Current through Register Vol. 48, No. 38, September 20, 2024
The following procedures shall apply to construction
contracts (subagreements) awarded by loan recipients for the construction phase
only. They shall not apply to personal and professional service
contracts.
a) Each construction
contract shall be awarded after formal advertising, unless negotiation is
permitted in accordance with Section
662.610(i).
b) The bid advertisement shall notify the
bidders that the procurement will be subject to the following requirements:
1) this Part;
2) the Davis-Bacon Act (40 U.S.C. 3141
through 3148) and regulations adopted
under that Act by the U.S. Department of Labor;
3) the Employment of Illinois Workers on
Public Works Act [30 ILCS 570 ];
4) the use of American iron and steel as
required by Sec. 1452(a)(4) of the federal Safe Drinking Water Act
(42 U.S.C.
300j-12(a)(4));
5) the Participation by Disadvantaged
Business Enterprises in United States Environmental Protection Agency Programs
(40 CFR
33); and
6) the Build America Buy America Act (BABA
Act) at Public Law
117-58,
Sections
70901 through 70952 (41 U.S.C.
8301 note), as applicable; and
7) any applicable federal or State executive
orders.
c) A complete set
of bidding documents shall be maintained by the loan recipient and shall be
available for inspection and copying. Bidding documents shall include:
1) A complete statement of the work to be
performed, including necessary drawings and specifications, and the required
completion schedule;
2) The terms
and conditions of the contract to be awarded;
3) 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;
4) The
statement that any contract awarded in response to the bid is expected to be
funded in part by a loan from the PWSLP, and that neither the State of Illinois
nor any of its departments, agencies, or employees is or will be a party to
this bidding or any resulting contract;
5) Responsibility requirements or criteria
that will be used in evaluating bidders, provided that an experience
requirement or performance bond may not be used unless adequately justified by
the loan recipient;
6) A proposal
form, to be used by all bidders, that includes the following language:
A) By submission of the bid, each bidder
certifies, and in the case of a joint bid, each party to the joint bid
certifies as to the party's own organization, that, in connection with the bid:
i) the prices in the bid have been arrived at
independently, without consultation, communication, or agreement, for the
purpose of restricting competition, as to any matter relating to the prices
with any other bidder or with any competitor;
ii) unless otherwise required by law, the
prices quoted in the bid have not knowingly been directly or indirectly
disclosed to any other bidder or to any competitor prior to opening;
and
iii) no attempt has been made
or will be made by the bidder to induce any other person or firm to submit or
withhold a bid for the purpose of restricting competition. Also, each bidder
shall submit a certification regarding compliance with Section 33E-11 of the
Illinois Criminal Code of 2012 [720 ILCS 5
];
B) Each person signing
the bid shall certify that:
i) the signer is
the person in the bidder's organization responsible for the decision as to the
prices being bid and that the signer has not participated, and will not
participate, in any action contrary to subsection (c)(6)(A); or
ii) the signer is not the person in the
bidder's organization responsible for the decision as to the prices being bid,
but that the signer has been authorized to act as agent certifying that the
persons determining the prices have not participated, and will not participate,
in any action contrary to subsection (c)(6)(A), and as the bidder's agent shall
so certify. The signer shall also certify that the signer has not participated,
and will not participate, in any action contrary to subsection
(c)(6)(A).
d) If the loan applicant wishes to amend any
part of the bidding documents (including drawings and specifications) during
the period when bids are being prepared, the loan applicant shall send written
addenda to all firms who have obtained bidding documents in time to be
considered prior to the bid opening. When appropriate, the time period for
submission of bids shall be extended. All addenda to the bidding documents
shall be submitted to the Agency for approval.
e) Awarding the Contract
1) After bids are opened, they shall be
evaluated by the loan applicant inaccordance with the methods and criteria set
out in the bidding documents.
2)
The loan applicant shall submit a bid evaluation to the Agency that contains
the following:
A) a copy of the newspaper ad
and the certificate of publication or equivalent;
B) the bid tabulations;
C) any addenda issued by the loan applicant,
if applicable;
D) an analysis of
the bids and recommendations for the award of the bids;
E) a copy of the loan applicant's notice of
intent to award;
F) selected
bidder's proposal and bid bond or cashier's check for not less than 5% of the
bid amount;
G) a summary of the
evidence that the selected bidder has met the disadvantaged business enterprise
requirements of 40 CFR
33;
H) a copy of the selected bidder's
certification regarding the use of American iron and steel products;
I) a copy of the selected bidder's
certification regarding the compliance with the BABA Act, as
applicable.
3) The loan
applicant may reserve the right to reject all bids if it has documented sound
business reasons. Unless all bids are rejected, award shall be made to the low,
responsive, responsible bidder after the Agency issues the loan agreement or
provides other written permission; and
4) If the award is intended to be made to a
firm that did not submit the lowest bid, prior to any award the loan applicant
shall submit to the Agency a written statement explaining why each lower bidder
was deemed not responsive or not responsible.
f) Each construction contract shall include
the following provisions:
1) Audit; Access to
Records
A) The contractor shall maintain
books, records, documents and other evidence directly pertinent to performance
on loan work in accordance with generally accepted accounting principles. The
contractor shall also maintain the financial information and data used by the
contractor in the preparation or support of any cost submissions required under
Section 662.420(b)(2)
and a copy of the cost summary submitted to the owner. The Illinois Auditor
General, the owner, the Agency, or any of their authorized representatives
shall have access to the books, records, papers, documents, and other evidence
for purposes of inspection, audit, examination, excerpts, transcriptions, and
copying. The contractor shall provide facilities for access and
inspection.
B) For a formally
advertised, competitively awarded, fixed price contract, the contractor shall
include access to records as required by subsection (a)(1)(A) for all
negotiated change orders and contract amendments in excess of $25,000 that
affect the contract price. In the case of all other prime contracts, the
contractor shall agree to include access to records required by subsection
(a)(1)(A) in all contracts and all tier subcontracts or change orders in excess
of $25,000 that are directly related to project performance.
C) Audits shall be in accordance with U.S.
generally accepted auditing standards.
D) The contractor shall agree to the
disclosure of all information and reports resulting from access to records
required by subsection (a)(1)(A). When the audit concerns the contractor, the
auditing agency shall afford the contractor an opportunity for an audit exit
conference and an opportunity to comment on the pertinent portions of the draft
audit report. The final audit report shall include the written comments, if
any, of the audited parties.
E) The
records required by subsection (a)(1)(A) shall be maintained and made available
during performance of the work under the loan agreement and for 3 years after
the date of final loan audit. In addition, records that relate to any dispute
or litigation or the settlement of claims arising out of any performance, costs
or items to which an audit exception has been taken shall be maintained and
made available for 3 years after resolution of the dispute, appeal, litigation,
claim, or exception.
F) The right
of access will generally be exercised with respect to financial records under:
i) negotiated prime contracts;
ii) negotiated change orders or contract
amendments in excess of $25,000 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.
G) The
right of access will generally not be exercised with respect to a prime
contract, subcontract, or purchase order awarded after effective price
competition. In any event, the right of access shall be exercised under any
type of contract or subcontract:
i) with
respect to records pertaining directly to contract performance, excluding any
financial records of the contractor; and
ii) if there is any indication that fraud,
gross abuse, or corrupt practices may be involved in the award or performance
of the contract or subcontract.
2) Covenant Against Contingent Fees
The contractor shall warrant that no person or selling agency
has been employed or retained to solicit or secure the 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 the contract without liability or in its discretion to
deduct from the contract price or consideration, or otherwise recover, the full
amount of the commission, percentage, brokerage, or contingent
fee.
3) Wage Provisions
The contractor shall pay prevailing wages in accordance with
the Davis-Bacon Act (40
U.S.C. 3141 through
3148) as defined by the U.S.
Department of Labor.
4)
Disadvantaged Business Enterprise Requirements
The contractor shall provide evidence that the contractor has
taken affirmative steps in accordance with
40 CFR
33 to assure that disadvantaged business
enterprises are used when possible as sources of supplies, equipment,
construction, and services, consistent with the provisions of the Agency's
Operating Agreement with USEPA.
5) Debarment and Suspension Provisions
The contract shall require the successful bidders to submit a
Certification Regarding Debarment, Suspension, and Other Responsibility Matters
(EPA Form 5700-49) showing compliance with federal Executive Order
12549.
6) Nonsegregated
Facilities Provisions
The contractor shall be required to submit a certification of
nonsegregated facilities as prescribed by
18 U.S.C.
1001.
7) American Iron and Steel
The contractor shall be required to use American iron and
steel, if required by USEPA for that fiscal year.
8) Build America Buy America
If applicable, the contractor shall be required to comply
with the requirements of the BABA Act.
9) A clause that provides:
"No contractor or subcontractor shall discriminate on the
basis of race, color, national origin or sex in the performance of this
contract. The contractor or subcontractor shall carry out applicable
requirements of 40 CFR
33 in the award and administration of
contracts awarded under the PWSLP. Failure by the contractor or subcontractor
to carry out these requirements is a material breach of this contract which may
result in the termination of this contract or other legally available
remedies."
g)
Subcontracts Under Construction Contracts
The award or execution of all subcontracts by a prime
contractor and the procurement and negotiation procedures used by the prime
contractor shall comply with:
1) all
applicable provisions of federal, State, and local law;
2) all provisions of this Part regarding
fraud and other unlawful or corrupt practices;
3) all provisions of this Part with respect
to access to facilities, records, and audit of records; and
4) all provisions of subsection (f)(5) that
require a Certification Regarding Debarment, Suspension, and Other
Responsibility Matters (EPA Form 5700-49) showing compliance with any
controlling federal Executive Orders.
h) Contractor Bankruptcy
In the event of a contractor bankruptcy, the loan recipient
shall notify the Agency and shall keep the Agency advised of any negotiations
with the bonding company, including any proposed settlement. The Agency may
participate in those negotiations and will advise the loan recipient of the
impact of any proposed settlement to the loan agreement. The loan recipient
shall be responsible for assuring that every appropriate procedure and
incidental legal requirement is observed in advertising for bids and
re-awarding a construction contract.
i) Every contract entered into by the loan
recipient for construction work, and every subagreement, shall provide Agency
representatives with access to the work. The contractor or subcontractor shall
provide facilities for the access and inspection.
