Missouri Code of State Regulations
Title 10 - DEPARTMENT OF NATURAL RESOURCES
Division 20 - Clean Water Commission
Chapter 4 - Grants and Loans
Section 10 CSR 20-4.040 - Clean Water State Revolving Fund General Assistance Regulation
Universal Citation: 10 MO Code of State Regs 20-4.040
Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This rule sets forth requirements for the implementation of Title VI of the Federal Water Pollution Control Act, as amended, which authorizes the administrator of the Environmental Protection Agency to make capitalization grants to states for financing the Clean Water State Revolving Fund Program.
PUBLISHER'S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. This material as incorporated by reference in this rule shall be maintained by the agency at its headquarters and shall be made available to the public for inspection and copying at no more than the actual cost of reproduction. This note applies only to the reference material. The entire text of the rule is printed here.
(1) Applicability. This rule defines the
minimum requirements which apply to all recipients of assistance under the
Clean Water State Revolving Fund Program. Recipients of assistance are subject
to the requirements of this regulation, unless otherwise specified. The
recipient must satisfy more stringent requirements, if required to do so by
applicable federal laws, regulations, or guidance and state or local statutes,
policies, rules, ordinances, orders, or loan documentation. The Code of Federal
Regulations referenced in the regulation are incorporated as published July 1,
2017. The regulations are incorporated by reference without any later
amendments or modifications. To obtain a copy, contact the U.S. Government
Printing Office at 732 North Capitol Street, N W, Washington D.C., 20401, toll
free at (866) 512-1800 or by visiting
(2) Definitions. The definitions of terms for 10 CSR 20-4.040-10 CSR 20-4.050 are contained in 10 CSR 20-2.010 and subsections (2)(A)-(N) of this rule.
(A) Assistance-The types of financial
assistance allowed pursuant to
33 U.S.C.
1383(d)(1)-(5).
(B) Clean Water State Revolving Fund
(CWSRF)-The financial assistance program authorized by Title VI of the Federal
Water Pollution Control Act.
(C)
Debt service-The costs associated with amortizing loans. These costs include
interest charges, penalty charges, and repayment of principal.
(D) EIERA-State Environmental Improvement
and Energy Resources Authority.
(E) Infiltration/inflow (I/I)-Groundwater or storm
water which enters a sanitary sewer system.
(F) Initiation of operation-The date when the first
major constructed component is capable of being used for its intended
purpose.
(G) Intended Use Plan-A
planning document, prepared by the Department of Natural Resources, that
identifies the intended uses of available funds.
(H) Loan-Unless stated otherwise, loan
generally refers to the agreement to lend money to an eligible recipient. The
type of agreement could be a loan agreement, bond purchase agreement, or other
debt instrument.
(I) Readiness to
proceed-The submittal, by the applicant, of a complete engineering
report/facility plan and documentation that the applicant has an acceptable
debt instrument including any necessary funding commitments from other state
and/or federal agencies. A detailed plan may be substituted for a facility plan
for requests of planning financial assistance.
(J) Recipient-The recipient of financial assistance
from programs supported or secured by the Water and Wastewater Loan Fund
(WWLF), the Water and Wastewater Loan Revolving Fund (WWLRF), CWSRF bonds
issued by EIERA, or state bond funds.
(K) Staff-Staff of the Missouri Department of Natural
Resources.
(L) Treatment
works-Refer to the definition in Section 212 of the Federal Water Pollution
Control Act.
(M) WWLF-Water and
Wastewater Loan Fund. State fund established by the state treasurer pursuant to
section
644.122,
RSMo.
(N) WWLRF-Water and
Wastewater Loan Revolving Fund. State fund under the WWLF into which repayments
are held by the state treasurer and from which new loans may be made.
(3) Project Selection Process. This section delineates the process by which the commission selects projects for receipt of CWSRF assistance.
(A) The
commission shall hold an annual competition for receipt of CWSRF assistance.
This competition will be structured as follows:
1. Applications postmarked or received by the
Water Protection Program by the calendar date established in the annual
application package will be considered for competitive placement on the annual
Intended Use Plan. The deadline will be no sooner than sixty (60) days after
the application package is made available. Applications are valid for two (2)
annual Intended Use Plan cycles. Applications received after the deadline may
be placed on a priority list as determined by the commission based on
availability of funds;
2.
Applicants that have an outstanding loan balance with the department must be in
compliance with the terms and conditions of their assistance agreements to be
eligible for additional funding;
3.
All qualified applications will be rated and placed on the appropriate list in
accordance with 10 CSR 20-4.040(29)(B);
4. The commission will select the projects
with the highest priority points, meeting readiness to proceed criteria, for
CWSRF assistance from CWSRF funds anticipated to be available during the
upcoming fiscal year; and
5. The
commission may hold a separate competition for projects seeking funding
whenever allowed by federal law and in the event supplemental funds are
provided.
(B) The
commission may direct projects toward specific financial assistance programs
contained in 10 CSR 20-4. The commission's decisions shall be based upon the
amount of financial assistance funds available, the amount of financial
assistance funds requested, the size of the project, the credit worthiness of
the applicant, and the applicant's authority to incur long-term
debt.
(4) Target Interest Rate (TIR). The TIR policy shall be established by the Missouri Clean Water Commission in consultation with the department and the EIERA based upon current economic factors, projected fund utilization, deposits in the WWLRF, and actual or anticipated federal capitalization grants, and be published in the annual Intended Use Plan. The department reserves the right to refinance, assign, pledge, or leverage any loans originated under this rule.
(A) A disadvantaged community may receive a reduction
in the TIR as determined by the commission. A disadvantaged community is
defined, for the purpose of reducing the TIR, as an applicant that-
1. Has a population of three thousand three
hundred (3,300) or less based on the most recent decennial census;
2. Has a median household income at or below
seventy-five percent (75%) of the state average median household income as
determined by the most recent decennial census or by an income survey overseen
by a state or federal agency; and
3. Has an average wastewater user charge for
five thousand (5,000) gallons that is at least two percent (2%) of the median
household income of the applicant, determined by the decennial census or income
survey listed in (4)(A)2.
(B) Additional Subsidization. Additional
subsidization (such as principal forgiveness, negative interest loans, grants,
or the like) may be provided as the Federal Water Pollution Control Act as
amended, or any subsequent federal act, requires or allows.
(C) In accordance with section 603(d)(1)(A)
of the Federal Water Pollution Control Act, the term of the assistance
agreement shall be established per the provisions in
10 CSR
20-4.041(8)(A).
(5) Loan Fees. The department may charge annual loan administrative fees not to exceed one-half percent (0.5%) of the outstanding loan balance of each loan for loan origination, loan servicing and administration of the program. Other loan expenses including, but not limited to, cost of issuance, debt service reserve and expenses charged by the paying agent will be paid by the recipient.
(6) Additional Administrative Fees Allowed. Additional administrative fees may be assessed by the department at the time the administration fee is calculated for failure by a recipient to pay debt service on the loan or submit approved documents to the department (for example, operation and maintenance manuals, enacted user charge and sewer use ordinances, executed contract documents) in accordance with the time frames provided under the program agreement entered into by the recipient. The additional fee will be an additional one-tenth percent (0.1%) per month that the recipient remains delinquent. The additional fee for delinquent documents will be collected only during the year in which the document is not submitted.
(7) General CWSRF Assistance Requirements. The commission will prioritize potential CWSRF projects by assigning priority points in accordance with the CWSRF Priority Point Criteria established per subsection (29)(A) of this rule.
(A) Municipalities, counties, public sewer or
water districts, or both, political subdivisions or instrumentalities of the
state, and combinations of the same, or any entity eligible pursuant to the
Federal Water Pollution Control Act as amended, are eligible for CWSRF
assistance. The recipient must demonstrate its legal, institutional,
managerial, and financial capability to ensure adequate operation and
maintenance of the wastewater treatment works throughout the recipient's
jurisdiction.
(B) Financial
Disclosure. Applicants shall provide upon request to the department and the
EIERA any detailed financial information as may be required by the commission,
the department, the EIERA, or its financial or legal consultants to determine
the applicant's eligibility for the financial assistance.
(C) For equivalency projects, the recipient and its
contractors must comply with all requirements associated with funds provided
under 40 CFR 35.3145.
(D) If the
department determines that an applicant is in significant noncompliance with a
valid National Pollutant Discharge Elimination System (NPDES) permit or
Missouri State Operating Permit, the Federal Water Pollution Control Act as
amended, the Missouri Clean Water Law as amended, or implementing regulations,
then the department may refuse to provide financial assistance to such
applicant, or require the applicant to reach a binding agreement regarding
corrective actions the applicant will take to address such
noncompliance.
(E) All recipients
are encouraged to retain the services of a financial advisor who is registered
with the U.S. Securities Exchange Commission.
(F) American Iron and Steel. Recipients will
need to keep supporting documentation to show that iron and steel products used
comply with the requirements of
33
U.S.C. 1388 and subsection (17)(N) of this
rule unless a waiver has been received.
(8) Application Requirements. Applicants must submit a completed application form including the information listed in subsections (8)(A)-(C) to be included on the Intended Use Plan. Potential applicants are strongly encouraged to meet with department staff prior to submitting an application.
(A) A project
summary which includes:
1. The need for the
project;
2. The project components,
including maps or drawings showing the project location and layout;
and
3. A cost estimate including a
cost breakdown.
(B) The
most recent financial statement; and
(C) Proposed project schedule.
(9) Facility Planning. All facility plans must be in accordance with 10 CSR 20-8.110.
(A)
Requirements for all projects are as follows:
1. The most reasonable environmentally sound
and implementable waste management alternatives must be studied and evaluated.
Proposed waste treatment management plans and practices shall provide for the
most cost effective technology that can treat waste-water and I/I to meet the
current 10
CSR 20-7.015 Effluent Regulations, and
10 CSR
20-7.031 Water Quality Standards;
2. An estimate of the average user charge
including documentation for the basis of the estimate; and
3. An assessment of the environmental
conditions and impact of the proposed project on the environment is required.
The environmental review process and associated public notice requirements are
contained in 10 CSR 20-4.050. Additional
public participation requirements are outlined in subsections (14)(A) and
(B).
(B) Recipients
meeting the definition of municipality or inter-municipal, interstate or state
agency shall provide a certification with the facility plan that it complies
with cost and effectiveness requirements found in Section 602(b)(13) of the
Federal Water Pollution Control Act.
(10) Additional Preclosing Requirements.
(A) Submittal Deadline. All documents
necessary to provide assistance must be submitted to the department in
sufficient time, as agreed upon in the project schedule, to allow adequate time
for review and approval prior to the loan closing date established by the
department.
(B) Final Document
Submittal. Documents listed in paragraphs (10)(B)1.-9. must be submitted and
accepted by the department:
1. Resolution
identifying the authorized representative by name. Applicants shall provide a
resolution by the governing body designating a representative authorized to
file the application for assistance, reimbursement requests, and act in behalf
of the applicant in all matters related to the project;
2. Plans and specifications certified by a
registered professional engineer licensed in Missouri;
3. If engineering services are to be
reimbursed, an engineering contract as described in section (12) and the
appropriate procurement documentation as described in section (13);
4. If applicable, the design-build contract
per section (26) and the appropriate procurement documentation;
5. Adopted user charge ordinance as
described in section (16);
6.
Enacted sewer use ordinance as described in section (16);
7. Proposed project schedule. The following represents
the minimum requirements for the project schedule:
A. Construction start defined as date of
issuance of notice to proceed;
B.
Construction completion;
C.
Initiation of operation; and
D.
Project completion;
8.
Certification of easements and real property acquisition. Recipients of
assistance under the CWSRF shall have obtained title or option to the property
or easements or condemnation proceedings initiated for the project prior to
award of financial assistance; and
9. Other information or documentation deemed necessary
by the department to ensure the proper expenditure of state
funds.
(11) Accounting and Audits. Recipients are required to have a dedicated source for repayment of any loans and an adequate financial management system and audit procedure for the project which provides efficient and effective accountability and control of all property, funds, and assets related to the project. The recipient's financial system is subject to state or federal audits to assure fiscal integrity of public funds.
(A) Each
recipient is expected to have an adequate accounting system for the project
which provides efficient and effective accountability and control of all
property, funds, and assets.
1. The recipient
is responsible for maintaining a financial management system which will
adequately provide for an accurate, current, and complete disclosure of the
financial results of each loan project. The proprietary fund (business-related
fund) accounting will be in accordance with generally accepted government
accounting principles and practices, regardless of the source of
funds.
2. An acceptable accounting
system includes books and records showing all financial transactions related to
the construction project. The system must document all receipt and disbursement
transactions, and group them by type of account (for example, asset, revenue,
expense, etc.) and by individual expense account (for example, personnel
salaries and wages, subcontract costs, etc.).
3. The recipient shall maintain books, records,
documents, and other evidence and accounting procedures and practices,
sufficient to reflect properly the amount, receipt, and disposition by the
recipient for all assistance received for the project and the total costs of
the project of whatever nature incurred for the performance of the project for
which the assistance was awarded.
(B) Annual Audited Financial Statements.
1. The recipient shall cause an audit of the
recipient's annual financial report for the preceding fiscal year to be made by
a certified public accountant or firm of certified public accountants employed
for that purpose.
A. The annual audit will
cover in reasonable detail the operation of the proprietary system during the
fiscal year.
B. Within one hundred
eighty (180) days after the end of the recipient's fiscal year, a copy of the
annual financial report will be submitted to the department as long as the
recipient is in loan repayment status. A recipient who cannot meet this
deadline will notify the department in writing of the delay with the expected
date of completion.
2.
As required by federal law, a recipient must comply with the provisions of
OMB's Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards, as amended, governing the audit of state and
local governments. When applicable, a copy of this audit, including all written
comments and recommendations of the accountant, will be furnished to the
department within the time period as provided in OMB's Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards.
(12) Architectural or Engineering Contracts. The following represents the minimum requirements for the architectural or engineering contracts:
(A) General Requirements for Contracts.
1. Be necessary for and directly related to
the accomplishment of the project work.
2. Be a lump sum or cost plus fixed fee
contract in the form of a bilaterally executed written agreement.
3. Be for monetary consideration.
4. Not be in the nature of a grant or
gift.
5. State a time frame for
performance.
6. State a cost which
cannot be exceeded except by amendment.
7. State provisions for payment;
and
(B) The nature,
scope, and extent of work to be performed during construction should include,
but not be limited to, the following:
1.
Preparing an operation and maintenance manual if required by the department and
as defined in subsection (22)(A);
2. Assisting the recipient in bid
letting;
3. Assisting the recipient
in reviewing and analyzing construction bids and making recommendations for
award; and
4. Inspecting during
construction to ensure conformance with the construction contract documents
unless waived by the department.
(C) Executed Engineering Contract Submittal.
The final approved executed engineering contract must be submitted prior to the
first reimbursement request.
(13) Procurement of Engineering Services. The procurement of engineering services shall be in accordance with sections 8.285 through 8.291, RSMo, unless such engineering services are performed as part of a design-build contract pursuant to section (26).
(14) Public Participation. Public participation must be preceded by timely distribution of information and occur sufficiently in advance of decision making to allow the recipient to assimilate public views into action. Public participation shall include the following:
(A) Prior to approval of the draft user
charge ordinance, a public hearing, in accordance with section
250.233,
RSMo, shall be conducted to specifically address the proposed user charge
rates.
(B) Public notice of the
hearing shall be published at least thirty (30) days prior to the meeting date.
Public hearing notices shall include the date, time and place of the hearing.
The notice may be for multiple hearings and should include a separate starting
time for each hearing. The recipient shall prepare a transcript, recording, or
other complete record of the proceeding and submit it to the department and
make it available at no more than cost to anyone who requests it. A copy of the
record should be available for public review; and
(C) Public participation requirements for
environmental review are contained in
10 CSR
20-4.050(4)(B) 2.
(15) Intermunicipal Agreements. Prior to closing, if the project serves two (2) or more public entities, the applicant shall submit executed agreements or contracts between the public entities for the financing, construction and operation of the proposed treatment facilities. At a minimum, the agreement or contract will include:
(A) The operation and maintenance
responsibilities of each party upon which the costs are allocated;
(B) The formula by which the costs are
allocated;
(C) The manner in which
the costs are allocated;
(D) The
term of the agreement, which shall be, at a minimum, for the term of the
loan;
(E) The method for resolution
or arbitration of disputes;
(F) The
procedure for amending or renegotiating the agreement;
(G) The enforcement authority; and
(H) The effective date of the
agreement.
(16) User Charge and Sewer Use Ordinance. Recipients are required to maintain, for the useful life of the treatment works, user charge and sewer use ordinances approved by the department. User charge and sewer use ordinances, at a minimum, shall be adopted prior to financing and implemented by the initiation of operation of the financed wastewater treatment works.
(A) The user charge system must be designed
to produce adequate revenues required for the operation and maintenance,
including a reserve for equipment replacement. A one hundred ten percent (110%)
debt service reserve may be required. The sewer user rate for operation and
maintenance, including replacement, shall be proportional and based upon actual
use. Each user charge system must include an adequate financial management
system that will accurately account for revenues generated by the system, debt
service, and loan fee costs and expenditures for operation and maintenance,
including replacement based on an adequate budget identifying the basis for
determining the annual operation and maintenance costs and the costs of
personnel, material, energy, and administration. The user charge system shall
provide that the costs of operation and maintenance for all flow not directly
attributable to users be distributed equally among the users. The system shall
provide for an annual review of charges. A user charge system shall be adopted
by all municipalities (as defined in
40
CFR 35.2005(b)(27) receiving
waste treatment services if required by federal law.
(B) Low Income Residential User Rates.
1. Recipients may establish lower user charge
rates for low income residential users after providing for public notice and
hearing, in accordance with section
250.233,
RSMo. The criteria used to determine a low income residential user must be
clearly defined.
2. The costs of
any user charge reductions afforded a low income residential class must be
proportionately absorbed by all other user classes. The total revenue for
operation and maintenance (including equipment replacement) of the facilities,
and debt retirement must not be reduced as a result of establishing a low
income residential user class.
(C) The sewer use ordinance shall prohibit
any new connections from inflow sources into the treatment works and require
that new sewers and connections to the treatment works are properly designed
and constructed. The ordinance also shall require that all wastewater
introduced into the treatment works not contain toxic or other pollutants in
amounts or concentrations that endanger public safety and physical integrity of
the treatment works; cause violation of effluent or water quality limitations;
preclude the selection of the most cost-effective alternative for wastewater
treatment and sludge disposal; or inhibit the performance of a pretreatment
facility. The ordinance shall require all users to connect to the system within
ninety (90) days of service availability.
(17) Specifications. The construction specifications must contain the features listed in the following:
(A) Recipients must incorporate in their
specifications a clear and accurate description of the technical requirements
for the material, product, or service to be procured. The description, in
competitive procurements, shall not contain features which unduly restrict
competition unless the features are necessary to test or demonstrate a specific
thing or to provide for interchangeability of parts and equipment. The
description shall include a statement of the qualitative nature of the
material, product, or service to be procured and, when necessary, shall set
forth those minimum essential characteristics and standards to which it must
conform if it is to satisfy its intended use;
(B) The recipient shall avoid the use of
detailed product specifications if at all possible;
(C) When in the judgment of the recipient it
is impractical or uneconomical to make a clear and accurate description of the
technical requirements, recipients may use a "brand name or equivalent"
description as a means to define the performance or other salient requirements
of an item to be procured. The recipient need not establish the existence of
any source other than the named brand. Recipients must state clearly in the
specification the salient requirements of the named brand to be met by offerers
and that other brands may be accepted;
(D) Sole Source Restriction. A specification
shall not require the use of structures, materials, equipment, or processes
which are known to be available only from a sole source, unless the department
determines that the recipient's engineer has adequately justified in writing to
the department that the proposed use meets the particular project's minimum
needs;
(E) Experience Clause
Restriction. The general use of experience clauses is restricted to special
cases.
1. The general use of experience
clauses requiring equipment manufacturers to have a record of satisfactory
operation for a specified period of time or of bonds or deposits to guarantee
replacement in the event of failure is restricted to special cases where the
recipient's engineer adequately justifies any such requirement in writing.
Where this justification has been made, submission of a bond or deposit shall
be permitted instead of a specified experience period. The period of time for
which the bond or deposit is required shall not exceed the experience period
specified.
2. The general use of
experience clauses requiring contractors to have a record of satisfactory
experience for a specified period of time or the completion of a specified
number of similar projects is restricted to special cases where the recipient's
engineer adequately justifies any such requirement in writing. Such
justification shall not unduly restrict competition or result in excessive
bonding requirements. Where this justification has been made, submission of a
bond or deposit shall be permitted instead of the specified experience. The
period of time for which the bond or deposit is required shall not exceed the
experience period specified;
(F) Domestic Products Procurement Law. In
accordance with sections 34.350-34.359, RSMo, the bid documents shall require
all manufactured goods or commodities used or supplied in the performance of
any contract or subcontract awarded on a loan project to be manufactured,
assembled, or produced in the United States, unless obtaining American- made
products would increase the cost of the contract by more than ten percent
(10%);
(G) Bonding. On construction
contracts exceeding fifty thousand dollars ($50,000), the bid documents shall
require each bidder to furnish a bid guarantee equivalent to five percent (5%)
of the bid price. In addition, the bid documents must require the successful
bidder to furnish performance and payment bonds, each of which shall be in an
amount not less than one hundred percent (100%) of the contract
price;
(H) State Wage
Determination. The bid documents shall contain the current prevailing wage
determination issued by the Missouri Department of Labor and Industrial
Relations, Division of Labor Standards as established by sections 290.210 to
290.340, RSMo;
(I) Davis-Bacon Wage
Requirements. Construction of treatment of works must comply with the
Davis-Bacon requirements in accordance with
29 CFR
5.5. The current Davis-Bacon wage rate from
the United States Department of Labor must be incorporated in the bid
documents;
(J) Small, Minority,
Women's, and Labor Surplus Area Businesses. The recipient shall comply with
2
CFR 200.321 and 40 CFR part 33;
(K) Debarment/Suspension. The recipient
agrees to follow 2 CFR part 180 subpart C and
2 CFR
200.213. The recipient acknowledges that
doing business with any party listed on the List of Debarred, Suspended or
Voluntarily Excluded Persons may result in disallowance of project costs under
the assistance agreement;
(L) Right
of entry to the project site must be provided for representatives of the
Missouri Department of Natural Resources, Clean Water Commission, and the EIERA
so they may have access to the work wherever it is in preparation or progress.
Proper facilities must be provided for access and inspections;
(M) The specifications must include the
following statement: "The owner shall make payment to the contractor in
accordance with section
34.057,
RSMo."; and
(N) American Iron and
Steel. Specifications shall adhere to requirements under
33
U.S.C. 1388 for projects involving the
construction, alteration, maintenance, or repair of a treatment
works.
(18) Construction Equipment and Supplies Procurement. This section describes the minimum procurement requirements which the recipient must use under the CWSRF program. The recipient must conduct procurements in a manner that prohibits the use of statutorily or administratively imposed state or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference.
(A) Small Purchases. A small purchase is the
procurement of materials, supplies, and services when the aggregate amount
involved in any one (1) transaction does not exceed one hundred fifty thousand
dollars ($150,000). The small purchase limitation of one hundred fifty thousand
dollars ($150,000) applies to the aggregate total of an order, including all
estimated handling and freight charges, overhead, and profit to be paid under
the order. In arriving at the aggregate amount involved in any one (1)
transaction, all items which should properly be grouped together must be
included. Department concurrence and a minimum of three (3) quotes must be
obtained prior to purchase.
(B)
Bidding Requirements. This subsection applies to procurement of construction
equipment, supplies, and construction services in excess of one hundred fifty
thousand dollars ($150,000) awarded by the recipient for any project. No
contract shall be awarded until the department has approved the formal
advertising and bidding.
1. Formal
advertising.
A. Adequate public notice. The
recipient will cause adequate notice to be given of the solicitation by
publication in newspapers of general circulation beyond the recipient's
locality (preferably statewide), construction trade journals, or plan rooms,
inviting bids on the project work and stating the method by which bidding
documents may be obtained or examined.
B. Adequate time for preparing bids. A
minimum of thirty (30) days shall be allowed between the date when public
notice, publication, insertion, or document available in a plan room is first
published or provided and the date by which bids must be submitted. Bidding
documents shall be available to prospective bidders from the date when the
notice is first published or provided. Recipients are encouraged to directly
solicit bids from prospective bidders.
2. Bid document requirements and procedure.
The recipient shall prepare a reasonable number of bidding documents
(invitations for bids) and shall furnish them upon request on a first-come,
first-served basis. The recipient shall maintain a complete set of bidding
documents and shall make them available for inspection and copying by any
party. The bidding documents shall include, at a minimum:
A. A complete statement of the work to be
performed or equipment to be supplied and the required completion
schedule;
B. The terms and
conditions of the contract to be awarded;
C. A clear explanation of the method of
bidding and the method of evaluation of bid prices and the basis and method for
award of the contract or rejection of all bids;
D. Responsibility requirements and criteria
which will be employed in evaluating bidders;
E. The recipient shall provide for bidding by
sealed bid and for the safeguarding of bids received until public
opening;
F. If a recipient desires
to amend any part of the bidding documents during the period when bids are
being prepared, addenda shall be communicated in writing to all firms which
have obtained bidding documents in time to be considered before the bid opening
time. All addenda must be approved by the department prior to award of the
contract;
G. A firm which has
submitted a bid shall be allowed to modify or withdraw its bid before the time
of bid opening;
H. The recipient
shall provide for a public opening of bids at the place, date, and time
announced in the bidding documents. Bids received after the announced opening
time shall be returned unopened;
I.
The recipient may reserve the right to reject all bids. Unless all bids are
rejected for good cause, award shall be to the lowest, responsive, responsible
bidder.
(I) After bids are opened, the
recipient shall evaluate them in accordance with the methods and criteria set
forth in the bidding documents.
(II) The recipient shall award contracts only
to responsible contractors that possess the potential ability to perform
successfully under the terms and conditions of a proposed contract. A
responsible contractor is one that has financial resources, technical
qualifications, experience, organization, and facilities adequate to carry out
the contract or a demonstrated ability to obtain these. The recipient shall
have established protest provisions in the specifications. These provisions
shall not include the department as a participant in the protest
procedures.
(III) If the recipient
intends to make the award to a firm which did not submit the lowest bid, the
recipient shall prepare a written statement before any award, explaining why
each lower bidder was deemed non-responsible or nonresponsive and shall retain
the statements in its files.
(IV)
The recipient shall not reject a bid as nonresponsive for failure to list or
otherwise indicate the selection of subcontractor(s) or equipment unless the
recipient has clearly stated in the solicitation documents that the failure to
list shall render a bid non-responsive and cause rejection of a bid; and
J. Departmental
concurrence with contract award must be obtained prior to actual contract
award. Recipients shall notify the department in writing of each proposed
construction contract which has an aggregate value over the one hundred fifty
thousand dollars ($150,000). The recipient shall notify the department within
ten (10) calendar days after the bid opening for each construction sub
agreement. The notice shall include:
(I)
Proof of advertising;
(II)
Tabulation of bids;
(III) The bid
proposal from the bidder that the recipient wishes to accept, including
justification if the recommended successful bidder is not also the lowest
bidder;
(IV) Recommendation of
award;
(V) Any addenda not
submitted previously and bidder acknowledgment of all addenda;
(VI) Copy of the bid bond or bid
guarantee;
(VII) One (1) set of
as-bid specifications;
(VIII)
Suspension/Debarment Certification;
(IX) Certification that the recipient has the
necessary funds to complete the project if bids exceed available CWSRF
funding;
(X) MBE/WBE
Worksheet;
(XI) Recipient's
statement that proposed contractor(s) positive efforts, MBE/WBE utilization, or
both, have been reviewed and meet regulatory requirements;
(XII) Site certification, if not previously
submitted; and
(XIII) Certification
of Non-segregated Facilities.
(19) Changes in Contract Price or Time. The contract price or time may be changed only by a change order. The value of any work covered by a change order or of any claim for increase or decrease in the contract price shall be determined by the methods set forth in the following:
(A) Unit Prices.
1. Original bid items. Unit prices previously
approved are acceptable for pricing changes of original bid items. However,
when changes in quantities exceed fifteen percent (15%) of the original bid
quantity and the total dollar change of that bid item is greater than
twenty-five thousand dollars ($25,000), the recipient shall review the unit
price to determine if a new unit price should be negotiated.
