Current through August 26, 2024
(1) GENERAL REQUIREMENT. Except as provided
in sub. (8), the department may not reimburse a responsible person for the cost
of a contract service unless the responsible person contracts that service
according to subs. (2) to (7).
(2)
BIDS AND ESTIMATES REQUIRED.
(a) The
department may not reimburse a responsible person for contract services
performed at a discharge site unless the responsible person selects the
contractor to provide services at that site on the basis of at least 3
competitive bids. The responsible person shall provide the department with a
copy of the accepted bid before authorizing the contractor to
proceed.
(b) Except as provided in
par. (c), the department may not reimburse a responsible person for contract
service costs that exceed the contractor's bid for those services under par.
(a).
(c) The department may
reimburse a responsible person for contract services not included in the
contractor's initial bid under par. (a), or for additional hours or units of
service beyond those included in the bid under par. (a), if all of the
following apply:
1. The contractor providing
the additional services was selected by the competitive bidding procedure under
par. (a).
2. The contractor bills
for the additional services at the same per-unit price at which the contractor
agreed to provide equivalent services, if any, in the contractor's initial bid
under par. (a).
3. The contractor
provides the responsible person and the department with a cost estimate for the
additional services, and obtains the approval of the responsible person and the
department, before performing those services.
5. The responsible person gives the
contractor written authorization to proceed with the additional services, after
receiving the contractor's estimate under subd. 3.
6. The cost for the additional services does
not exceed the contractor's estimate under subd. 3.
7. The additional services do not involve the
selection, design or installation of active groundwater remediation.
(d) A responsible person requesting
reimbursement from the department shall keep copies of all bids and estimates
required under this subsection, and shall make those copies available to the
department for inspection and copying upon request. The responsible person
shall keep copies of the bids and cost estimates for at least 2 years after the
department has paid or denied all reimbursements to which those bids or cost
estimates pertain.
(2m)
BID AND ESTIMATE CONTENTS. Every bid under sub. (2) (a) and every cost estimate
under sub. (2) (c) 3. shall include all of the following:
(a) A clear description and itemization of
the contract services included in the bid or estimate. The description shall be
based on an approved workplan or, if there is no workplan, on a good faith
estimate of the scope of the project as stated in the bid or
estimate.
(b) A total bid price or
cost estimate for all of the contract services included in the bid or estimate,
and a subtotal price for each of the component services itemized in the bid or
estimate.
(c) The following
information related to every service priced on an hourly or per unit basis:
1. The price per hour or per unit of
service.
2. A reasonable, good
faith estimate of the number of hours or units of service to be
provided.
3. The total estimated
price for the service, based on the estimate under subd. 2.
4. The estimated date by which the contractor
will perform the service.
(d) Every certification and disclosure
required of the contractor under subs. (6) and (7).
(e) The basis for attributing project costs
to corrective measures under this chapter, if the project is also designed to
investigate or repair environmental contamination involving substances that are
not agricultural chemicals. The attribution shall take into account the reasons
for which the overall project was initiated, and the end goals of the
project.
(3) SERVICES
PRICED ON AN HOURLY OR PER UNIT BASIS.
(a)
Bids and cost estimates for the following services shall be priced on an hourly
or per unit basis:
1. Excavating.
2. Trucking.
3. Landspreading and other waste treatment or
disposal services.
4. Drilling,
including at-depth soil sampling and well installation.
5. Laboratory services.
6. Services normally billed on an hourly or
per unit basis.
(b) Bids
and cost estimates for professional or personal services, including
engineering, hydrogeologic, field technician and general contracting services,
shall be priced on an hourly basis.
(4) RESPONSIBLE PERSON; CHOICE OF
CONTRACTORS.
(a) The department may require a
responsible person to explain that person's choice of contractors.
(b) A responsible person may select any
contract service provider, but may not apply for reimbursement of any
corrective action costs that exceed the low bid for any of the following
contract services:
1. Excavating.
2. Trucking.
3. Landspreading and waste disposal
services.
4. Drilling, including
at-depth soil sampling and well installation.
Note: A responsible person may obtain full
reimbursement for services provided by a consultant or laboratory that is not
the lowest bidder, provided that other requirements under this section are met.
A responsible person should consider bid amounts, but may consider other
factors including professional qualifications and special project needs.
(5) SEPARATE
CONTRACTORS.
(a) No contractor who provides
any of the following contract services for a corrective action may provide
contract services other than the following contract services for that
corrective action:
1. Excavating.
2. Trucking.
3. Landspreading and other waste treatment or
disposal services.
4. Drilling,
including at-depth soil sampling and well installation.
(b) No contractor who provides laboratory
services for a corrective action, other than immunoassay services or field
testing services using hand-held devices, may provide other contract services
related to that corrective action.
(c) Paragraphs (a) and (b) do not apply to a
general contractor who subcontracts with independent subcontractors to provide
services under par. (a) or (b) for a corrective action, provided the
subcontractors comply with pars. (a) and (b).
(6) CERTIFICATION BY CONTRACTOR.
(a) In every bid or cost estimate under sub.
(2), the contractor shall certify both of the following:
1. That the contract services will comply
with applicable requirements under this chapter, chs.
ATCP
29 to
33, and chs.
NR
700, 706, 708 and 712 to 727.
Note: For corrective actions under this chapter,
the department is authorized to review compliance with chs.
NR
700, 706, 708, and 712 to 727, and to grant required
approvals and variances under those chapters on behalf of the department of
natural resources.
2. That
the contractor will make available to the department upon request, for
inspection and copying, all of the contractor's documents and records related
to the contract services.
(b) If a contractor submits a bid or cost
estimate under sub. (2) to provide engineering, hydrogeologic, field technician
or general contractor services, the contractor's bid shall certify that the
contractor has and will maintain insurance coverage for errors and omissions,
including pollution impairment liability coverage of not less than $1,000,000
per claim, for not less than $1,000,000 in annual aggregate claims, with a
deductible of not more than $100,000 per claim.
Note: If a general contractor solicits other
contractors on behalf of a responsible person and the responsible person
contracts directly with or directly compensates the other contractors, the
general contractor is subject to the insurance provisions contained in this
paragraph. A contractor who subcontracts for corrective action services and
directly compensates the subcontractor is not acting as a general contractor
with regard to that subcontracted service.
(c) If a contractor submits a bid or cost
estimate under sub. (2) to provide laboratory services, the contractor's bid
shall certify that the contractor has and will maintain insurance coverage for
errors and omissions (professional liability) of not less than $1,000,000 per
claim, for not less than $1,000,000 in annual aggregate claims, with a
deductible of not more than $100,000 per claim.
(d) If a contractor submits a bid or cost
estimate under sub. (2) to provide drilling services or soil probing, the
contractor's bid shall certify that the contractor has and will maintain
insurance coverage for pollution impairment liability coverage of not less than
$1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims,
with a deductible of not more than $100,000 per claim.
(7) CONTRACTOR DISCLOSURE.
(a) If a contractor's bid or cost estimate
under sub. (2) includes any contract service or cost a contractor knows or
should know is not eligible for reimbursement under this chapter, the bid or
cost estimate shall clearly identify that service or cost and shall clearly
disclose that it is not eligible for reimbursement by the department.
(b) A contractor shall disclose, in every bid
under sub. (2) that includes landspreading services, the name of the
subcontractor who will provide the landspreading services.
(8) EXEMPTIONS. The department may reimburse
necessary and reasonable contract service costs incurred by a responsible
person who fails to comply with subs. (2) to (7) if any of the following
applies:
(a) The responsible person
demonstrates that compliance with subs. (2) to (7) is not reasonably
possible.
(b) The contract service
costs charged by the contractor do not exceed $3,000.
(c) The department pays reimbursement at a
rate that is no more than 75% of the rate normally allowed under s.
ATCP 35.22.
(9) DISAPPROVED BIDS OR ESTIMATES. If the
department finds that a bid or cost estimate under sub. (2) is unreasonable,
that bids or cost estimates appear to be noncompetitive, or that all or part of
the contract service is unnecessary, the department may do any of the
following:
(a) Disapprove the bid or
estimate.
(b) Require the
responsible person to obtain up to 3 additional bids or estimates. Additional
bids or estimates, if any, shall comply with this section.
(c) Determine that the corrective action cost
eligible for reimbursement is less than the amount bid or estimated.
