Current through Register Vol. XLI, No. 50, December 13, 2024
Section 157-1-7 - Procurement Procedures for Negotiated Contracts7.1. Purpose. To set forth procedures for negotiated contracts to ensure that a qualified consultant is obtained through an equitable selection process and that prescribed work is properly accomplished in a timely manner at a just and reasonable cost pursuant to 23 CFR 172 for federally funded work and pursuant to W. Va. Code §5G-1, et seq., for state funded work.7.2. Application. This rule applies to all design services and design related service contracts financed with federal-aid highways funds and contracts authorized under procedures codified in State statutes funded by State funds such as: * project management
* construction management and inspection
* feasibility studies
* preliminary engineering
* design engineering
* design
* engineering
* surveying
* mapping
* architectural
* materials, inspection, sampling, and testing
* archaeological investigation
* historic investigation
* preliminary right of way engineering services
* related services to any above
7.2.a. When it is necessary to utilize the services of a consultant, the Division Director or the District Manager will submit the reasons for so doing through appropriate channels to the Commissioner, or designee, for approval. The request will also indicate whether competitive or non-competitive selection is appropriate. Competitive selection must be used for all federally funded work. Non-competitive selection may be used on state funded work, provided that in all non-competitive selections, justification must be demonstrated in accordance with the procedures of Subsection 7.7 of this Rule.7.2.b. The West Virginia Department of Transportation, Division of Highways, policy requires that Disadvantaged Business Enterprises shall have the maximum opportunity to participate in the performance and award of contracts, whether financed in whole or in part with Federal funds in accordance with the Division of Highways; Disadvantaged Business Enterprise Program.7.3. Definitions. 7.3.a. Audit. - An official inspection of an organization's accounts that is done in accordance with Government Auditing Standards issued by the Comptroller General of the United States and all eliminations required by the Federal Acquisition Regulations (FAR) will be made. The submitted certified audit overhead (indirect cost rate) report shall include the certification for the allowable costs used to establish the final indirect cost rate are in accordance with the FAR cost principles, or a verification indicating this certification was previously submitted and accepted by the cognizant agency.7.3.b. CFR. - C ode of Federal Regulations.7.3.c. Cognizant Agency. - Any federal or state agency that has conducted and issued an audit report of as defined in 23 CFR 172.3.7.3.d. Competitive Selection. - All procurement transactions conducted in such a manner as to provide unrestricted opportunities for any and all prospective consultants to obtain work with the Division of Highways.7.3.e. Consultant. - A business, educational institution, individual or public agency qualified to perform a service required by the Division of Highways. A consultant may be a consulting engineer, architect, public agency or other professional firm or agency.7.3.f. Consultant Confidential Qualification Questionnaire (CCQQ). - A Division of Highway's form on which a consultant's experience data, personnel, fields of work performed, and present and past activities are listed.7.3.g. Contract Modification. - A n agreement modifying the existing contract, such as an agreement to accomplish work beyond the scope of the original contract.7.3.h. Cost Analysis. - A review and evaluation of the separate cost elements and proposed fixed fee of (a) a consultant's cost or pricing data and (b) the judgmental factors applied in projecting from the data to the Engineer's Cost Estimate in order to form an opinion on the degree to which the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.7.3.i. Delegated Projects. - Federally funded projects where Federal Highway Administration (FHWA) and the Division of Highways have agreed that the Commissioner of Highways will act on behalf of the FHWA. Also known as Exempt Projects.7.3.j. Disadvantaged Business Enterprises (DBE). - A for-profit small business concern which is at least 51 percent owned by one or more socially or economically disadvantaged individuals, whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it, and which meets all certification criteria under 49 CFR, Part 26 and has been certified by the Unified Certification Program.7.3.k. Engineer's Cost Estimate. - A written detailed estimate prepared after the detailed scope of work meeting and prior to the receipt of the consultant's price proposal. This will have an appropriate breakdown of specific types of labor required, work hours, indirect cost, and an estimate of the consultant's fixed fee (considering the risk and complexity of the work) for use during negotiations.7.3.l. Extra Work. - Any service or actions required of the consultant above and beyond the obligations of the original or modified contract.7.3.m. Fixed Fee. - A dollar amount established to cover the consultant's profit and business expenses not allocable to overhead.7.3.n. Indefinite Delivery/Indefinite Quantity (ID/IQ). - On call contract for the performance of services for a number of projects, under task or work orders issued on an as-needed basis, for an established contract period. ID/IQ contract period cannot exceed five (5) years and must specify a maximum total contract dollar amount to be awarded under a contract. ID/IQ Master Agreements authorized under this rule shall not exceed five (5) years, unless otherwise approved by the Commissioner.7.3.o. Internal Control Questionnaire (ICQ). - A statement that provides adequate details to demonstrate that the prospective consultant has a job cost accounting system that is capable of segregating, identifying, and accumulating costs for cost type contracts.7.3.p. Letter of Qualification. - A written expression of interest made by the consultant indicating his or her desire to perform a particular project, task, or service. This shall include, at a minimum, the evaluation factors and other information needed to verify the consultant's qualifications and a completed Technical Evaluation form. Additional statements as to the consultant's particular abilities and qualifications, pertinent to preliminary scope of work may be included if deemed necessary. Forms and example sheets are available through Engineering Division's consultant services personnel or on online at: https://transportation.wv.gov/highways/engineering/Consultant/DDC%20Manual%20with%20updated%20PMD.pdf7.3.q. Management Support Consultant (MSC). - Consultants hired to perform specific engineer functions normally performed by Division of Highways' staff. These services may include but are not limited to review of other consultants work, procurement activities, and other quality assurance tasks. Firms selected as MSC will receive oversight from the Division of Highways but many of the tasks assigned will be of an independent nature.7.3.r. Master Agreement. - A written agreement covering a specified period of time for the performance of a particular service or services that establishes specific methods of pay. A master agreement shall not exceed a two (2) year period, without time extensions, unless approved by the Commissioner.7.3.s. Methods of Pay. - Methods of pay which may be used are as follows:7.3.s.2. cost per unit of work;7.3.s.3. cost plus a fixed fee;7.3.s.4. specific rates of compensation; or7.3.s.5. cost plus percentage of cost (state funded work only). Each contract shall have a maximum amount payable which shall not be exceeded unless adjusted by a contract modification.
7.3.t. Negotiation Memorandum. - A t the conclusion of each negotiation of an initial or revised price, the Division shall promptly prepare a memorandum of the principal elements of the price negotiation. The memorandum shall be included in the contract file and shall include at a minimum:7.3.t.1 the project number;7.3.t.2 the purpose of the negotiation;7.3.t.3 the name and position of each person representing the consultant and the Division; and7.3.t.4. the most significant facts or considerations controlling the establishment of the negotiated price.7.3.u. Noncompetitive Selection. - The method of procurement of professional design and related services when it is not feasible to award the contract using competitive negotiation or small purchase procurement methods. This process may be utilized only for state funded work. This type of procurement will follow procedures set forth in 23 CFR 172.7(3).7.3.v. Non-Delegated Projects. - Federally funded projects that require the involvement and oversight of the FHWA.7.3.w. Non-Project Specific Work. - Work of a general nature such as soils investigations, materials sampling, testing, and aerial photography.7.3.x. Performance Reports. - A report prepared by the Division or District monitoring the service after the final acceptance of work or after contract termination, as applicable, evaluating the overall performance of the consultant.7.3.y. Preliminary right of way engineering services. - Preliminary right of way services shall be those tasks that can be performed without conflict with any professional appraisal services and may be reimbursed using engineering phase funding as defined by any federal reimbursable requirements.7.3.y.1 Tasks included in these services are; title research,7.3.y.2 Tasks not included in these services are; appraisals,7.3.y.3 Other right of way tasks not identified in 7.3.z.1 shall be approved by the Right of Way Division Director, or their designee.7.3.z. Preliminary Selection Committee (also known as the "Shortlist Committee"). - The Commissioner will establish guidance for the creation and composition of the shortlist committee and interview panels for projects selected under Section 7.4. A minimum of three (3) members are necessary to transact the shortlist. The interview panel shall consist of a minimum of five (5) members identified by the shortlist committee.7.3.aa. Prenegotiation Audit. - The renegotiation audit or shortlist scoring sheet is an examination of a consultant's records made in accordance with generally accepted performance standards and shall be used for evaluation of qualifications and availability for work.7.3.bb. Prequalified List. - A list of prequalified firms available to perform specific categories of work. The prequalified list shall be open for a maximum of five (5) years. Any consultant who wants to request inclusion on the list may file the proper pre-qualification documents pursuant to an advertisement at any time the list is open. If the consultant meets the qualifications to be included on the list, the consultant shall be placed on the list for the remainder of the term of the list.7.3.cc. Price Proposal. - A statement by a consultant which is submitted after the consultant is selected to accomplish the work and after the detailed scope of work meeting, indicating the consultant's proposed costs to perform the required service. The Price Proposal cannot be submitted until the Engineer's Cost Estimate is completed. The Consultant shall obtain approval prior to submitting their Price Proposal.7.3.dd. Scope of Work. 7.3.dd.1. Preliminary: A general description of the work to be accomplished, including the location.7.3.dd.2. Detailed: A clear, accurate, and detailed description of the technical requirements for the services to be rendered.7.3.ee. Selection Authority. - The Commissioner of Highways is the Selection Authority for projects following Subsection 7.4 et seq., for firms selected for use on a Master Agreement per Subdivision 7.4.h., and for firms included on a Prequalification List per Subdivision 7.6.b. The Commissioner of Highways is the Selection Authority for individual selections from a Master Agreement and Prequalified List per Subdivisions 7.5.d. and 7.6.e., respectively. The Commissioner of Highways is the Selection Authority for individual selections for district specific Master Agreements and Prequalified Lists per Subdivision 7.5.e. and Subdivision 7.6.e. respectively.7.3.ff. Selection List. - A list of consultants, the minimum number being two (2) more than required, in order of preference, prepared by the Preliminary Selection Committee.7.3.gg. Selection Report. - A report prepared by the Division Director or District Manager requesting the service and sent to the Selection Authority, along with the Selection List. The report shall include a description of the interviews and evaluation conducted by the Preliminary Selection Committee upon which the Selection List is based.7.3.hh. Short List. - A list of consultants, with a minimum of two (2) more than required, all considered to be most qualified to accomplish a proposed project, determined by the evaluation factors shown on the Shortlist Scoring Sheet. 7.3.ii. Short List Selection Criteria Technical Evaluation Factor Form. - A form used to aid in the review of a consultant's qualifications per the evaluation factors.7.4. Competitive Selection. Quality-Based Selection (QBS) following the guidelines set forth under the Brooks Act to be used on projects where services are estimated to cost more than the maximum limits as established by 23 CFR 172 for federally funded work or W.Va. Code § 5G-1-4 for state funded work, for the selection of consultants. When the service of a consultant under this procedure is desired, the Division or District will advertise for letters of qualification from consultants interested in performing the service and develop a list for the specific project.7.4.b. The solicitation shall include a clear and accurate description of the service to be performed, shall identify all significant evaluation factors and their relative importance, and shall include the latest date by which the Letter of Qualification must be submitted.7.4.c. All Letters of Qualification received from consultants will be reviewed by the Division or District initiating the request to assure that all pertinent information and data have been submitted. Any letters which were received not containing complete information or which were not received prior to the submission date deadline, shall be rejected and the consultant so notified. The deadline shall be at least 10 working days after the initial day of solicitation. Letters of qualification shall be received electronically. The solicitation shall identify the delivery means, addresses and deadlines of electronic submittal.7.4.d. The Division or District responsible for the direct conduct of the contract will provide a completed copy of the Short List Selection Criteria Technical Evaluation Factor Form for each proposal to the Preliminary Selection Committee. The forms pertaining to short list criteria and selection are available on the division's website at: https://transportation.wv.gov/highways/engineering/Consultant/DDC%20Manual%20with%20updated%20PMD.pdf This evaluation will be filed in the Division's or District's records. 7.4.e. The Preliminary Selection Committee will evaluate the firms, in accordance with the services requested in the solicitation, and will develop a short list of consultants who are, in its opinion, best qualified to perform the desired service. The minimum number of firms on the short list shall be two (2) more than required to complete the project.7.4.f. All Disadvantaged Business Enterprises on the list of consultants who submitted proposals will be identified on the qualifications and technical evaluation.7.4.g. Multiple consultants may be obtained through the use of a single solicitation when the services to be performed are of a similar nature and can be clearly defined in the advertisement. The listing submitted to the Selection Committee should indicate the number of consultants required.7.4.h. When the services of a consultant are desired for a continuing or master agreement for items such as inspection services, subsurface investigation, or design services, the procedures of this section shall be used for the selection process only. Individual assignments for master agreements shall follow Subsection 7.5.d.7.4.i. The Division Director, District Manager, or designee, requesting the service will schedule interviews with each shortlisted firm. Discussions will be held regarding anticipated concepts and proposed methods of approach to the assignment, including those items noted in the qualification and technical evaluation.7.4.j. After scheduled interviews with the short-listed consultants, the Division Director or District Manager shall prepare a Selection Report for review and approval by the Selection Authority.7.4.k. The award of negotiated contracts financed with Federal funds will take into consideration projects utilizing DBE participation.7.4.l. All consultants who have submitted proposals will be notified that the selection has been made and the name of the preferred consultant. The notification shall inform the successful and unsuccessful firms that debriefings are available at their request.7.5. ID/IQ Project Procurement. To be used for procuring professional services for projects estimated to cost less than the maximum limits established by 23 CFR 172 for federally funded work or WV Code § 5G-1-4 for state funded work. This type of procurement will follow procedures set forth in 23 CFR 172.9. 7.5.a. Projects that can utilize this form of procurement are:7.5.a.1. State funded projects. This contract shall match maximum thresholds as set by state code.7.5.a.2. Federal-aid projects using the ID/IQ type of contract.7.5.a.3. Individual assignments under a Master Agreement.7.5.b. The Division Director or District Manager requesting the service shall obtain approval from the Commissioner to use the ID/IQ project procedure.7.5.c. The Division Director or District Manager shall follow all the requirements of Subsection 7.4 and shall serve on the Preliminary Selection Committee.7.5.d. The Division Director or District Manager requesting the service shall submit a Selection List to the Commissioner of Highways, the Selection Authority, for review and approval.7.5.e. For project specific assignments to be performed under an ID/IQ Master Agreement, the following steps shall be utilized;7.5.e.1. The Division Director or District Manager requesting the service of a consulting firm, who has an ID/IQ Master Agreement in place, is not required to obtain pre-approval from the Commissioner to use this process. Pre-approval shall be assumed due to the Selection Authority having approved the ID/IQ Master Agreement process and selection.7.5.e.2. The Division Director or District Manager requesting the service shall consider three or more regionally based professional firms qualified to perform the service and have a current ID/IQ Master Agreement.7.5.e.3. The Division Director or District Manager requesting the service shall submit a selection list to the Selection Authority for review and approval.7.5.e.4. ID/IQ Master Agreements shall have the following monetary and term length limits: 7.5.e.4.A. Maximum Dollar limits as established by 23 CFR 172 for federally funded work or WV Code § 5G-1-4 for state funded work, per individual project assignment.7.5.e.4.B. Maximum dollar limits in aggregate, $7,500,000.00, per agreement, per year.7.5.e.4.C. Maximum length of two (2) years, provided that up to three one-year extensions shall be permissible with consent of both parties.7.6. Procurement using Prequalified List. May be used for procuring professional services for projects estimated to cost less than maximum limits established by 23 CFR 172 for federally funded work or W.Va. Code § 5G-1-4 for State funded work. The Commissioner must approve the use of this procurement method for all categories of work. Division Director or District Manager, who intend to use this procurement method, shall prepare prequalification categories, a general description of work to be performed by firms under each prequalification category, and obtain approval from the Commissioner. Prequalification lists shall be maintained by Engineering Division, Consultant Services Unit, unless otherwise directed by the Commissioner, and made available to the public on the WV DOT website. Information on the website must include, at a minimum, the various categories of prequalification lists, firms available for use in the category, and the terms of the prequalification list. This type of procurement will follow procedures set forth in 23 CFR 172.9. 7.6.a. Projects that can utilize this form of procurement are:7.6.a.1. State funded projects.7.6.a.2. Federal-aid projects using the ID/IQ type of contract. This contract form is limited to contracts whose costs are less than the maximum amount set forth in W.Va. Code § 5G-1-4; and7.6.a.3. Individual assignments shall be from a Categorized Prequalification List of approved firms.7.6.b. A solicitation will be placed, in accordance with Subdivision 7.4.a, requesting interested firms submit a Letter of Qualification for the categorized prequalification list. A firm must submit a separate Letter of Qualification for each prequalification list for which it is interested. The solicitation will address the information to be included on the Letter of Qualification, all significant factors used in evaluating the interested firm and their relative importance, the term of the pre-qualification list and the length of time the firm may remain on the list before renewal is required.7.6.c. The Division Director or District Manager, receiving a request from a firm for inclusion on a prequalification list, shall review the firm's Letter of Qualification to determine if the interested firm submitted all required information and if the firm is qualified for the work advertised. If the firm meets all required qualifications, the Division Director or District Manager shall obtain approval for inclusion on the list from the Commissioner. Once approved, the firm's name will be included on the prequalified list with the appropriate information.7.6.d. The Division Director or District Manager shall follow all the requirements of Subsection 7.4 and shall serve on the Preliminary Selection Committee.7.6.e. The Division Director requesting the service shall submit a Selection List to the Commissioner of Highways, who shall serve as the Selection Authority, for review and approval.7.6.f. For project specific assignments to be performed using the Prequalification List, the following steps shall be utilized: 7.6.f.1. The Division Director or District Manager requesting the service of a consulting firm, using the available firms from the Prequalified List, is not required to obtain pre-approval from the Commissioner to use this process. Pre-approval shall be assumed due to the Commissioner having approved the firm's inclusion on the Prequalification List.7.6.f.2. The Division Director or District Manager requesting the service shall conduct discussions with three or more professional firms from active firms available from a prequalified list.7.6.f.3. The Division Director or District Manager requesting the service shall submit a selection list to the Selection Authority for review and approval.7.6.f.4. Agreements using firms from the Prequalified list shall have the following monetary limits: 7.6.f.4.A. Less than the maximum limits as established by 23 CFR 172 for federally funded work or WV Code § 5G-1-4 for State funded work, per individual project assignment.7.6.f.4.B. No more than $7,500,000.00 aggregate per Prequalified List in original agreements per calendar year.7.6.f.5. Agreements using firms from the Prequalified List shall have the following term limits:7.6.f.5.A. A Prequalified Category List will be advertised and remain open for a maximum of five (5) years.7.6.f.5.B. Prequalification lists may be closed or removed at the direction of the Commissioner.7.6.f.5.C. Firms applying for inclusion on the List will be available for assignment for the limits of the original advertisement no matter when the firm makes application unless the list was previously closed by the Commissioner.7.6.g. Prequalification lists created for management support roles will follow 23 CFR 172.7(b)(5) and guidance found in the WVDOH Consultant Services Manual. Firms seeking approval to be placed on the Management Support Consultant (MSC) prequalification list, must fill out and maintain an updated Confidentiality Agreement and Conflicts of Interest form per 23 CFR 172.7(b)(4). Selected firms shall report to a responsible charge Division employee as designated by the Division Director or District Manager per 23 CFR 172.9(d)(1).7.7. Noncompetitive Selection. 7.7.a. Approval from the Commissioner must be received prior to using this process.7.7.b. Circumstances under which a contract may be awarded under this procedure are limited to the following: 7.7.b.1. the item is available only from a single source;7.7.b.2. when there is an emergency, as determined by the Commissioner, or his or her designee, which will not permit the time necessary to conduct competitive selections;7.7.b.3. after solicitation of a number of sources, competition is determined inadequate; or7.7.b.4. when it is determined appropriate to use available services of a public agency or educational institution.7.7.c. The name of the consultant who is considered qualified to perform the service will be submitted to the Selection Authority with an explanation of the circumstance in paragraph (2), Subsection 7.7.7.8. Negotiation of Fee. 7.8.a. The most preferred consultant on the selection list approved by the Selection Authority will be requested to attend a detailed scope of work meeting, after which time the consultant is to submit a price proposal. The price proposal shall not be submitted without approval by the Division or District. The initial scope of work meeting may be waived for those consultants that are satisfactorily providing the required service such as drilling, sampling, inspection, etc. The price proposal shall address the evaluation factors and shall include a complete listing of all anticipated sub-consultants.7.8.b. The Division Director or District Manager initiating the request for service is responsible for preparing an independent engineer's cost estimate prior to the receipt of the fee proposal from the consultant and for negotiating an agreement with the preferred consultant, except for services obtained on a per unit cost.7.8.c. Negotiations shall be conducted by the Division or District requesting the service.7.8.d. Price proposals will be subject to audits in accordance with 23 CFR 172.11.7.8.e. The proposed contract, including the agreed upon cost figures, shall be submitted to the Commissioner, or his or her designee, for approval and execution. All proposed contracts for non-delegated projects shall be subject to approval by FHWA prior to execution. When approved by the Commissioner, the consultant may be given a notice to proceed on federally funded work. This notice to proceed shall be subject to authorization of federal funds.7.8.f. In the event that the fee cannot be agreed on, the Division Director or District Manager shall advise the Commissioner in writing, through the appropriate channels, and with approval by the Commissioner, may begin negotiations with the consultant who was listed number two by the Selection Authority and so on, if necessary. The Division Director or District Manager shall obtain a written final proposal from the firm and notify the firm that negotiations have been terminated.7.8.g. Should it be impossible to reach an agreement with any of the consultants selected, the Commissioner will be so advised in writing.7.8.h. The Commissioner will then request the Preliminary Selection Committee to make a reassessment to determine whether to extend the list, to renegotiate with consultants from the existing selections, to accomplish the service "in-house", or to remove the work from the program.7.8.i. A negotiation memorandum shall be maintained for a three (3)year period after final payment.7.8.j. On July 1st of each year, in accordance with W. Va. Code § 17-2A-22, the Commissioner will issue guidance regarding allowable overhead ceilings the Commissioner may deem necessary to regulate.7.9. Contract Modifications. 7.9.a. Contract modifications are required for any modifications in the terms of the original contract that significantly change the character, scope, complexity, or duration of the work or significantly change the conditions under which the work is required to be performed. All contract modifications for non-delegated projects shall be subject to prior approval by FHWA.7.9.b. A contract modification shall clearly outline the changes made and determine a method of compensation.7.9.c. Changes to the scope of work may require adjustment, either positive or negative, of the fixed fee portion in a cost plus fixed fee contract, or in a lump sum contract. Overruns or underruns in project costs, as part of the original scope of work, shall not warrant an adjustment in the fixed fee portion of a cost plus fixed fee contract.7.9.d. When necessary to maintain schedules or as determined by the Commissioner of Highways, or his or her designee, the consultant may be authorized to proceed with work prior to agreement on the amount of compensation and execution of the contract modifications with adequate justifying documentation. On non-delegated projects at least verbal prior approval by FHWA must be obtained.7.9.e. A modification to an original agreement, where the original advertisement concerned all phases of the work, shall be negotiated following the requirements of Subsection 7.8. A detailed scope of work meeting and an independent engineer's estimate are required. The original advertisement must have included all phases of work for this procedure to be used. If the original advertisement did not contain all phases of the work, the requirements of Subsection 7.4 shall be followed for the selection of a consultant, unless the Commissioner of Highways, or his or her designee, finds that the work requiring the modification was not known or anticipated at the time of the advertisement, and not allowing the modification would result in additional costs and delays. Examples of this type of modification are development of construction contract plans as Phase II of an original Phase I design study or rehabilitation of a structure where Phase I was a detailed inspection and Phase II is reconstruction or alteration of the construction project delivery.7.9.f. Contract modifications are required for any modification in the terms of the original contract that change the cost of the contract or that significantly change the character, scope, complexity, or duration of the work. In the interest of efficiency and continuing the work on the project, the scope of work will be established in the proposal and during negotiations. The scope of work shall be recommended by the Division Director or District Manager responsible for the work for approval by the Commissioner. An independent engineer's estimate will not be necessary, but a negotiation memorandum shall indicate a thorough review was made and that the scope of work and the adjusted fee are complete and compatible. An example of this type of modification is a change in the design of construction plans due to a geotechnical investigation which shows soil stability inadequacies. Written notification of changes to scope or level of effort that occur past the next possible scheduled meeting in accordance with Subsection7.10 of this rule, will be ancillary and within the scope, but they must be documented in the project file.7.10. Control of Work. The Commissioner may authorize a notice to proceed or an advanced notice to proceed by a properly executed agreement between the parties. After notification to proceed is given to a consultant in writing, or electronically, the responsible Division or District will meet regularly with the consultant to discuss progress and problems as they may occur with notes of the meetings recorded (either on paper