered specifically manufactured equipment, incurred under a contract under an Agency construction grant.
The grantee shall assure protection of the State's interest in progress payments made for specifically manufactured equipment. This protection must be in a manner or form acceptable to the grantee and shall take the form of recordation under the Uniform Commercial Code adequate to protect the interest of the grantee and the State.
In no case may progress payments for undelivered equipment or items be made in any amount greater than seventy-five percent of the cumulative incurred costs allocable to contract performance with respect to the undelivered 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 seventy-five 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.
Where applicable, appropriate provisions regarding progress payments must be included in each contract and subcontract.
g) Retention from progress payments
h) Required construction contract provisions
Each construction contract shall include the "General Conditions" of the "Contract Documents for Construction of Federally Assisted Water and Sewer Projects," a copy of which is included as Appendix A to these General Conditions. In addition, each construction contract entered into after July 1, 1976, shall include the following provisions:
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. For breach or violation of this warranty the owner shall have the right to annul this contract 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) Subcontracts under construction contracts
The award or execution of all subcontracts by a prime contractor and the procurement and negotiation procedures used by such prime contractor in awarding or executing such subcontracts shall comply with: