Current through Register Vol. 48, No. 38, September 20, 2024
a)
Except as is otherwise provided in Section (d) below, the provisions of Section
360.303(a) through (n) apply to all subagreements of grantees for architectural
or engineering services where the aggregate amount of services involved is
expected to exceed $10,000. The provisions of Section 360.303(d), (e), and (f)
are not required, but may be allowed where the population of the grantee
municipality is 25,000 or less according to the most recent U.S. census. When
$10,000 or less of services (e.g., for consultant or consultant subcontract
services) is required, the provisions of General Condition Section
360.301(n)
(Small Purchases) shall apply.
b) Type of Contract (Subagreement)
1) General
Cost reimbursement, fixed price or per diem types of
contracts or combinations thereof 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 utilized if the grantee submits an adequate independent cost
estimate and price comparison pursuant to Section 360.303(h).
2) Contracts prohibited
The cost-plus-percentage-of-cost and the
percentage-of-construction-cost types of contract are prohibited.
3) Fixed price contracts
An acceptable fixed price contract is one which establishes a
guaranteed maximum price which may not be increased except to the extent that a
contract amendment increases the scope of work.
4) Cost reimbursement contracts
Each cost reimbursement contract must clearly establish a
cost ceiling which the engineer may not exceed without formally amending the
contract and a fixed dollar profit which may not be increased except in case of
a contract amendment which increases the scope of the work.
5) Per diem contracts
A per diem agreement expected to exceed $10,000 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 such as where the first task under Step 1 grant involves
establishing the scope and cost of succeeding Step 1 tasks, or for incidental
services such as expert testimony or intermittent or professional testing
services. (Resident engineer and resident inspection services should generally
be compensated under paragraph (b)(3) or (4) of this Section 360.303.) 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.
6)
Compensation procedures
If, under either a cost reimbursement of fixed price
contract, the grantee desires to utilize a multiplier type of compensation, all
of the following must apply:
A) The
multiplier and the portions of the multiplier allocable to overhead and
allocable to profit have been specifically negotiated;
B) The portion of the multiplier allocable to
overhead includes only allowable items of cost under the cost principles
approved by the Agency;
C) The
portions of the multiplier allocable to profit and allocable to overhead have
been separately identified in the contract; and
D) The fixed price contract includes a
guaranteed maximum price for completion of the specifically defined scope of
work; the cost reimbursement contract includes a fixed dollar profit which may
not be increased except in a case of a contract amendment which increases the
scope of work.
c) Transition Policy
1) Announcement and Selection
The requirements of Section 360.303(c) through (e) of this
General Condition shall not apply to Step 1 work where the Step 1 grant was
awarded or the initiation of Step 1 work was approved by the Agency prior to
July 1, 1976, nor to subsequent Step 2 and Step 3 work in accordance with
Section 360.303(c)(3), provided that the grantee is satisfied with the
qualifications and performance of the engineer employed.
2) Required Consulting Engineering Provisions
Effective July 1, 1976, grant assistance for Steps 1, 2, or 3
will not be awarded nor will initiation of Step 1 work be approved unless the
subagreement clauses required pursuant to Appendix C. (Required Provisions -
Consulting Engineering Agreements) are included in the consulting engineering
subagreement.
3)
Enforcement:
A) Refusal by a consulting
engineer to insert the required access clause, or to allow access to its
records or to renegotiate a consulting engineering contract in accordance with
the foregoing requirements, will render costs incurred under such contract
unallowable. Accordingly, all such costs will be questioned and disallowed
pending compliance with this general condition and Appendix C.
B) Where the Agency determines that the time
required to comply with the access to records and type of contract provisions
of this general condition will unduly delay award of grant assistance, it may
award the grant assistance conditioned upon compliance with this general
condition within a specified period of time. In such event, no grant payments
for the affected engineering work may be made until such compliance has been
obtained.
4) Access to
Records - Audit:
A) After June 30, 1975, a
construction grant for Steps 1, 2, or 3 will not be awarded unless an
acceptable records and access clause is included in the consulting engineering
agreement. The clause contained in section 9 of Appendix C, (Required
Provisions - Consulting Engineering Agreements) shall be used after July 1,
1976.