2. New items. Unit prices of new items shall
be negotiated;
(B) A lump
sum to be negotiated; and
(C) Cost
Reimbursement. The actual cost for labor, direct overhead, materials, supplies,
equipment, and other services necessary to complete the work plus an amount to
cover the cost of general overhead and profit.
(20) Progress Payments to Contractors.
(A) It is the commission's policy that
recipients should make prompt progress payments to prime contractors and prime
contractors should make prompt progress payments to subcontractors and
suppliers for eligible construction, supplies, and equipment costs.
1. For purposes of this section, progress
payments are defined as follows:
A. Payments
for work in place; and
B. Payments
for materials or equipment which have been delivered to the construction site
or which are stockpiled in the vicinity of the construction site in accordance
with the terms of the contract, when conditional or final acceptance is made by
or for the recipient. The recipient shall assure that items for which progress
payments have been made are adequately insured and are protected through
appropriate security measures.
(B) Appropriate provisions regarding progress
payments must be included in each contract and subcontract.
(C) Retention from Progress Payments. The
recipient may retain a portion of the amount otherwise due the contractor. The
amount the recipient retains shall be in accordance with section
34.057,
RSMo.
(21) Classification of Costs. The information in this section repre- sents policies and procedures for determining the eligibility of project costs for assistance under programs supported by this regulation and 40 CFR part 35 subpart I, including Appendix A.
(A) General. All
project costs will be eligible if they meet the following tests:
1. Reasonable and cost effective;
2. Necessary for the construction of an
operable wastewater facility and other projects, as defined in the Federal
Water Pollution Control Act as amended, including required mitigation;
and
3. Meet the eligibility
limitations of the Federal Water Pollution Control Act as
amended.
(B) Eligible
Costs. Eligible costs include, at a minimum:
1. Engineering services and other services
incurred in planning and in preparing the design drawings and specifications
for the project. For invoice reimbursement, the department must have a copy of
the executed engineering contract for planning and design of the
project;
2. The cost incurred
pursuant to a contract for building those portions of the project which are for
treatment of wastewater, correction of I/I, or for new interceptor sewers.
These costs include change orders within the allowable scope of the project and
the costs of meritorious contractor claims for increased costs under sub
agreements;
3. The reasonable cost
of engineering services incurred during the building and initial operation
phase of the project to ensure that it is built in conformance with the design
drawings and specifications. A registered professional engineer licensed in
Missouri or a person under the direction and continuing supervision of a
registered professional engineer licensed in Missouri must provide inspection
of construction for the purpose of assuring and certifying compliance with the
approved plans and specifications. Eligible construction phase and initial
operation phase service are limited to
A.
Office engineering;
B. Construction
surveillance;
C. Stakeout
surveying;
D. As-built
drawings;
E. Special
soils/materials testing;
F.
Operation and maintenance manual;
G. Follow-up services and the cost of
start-up training for operators of mechanical facilities constructed by the
project to the extent that these costs are incurred prior to this department's
final inspection. Costs shall be limited to on-site operator training tailored
to the facilities constructed or on- or off-site training may be provided by
the equipment manufacturer if this training is properly procured;
H. User charge and sewer use ordinance;
and
I. Plan of operation;
4. Demolition costs. The
reasonable and necessary cost of demolishing publicly owned WWTF's which are no
longer utilized for wastewater collection, transportation, or treatment
purposes. The reasonable and necessary cost of demolishing privately-owned
WWTF's which will be eliminated or replaced by a publicly-owned treatment works
if the proposed elimination was addressed in the approved facility plan.
Generally, these costs will be limited to the demolition and disposal of the
structures, removal and disposal of biosolids, final grading, and seeding of
the site;
5. Equipment, materials,
and supplies.
A. The cost of a reasonable
inventory of laboratory chemicals and supplies necessary to initiate plant
operations and laboratory items necessary to conduct tests required for plant
operation.
B. Cost of shop
equipment installed at the treatment works necessary to the operation of the
works.
C. The costs of necessary
safety equipment, provided the equipment meets applicable federal, state,
local, or industry safety requirements.
D. The costs of mobile equipment necessary
for the operation of the overall wastewater treatment facility, transmission of
waste-water or sludge, or for the maintenance of equipment. These items
include:
(I) Portable standby
generators;
(II) Large portable
emergency pumps to provide pump-around capability in the event of pump station
failure or pipeline breaks; and
(III) Trailers and other vehicles having as
their purpose the transportation, application, or both, of liquid or dewatered
sludge or septage;
E.
The cost of a reasonable inventory of replacement parts identified and approved
in advance for new wastewater treatment facilities;
6. Land or easements required to complete
the project. In order to be eligible for reimbursement, land must be purchased
in accordance with the Uniform Relocation and Real Property Acquisition
Policies Act of 1970, P.L. 91-646, as amended. Certification by the recipient
of compliance under this Act is required;
7. The cost of I/I correction, other than normal
maintenance costs, and treatment works capacity adequate to transport and treat
I/I;
8. Purchase of a private
wastewater system, provided the project will eliminate or upgrade the existing
facilities. The purchase of a private wastewater system must be purchased in
accordance with the Uniform Relocation and Real Property Acquisition Policies
Act of 1970, P.L. 91-646, as amended. Certification by the recipient of
compliance under this Act is required;
9. The cost of preparing environmental documentation
required under 10 CSR 20-4.050;
10. Nonpoint source projects as identified
in the most current Missouri Nonpoint Source Management Plan;
11. Construction permit application fees,
costs of issuance, capitalized interest, and contracted project administration
costs;
12. Debt service reserve
deposits;
13. Collector sewers
provided that they meet the requirements of either-
A. For major rehabilitation or replacement of
collection sewers that are needed to assure the total integrity of the system;
or
B. New collector sewers for
existing communities where sufficient treatment capacity exists or adequate
treatment will be available when collectors are completed;
14. Correction of combined sewer
overflows;
15. House laterals if
they lie within the public easement and will be maintained by the
recipient;
16. Storm water
transport and treatment systems, and non-point source best management
practices;
17. Third party costs,
incurred under a contract, associated with preparing a fiscal sustainability
plan;
18. Energy conservation
projects that reduce energy consumption including energy efficient equipment
and certain renewable energy facilities;
19. Water conservation projects that reduce
demand for publicly-owned water treatment works including water meters, water
efficient appliances, education programs, and incentive programs; and
20. Planning and assessments activities
including asset management plans, capital improvement plans, integrated
planning, long term control plans, water or energy audits, treatment works
security and safety plans, or environmental management
systems.
(C) Non-eligible
costs include, but are not limited to:
1.
Costs for the purposes in paragraphs (21)(B)6. and (21)(B)8. that are in excess
of just compensation based on the appraised value or amount determined in
condemnation;
2. Ordinary
operating expenses of the recipient including salaries and expenses of elected
and appointed officials, preparation of routine financial reports and studies,
EIERA application fees, and the state operating permit fees or other such
permit fees necessary for the normal operation of the constructed
facility;
3. Preparation of
applications and permits required by federal, state, or local regulations or
procedures;
4. Administrative,
engineering, and legal activities associated with the establishment of special
departments, agencies, commissions, regions, districts, or other units of
government;
5. Personal injury
compensation or damages arising out of the project;
6. Fines and penalties due to violations of, or
failure to comply with, federal, state, or local laws, regulations, or
procedures;
7. Costs outside the
scope of the approved project;
8.
Costs for which grant or loan payments have been or will be received from
another state or federal agency; and
9. Force account work.
(22) Operation and Maintenance.
(A) Operation and Maintenance Manual. The
recipient must make provision satisfactory to the department for assuring
effective operation and maintenance of the constructed project throughout its
design life. If required by the department, recipients of assistance for
construction of mechanical facilities must develop an operation and maintenance
manual. The operation and maintenance manual, if required, must be submitted by
eighty percent (80%) construction completion.
(B) Start-Up Training. At fifty percent (50%)
construction completion, a start-up training proposal (if required) and
proposed follow-up services contract must be submitted. This contract must be
approved by ninety percent (90%) construction completion.
(C) Wastewater Operator. The recipient must
make provision satisfactory to the department for assuring that qualified
wastewater operator and maintenance personnel are hired in accordance with an
approved schedule. Qualified personnel shall be those meeting the requirements
established under 10 CSR
20-9.020.
(23) Retention of Records.
The recipient must retain all records according to the retention schedules established by chapter 109, RSMo. A longer retention period may be required under the loan documentation.
(24) Conflict of Interest. No employee, officer, or agent of the recipient shall participate in the selection, award, or administration of a sub agreement supported by state or federal funds if a conflict of interest, real or apparent, would be involved.
(A) This conflict would arise when-
1. Any employee, officer, or agent of the
recipient, any member of their immediate families or their partners have a
financial or other interest in the firm selected for a contract; or
2. An organization which may receive or has
been awarded a sub agreement employs, or is about to employ, any person under
paragraph (24)(A)1.
(B)
The recipient's officers, employees, or agents shall neither solicit nor accept
gratuities, favors, or anything of substantial monetary value from contractors,
potential contractors, or other parties to sub agreements.
(25) Disposition of Treatment Works. The recipient must receive the written consent of the department prior to the disposal of the wastewater treatment works or any material part thereof financed or refinanced with the proceeds of a loan.
(A) If at any time during the term of the
loan a recipient desires to sell, lease, mortgage, or otherwise dispose of the
waste-water treatment works or any part thereof, the recipient shall abide by
the provisions for disposal as contained in the recipient's loan documentation
between the recipient and the department. Disposition of treatment works to
entities not listed in subsection (7)(A) of this rule will require immediate
repayment of assistance.
(B) During
the loan repayment term, ownership of facilities, equipment, and real property
purchased under the program with a current value in excess of five thousand
dollars ($5,000) may be transferred only with written permission of the
department.
(C) If at any time
after initiation of operations of the project, the wastewater treatment works
funded with a CWSRF grant, or any part thereof, is sold, either outright or on
contract for deed, to other than a political subdivision of the state, the
state shall receive reimbursement of the grant funds. The total amount of grant
funds to be reimbursed shall be based on a straightline depreciation based on
the original costs of the facilities being sold, the original loan repayment
period or a 20-year straight-line depreciation schedule in the event of grant
only funds, and adjusted for the percentage of grant funds originally disbursed
to fund such facilities. Grant funds to be reimbursed shall become due and
payable upon transfer of ownership.
(26) Procurement of Design-Build Services. The procurement of design-build services shall be in accordance with section 67.5060, RSMo. Recipients that are exempt from section 67.5060, RSMo may also utilize design-build services if local ordinances or policies allow design-build and the procurement of the design-build team considers both the qualifications of the team and the project selected meets the cost effectiveness requirements of subsection (10)(B). Recipients seeking funds for a project utilizing design-build services must notify the department with the recipient's CWSRF application. Recipients that utilize design-build services shall coordinate procurement activities with the department to ensure compliance with CWSRF requirements. The department may restrict the amount of funding available for projects using design-build services, if needed to comply with federal law and regulations.
(27) Plan of Study. Facility planning loans, not to exceed a five (5) year repayment term, or grants may be provided by the commission to applicants with an existing publicly owned wastewater system. Applicants that desire to receive a loan for facility planning must submit a plan of study. The plan of study should include the following information (generally in fifteen (15) pages or less):
(A)
Maps of the planning area showing boundaries, political jurisdictions, river
basins and surface water bodies, and service areas of existing wastewater
treatment facilities; NPDES permits; the existing population; a brief
description of existing wastewater facilities; and the communities and major
industries served;
(B) The agencies
and jurisdictions involved in the planning. Include any joint resolutions or
agreements among jurisdictions that designate a lead agency or official to
serve as applicant;
(C) The nature
and scope of planning, including a description of the need for the project, and
facilities planning tasks and schedule; and
(D) The nature and scope of planning,
including a description of the need for the project, and facilities planning
tasks and schedule; and.
(28) Fiscal Sustainability Plan. A fiscal sustainability plan as established in section 603(d)(1)(E) of the Federal Water Pollution Control Act, shall be prepared by the recipient receiving a loan for a treatment works repair, replacement, or expansion. For purposes of this paragraph "loan" does not include an agreement where the department is purchasing an obligation (e.g. municipal bonds) from the recipient.
(29) Intended Use Plan
(A) The priority point criteria will be
published in draft form annually and be adopted by the commission after a
public comment period has been conducted. The adopted priority point criteria
will be published on the department's website.
(B) Priority Lists. Each year, following a
public hearing, the commission shall establish priority lists for using future
anticipated state and federal funding allocations. These lists shall contain at
a minimum several parts, as described in subsections (B)1. through (B)4. of
this rule. These lists shall become effective annually with the adoption of the
Intended Use Plan. However, the commission may bypass projects on these lists
for failure to proceed to grant award or loan closing in an expeditious manner.
1. Fundable List. The commission may
establish one or more fundable priority lists which identify those projects
which meet the readiness to proceed criteria. The commission may specify fund
allocations across multiple fundable priority lists in order to distribute
available funds statewide and meet CWSRF program goals. Projects will be listed
in priority point order within each fundable list.
2. Fundable Contingency Priority List. The
fundable contingency priority list identifies those projects meeting the
readiness to proceed criteria, however, there are insufficient available funds.
Projects will be listed in priority point order regardless of the date which
the readiness to proceed criteria are met.
3. Contingency Priority List. The contingency
priority list identifies those projects which may be considered for funding
during a given fiscal year if the applicant secures an acceptable debt
instrument. Projects will not be considered for the contingency priority list
unless a complete facility plan has been submitted for review.
4. Planning List. The planning list
identifies all potentially eligible grant or loan projects not contained on a
fundable or contingency priority list. Planning list projects may advance to
the contingency or fundable lists, with commission approval, upon meeting the
readiness to proceed criteria.
(C) Modifications. After the commission
adopts the Intended Use Plan, it may modify the priority lists or redistribute
the available funds in accordance with subsections (C)1. through (C)4. of this
rule. The commission may only take this action after providing notice to those
projects directly affected.
1. Inadequate
Allocations. If the actual funding is less than the allocations anticipated by
the commission in the development of the Intended Use Plan, or if previous
allocations are reduced, the commission may find it necessary to reduce their
commitments to projects on the fundable lists. The commission may take formal
action to reduce the number of commitments in accordance with paragraphs
(C)1.A. through (C)1.C. of this rule.
A. The
commission may reduce the amount of funds allocated to each purpose as shown in
the Intended Use Plan.
B. The
commission may remove the lowest priority projects from the fundable priority
lists, placing these projects on the appropriate contingency priority list in a
position dictated by their priority relative to others on that contingency
priority list.
C. The commission
may bypass projects on the fundable priority lists in accordance with
subsection (C)3. of this rule.
2. Unanticipated and Uncommitted Funds. If
unanticipated or uncommitted funds become available, the commission may take
formal action to distribute them in accordance with paragraphs (C)2.A. through
(C)2.C. of this rule.
A. The commission may
use the unanticipated or uncommitted funds to move the highest priority
project(s) from contingency priority list to the proper fundable priority
list.
B. The commission may use the
unanticipated or uncommitted funds to increase the amount of funds allocated to
the various purposes as shown in the Intended Use Plan.
C. The commission may use the unanticipated
or uncommitted funds to increase the amount of funds allocated to projects on
the fundable priority list or to provide increased assistance to projects which
have already received assistance.
3. Project Bypass. The commission may bypass
any project on the fundable priority list which is not, in the commission's
opinion, making satisfactory progress in satisfying requirements for
assistance. Bypassed projects will be removed from the fund-able priority list
and placed on the proper contingency priority or planning list in a position
dictated by the commission. In determining whether a project is making
satisfactory progress in satisfying the requirements for assistance, the
commission shall use the criteria contained in paragraphs (C)3.A. through
(C)3.C. of this rule. The commission may reinstate any bypassed projects on the
fundable priority lists after first giving notice to applicants for those
projects on the contingency lists of the commission's intent to reinstate
bypassed projects. Funds released through project bypass will be considered
uncommitted and available for distribution in accordance with subsection (C)2.
of this rule.
A. Any project on the fundable
lists may be bypassed if the applicant fails to submit all documents required
for assistance at least sixty (60) days prior to the quarter for which
assistance is anticipated.
B. The
commission may use individual project schedules developed by the department to
determine whether a project on the current fundable list is making satisfactory
progress at those times during the fiscal year.
C. Carryover projects may be automatically
bypassed if they do not have all documents required for assistance submitted
three (3) months before the end of the federal fiscal year in which their
application expires.
4.
Project Removal. The department will remove projects from the contingency,
fundable, or planning lists if they meet any one (1) of the criteria stated in
paragraphs (C)4.A. through (C)4.E. of this rule.
A. The department will remove a project if it
has received one (1) or more funding commitments necessary to cover the
estimated project cost or has been fully funded by other funding
sources.
B. The department will
remove a project if it is determined to be ineligible for funding.
C. The department will remove projects from
these lists if directed by commission action under subsections (C)1. or (C)3.
of this rule.
D. The department
will remove projects from these lists if directed to do so by the Environmental
Protection Agency in accordance with federal law.
E. The department will remove a project from
these lists at the request of the applicant.
*Original authority: 644.026, RSMo 1972, amended 1973, 1987, 1993, 1995, 2000; 644.101, RSMo 1972, amended 1973, 1982, 1987, 1991, 1993, 1998, 2000, 2009; and 644.121, RSMo 1972, 1973, 1987, 1991.
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