B) For the purpose of
determining where the Agency shall exercise its right of access with respect to
consulting engineering agreements entered into between June 30, 1975 and July
1, 1976, the Agency will follow the guidelines set forth in Appendix B, (Access
to Records - Audit (Existing Consulting Engineering Agreements) of these
General Conditions.
d) Public Notice:
1) Adequate notice as provided in paragraph 2
of this section must be given of the requirement for architectural or
engineering services for all subagreements with an anticipated price in excess
of $25,000, except as provided in paragraphs (3), (4) and (5) of this section.
In providing public notice pursuant to paragraph 2 of this section, grantees
must comply with the policies enunciated in paragraphs (b), "Local Preference",
and (c) "Competition", of General Condition Section (General Conditions for all
Subagreements).
2) 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.
3) This public notice requirement and the
related requirements of Section 360.303(e) and (f) shall not be required, but
may be followed, where the population of the grantee municipality is 25,000 or
less according to the latest U.S. census.
4) This public notice requirement and the
related requirements of Section 360.303(e), (Evaluation of qualifications) and
(f), (Solicitation and Evaluation of Proposals), of this General Condition,
shall not apply to the procurement of architectural or engineering services for
Steps 2 or 3 of a grant if the grantee is satisfied with the qualifications and
performance of an engineer who performed all or any part of the Step 1 or Step
2 work, the engineer has the capacity to perform the subsequent steps, and the
grantee desires the same engineer to provide architectural or engineering
services for the subsequent steps.
5) When a single treatment works is segmented
into two or more Step 3 projects, and if the Step 2 work is accordingly
segmented so that the initial contract for preparation of construction drawings
and specifications does not cover the entire treatment works to be built under
one grant, the grantee need not announce the requirement for architectural or
engineering services for subsequent segments of design work under one grant.
The grantee may use the same engineering form that was selected for the initial
segment of Step 2 work for subsequent segments if he desires to do so. All
other appropriate provisions of these sections, including cost review and
negotiation of price, will apply to each segment of work.
e) Evaluation and qualifications:
1) The grantee shall review the
qualifications of firms which responded to the announcement and shall uniformly
evaluate the firms.
2)
Qualification shall be evaluated by an objective process such as by the the
appointment of a board or committee, which, to the extent practicable, should
include persons with technical skills.
3) Criteria which should be considered in the
evaluation of candidates for submission of proposals should include:
A) Specialized experience and technical
competence of the candidate or firm and its personnel (including a joint
venture, association or professional subcontract) in connection with the type
of services required and the complexity of the project;
B) Past record of performance on contracts
with the grantee, 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;
C)
Capacity of the candidate to perform the work (including any specialized
services) with the time limitations, taking into consideration the current and
planned workload of the firm;
D)
The familiarity of the candidate with types of problems applicable to the
project; and
E) Avoidance of
personal and organizational conflicts of interest prohibited under State and
local law.
f)
Solicitations and Evaluation of Proposals:
1)
Requests for professional services proposals must be sent to no fewer than
three candidates who responded to the announcement, unless after good faith
effort to solicit qualifications in accordance with Subsection (d), (Public
Notice) hereof, fewer than three qualified candidates respond, in which case
all qualified candidates must be provided requests for proposals.
2) Requests for professional services
proposals must be in writing and must contain the information necessary to
enable a prospective offeror to prepare a proposal properly. The request for
proposals must include the solicitation statement required pursuant to Section
360.303(k)(1), hereof and must inform offerors of the evaluation criteria,
including all those in paragraph (3) of this section, and of the relative
importance attached to each criterion (a numerical weighted formula need not be
utilized).
3) All proposals
submitted in response to the request for professional services proposals must
be uniformly evaluated. Evaluation criteria shall include as a minimum, all
criteria stated in Section 360.303(e)(3). The grantee shall also evaluate the
candidate's proposed method to accomplish the work required, including, where
appropriate, demonstrated capability to explore and develop innovative or
advanced techniques and designs.
4)
Proposals shall be evaluated by an objective process such as the appointment of
a board or committee which to the extent practicable includes 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, except as required to be disclosed pursuant to
State or local law or to the Agency pursuant to Section 360.303(h), (Cost and
Price Considerations) hereof.
5) At
no point during the entire procurement process shall information be conveyed to
any candidate which would provide an unfair competitive advantage.
g) Negotiation
1) Grantees are responsible for negotiation
of their contracts for architectural or engineering services. Contract
procurement including negotiation may be performed by the grantee directly or
by another non-state governmental body, person or firm retained for the
purpose. Contract negotiations may include the services of technical, legal,
audit or other specialists to the extent deemed appropriate.
2) Negotiation shall be conducted in
accordance with state or local procedure.
3) The object of negotiations with any
candidate shall be to reach agreement on the provisions of the proposed
contract. The grantee and the candidate shall discuss, as a minimum:
A) The scope and extent of work and other
essential requirements;
B)
Identification of the personnel and facilities to accomplish the work within
the required time, including where needed, employment of additional personnel,
subcontracting, joint ventures, etc;
C) Provision of the required technical
services in accordance with regulations and criteria established for the
project; and
D) A fair and
reasonable price for the required work, to be determined in accordance with the
cost and profit considerations set forth in Section 360.303(h) and (i), and
payment provisions.
h) Cost and Price Considerations:
1) General
It is the policy of the Agency that the cost of price of all
subagreements and amendments thereto must be considered. For each subagreement
in excess of $10,000 but not greater than $100,000 grantees shall use the
procedures described in paragraph (3) of this section or an equivalent
process.
2) Subagreements
over $100,000
For each subagreement expected to exceed $100,000, or for two
subagreements which aggregate more than $100,000 awarded to an engineer for
work on one step, or where renegotiation or amendment itself is in excess of
$100,000, the provisions of this paragraph (2) shall apply.
A) The candidate(s) selected for negotiation
shall submit to the grantee for review sufficient cost and pricing data as
described in paragraph (3) of this section to enable the grantee to ascertain
the necessary and reasonableness of costs and amounts proposed, and the
allowability and eligibility of costs proposed.
B) The applicant/grantee shall submit to the
Agency for review:
i) Documentation of the
public notice of need for architectural or engineering services, selection
procedures used, and negotiation methodology used, in those cases where
sections Section 360.303(d), (e) and (f) are applicable;
ii) The cost and pricing data submitted by
the selected engineer;
iii) A
certification of review and acceptance of the selected engineer's cost or
price; and
iv) A copy of the
proposed subagreement document.
C) The Agency will review the complete
subagreement actions and approve the grantee's compliance with appropriate
procedures prior the the award of the subagreement. The grantee shall be
notified upon completion of the review.
3) Cost Review
A) A review of proposed subagreement costs
shall be made by the grantee.
B) As
a minimum, proposed subagreement costs shall be presented in summary format
prescribed by the Agency and shall be supported by a certification executed by
the selected engineer that proposed costs reflect complete, current and
accurate cost and pricing data applicable to the date of anticipated
subagreement award.
C) 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 maximum
total dollar amount of profit shall be set forth separately in the cost summary
for cost reimbursement contracts.
D) More detailed cost data than that required
by the summary format may be required by the grantee to substantiate the
reasonableness of proposed subagreement costs. Such detailed documentation is
normally required by the Agency only when the selected engineer is unable to
certify that the cost and pricing data used are complete, current and accurate.
The Agency may, on a selected basis, perform a preaward cost analysis on any
subagreement. Normally, a provisional overhead rate will be agreed upon prior
to contract award.
E) Appropriate
consideration should be given to General Condition Section
360.801,
(Determination of Allowable Costs) which contains general cost principles which
must be used for the determination of the allowability of costs under grants.
The engineer's actual costs, direct and indirect, allowable for State
participation shall be determined in accordance with the terms and conditions
of the subagreement and this subpart. Examples of costs which are not allowable
under those cost principles include, but are not limited to, entertainment,
interest on borrowed capital and bad debts.
F) 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 in accordance with
Section 360.303(3)(E) of this section. The engineer must propose and account
for costs in a manner consistent with his normal accounting
procedures.
G) Subagreements
awarded on the basis of review of a cost element summary and certification of
complete, current and accurate cost, and pricing data shall be subject to
downward renegotiation or recoupment of funds where the Agency determines that
such certification was not based on complete, current and accurate cost and
pricing data or not based on costs allowable under the appropriate Agency cost
principles at the time of award.
i) Profit
The objective of negotiations shall be the exercise of sound
business judgement 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. Profit on a subagreement and each
amendment to a subagreement under a grant should be sufficient to attract
engineers who possess talents and skills necessary to the accomplishment of
project objectives, and to stimulate efficient and expeditious completion of
the project. Where cost review is performed, the estimate of profit should be
reviewed by the grantee as are all other elements of price.
j) Award of Subagreement
After the close of negotiations and after review and approval
by the Agency if required pursuant to Section 360.303(h)(2), the grantee may
award the contract. Unsuccessful candidates should be notified promptly.
k) Required Solicitation and
Subagreement Provisions:
1) Required
solicitation statement
A) Requests for
qualifications or proposals must include the following statement, as well as
the proposed terms of the subagreement.
"Any contract or contracts awarded under this request for
(qualifications/professional proposals) are expected to be funded in part by a
grant from the Illinois Environmental Protection Agency. This procurement will
be subject to the requirements of the grant offer."
B) Neither the State of Illinois nor the
Illinois Environmental Protection Agency is nor will be a party to this request
for (qualifications/professional proposals) or any resulting
contract.
2) Content of
subagreement
A) Each subagreement must
adequately define:
i) The scope and extent of
project work;
ii) The time for
performance and completion of the contract work, including where appropriate,
dates for completion of significant project tasks;
iii) Personnel and facilities necessary to
accomplish the work within the required time;
iv) The extent of subcontracting and
consultant agreements.
B) If any of these elements cannot be defined
adequately for later tasks or steps at the time of contract execution, the
subsequent tasks or steps shall not be included in the contract at that
time.
3) Required
subagreement provisions. Each consulting engineering contract must include the
provisions set forth in Appendix C, (Required Provisions - Consulting
Engineering Agreements) to these general conditions.
l) Subagreement Payments - Architectural or
Engineering Services:
1) Generally, payment
will be made under consulting engineering contracts upon the completion of a
step, or if specified in the grant agreement, upon completion of specific tasks
within the step.
2) Upon
satisfactory completion by the engineer of the work called for under the terms
of a contract, and upon acceptance of such work by the grantee, with the
concurrence of the Agency, the engineer will be paid the unpaid balance of any
money due for such work, including any retained percentages relating to this
portion of the work.
3) Payment may
not be withheld for professional services, except as provided in the contract
for professional services. Any withholding should be limited to only that
amount necessary to assure contract compliance.
m) Applicability to Existing Contracts. In
some cases a negotiated subagreement may have been executed prior to the
effective date of these general conditions to cover work under more than one
step of a grant. Such contracts already in existence may not comply with the
requirements of Section
360.301
and Section 360.303 herein. Section 360.303(C) of this General Condition and
Appendix B set forth Agency policy with respect to such contracts and must be
implemented prior to the grant award action for the next step under the
grant.
n) Subcontracts under
subagreements for architectural or engineering services:
1) The award or execution of subcontracts
under a prime contract for architectural or engineering services awarded to an
engineer by a grantee, and the procurement and negotiation procedures used by
the engineer in awarding such subcontracts are not required to comply with any
of the provisions, selection procedures, policies or principles set forth in
General Condition in Section
360.301
or Section 360.303 except those specifically stated in paragraph (2) of this
section.
2) The award or execution
of subcontracts in excess of $10,000 under a prime contract for architectural
or engineering services and the procurement procedures used by the engineer in
awarding such subcontracts must comply with the following:
A) General Condition Section
360.301(b),
(Local preference).
B) General
Condition Section 360.303(h), (Cost and Price Considerations).
C) General Condition Section 360.303(i),
(Profit).