or electronically) in the project files. These meetings may be held every month. At these meetings, a complete review of the progress to date is made with emphasis on acceptability of costs billed, the next phases of the work to be performed, schedules, and submissions of contract modification documents. Periodic submission of data is made in accordance with the applicable type of project involved. All phases of contract work are viewed by the Division or District within the Division of Highways concerned with that work and that Division's or District's opinion of the consultant's performance and expertise in their field is considered in the evaluation of the consultant for future work. If deemed necessary by the Division or District, visitation of the consultant's office shall be made. For those tasks of short duration, the need for regular meetings may be waived. The responsible Division or District shall discuss problems as they occur. Documentation of the discussions shall be kept in the Division or District file.7.11. Evaluation of Work. 7.11.a. Performance evaluations should include, but not be limited to, an assessment of the timely completion of work, adherence to contract scope and budget, and quality of the work conducted. The contracting agency shall provide the consultant with a copy of the performance evaluation and the opportunity to provide written comments to be attached to the evaluation. Interim evaluations may be necessary based on the scope, complexity, and size of the contract as a means to provide feedback, foster communication, and achieve desired changes or improvements. Completed performance evaluations should be archived for consideration as an element of past performance in the future evaluation of the consultant to provide similar services.7.11.b. Upon completion or performance termination of the consultant's work, the Project Manager or Project Supervisor of the responsible Division or District will prepare a report recording its evaluation of the consultant's efforts. It should include comments from other Divisions when appropriate. The performance report shall be reviewed by a reviewing official, which shall be the Division Director or District Manager of the responsible Division or District. A copy shall be sent to the consultant for review and comment, and any written comments received shall be attached to the final report. All consultants with active contracts shall be evaluated in March of each year on each active project. On contracts where the final product has been accepted by the Division or District, but the final invoice has not been paid, the consultant will not need to be evaluated.7.12. Contract Closeout or Finalization. Upon completion of all contractual obligations by the consultant, a final audit will be requested from West Virginia Department of Transportation's Auditing Division by the responsible contracting officer.7.13. Audit Follow-up. Primary responsibility for action and follow-up on audit findings and recommendations rest with the Division or District supervising the work. Timely action by these officials is an integral part of the audit system.7.14. Protest Procedures. 7.14.a. Consultants who feel they have not been selected to perform work for unjust cause may appeal to the Commissioner for a hearing to be held on their behalf. They must do so in writing within 10 days after the date of being notified of the determination. In addition, any claims, or disputes in reference to payment, work, method of compensation, or performance evaluation may be appealed to the Commissioner.7.14.b. Matters concerning work performed, wherein Federal funds are used in whole or part, may be protested to FHWA once all administrative procedures have been exhausted with the State. Please refer to the FHWA Consultant Services website for a link to Best Practices in Management of Design Errors and Omissions, as prepared as part of NCHRP Project 20-70, Task 225. However, reviews of protests by the federal agency will be limited to:7.14.b.1. violations of federal law or regulations; and7.14.b.2. violations of the State's protest procedures for failure to review a complaint or protest. Protests received by the FHWA other than those specified above will be referred to the State.7.15. Contractual Responsibilities. The Division of Highways is responsible for the settlement of all contractual/administrative issues. All settlements relating to contracts using federal-aid funds shall be reviewed and approved by FHWA prior to participation in any additional costs (only on non-delegated projects). The Division of Highways is responsible for determining the extent to which consultants are accountable for the professional quality, technical accuracy, coordination of services, and costs, for which consultants may be reasonably liable, resulting from errors or deficiencies in design furnished under its contracts. When a modification to a construction contract is required because of an error or deficiency in the services provided by the consultant, the Division or District responsible for oversight of the consultant's contracted work shall follow the procedure in Subsection 7.16. The Division or District shall be responsible to enforce the liability and collect the amount due as determined by the Commissioner.7.16. Disposition of Errors and Deficiencies. The Commissioner of Highways will establish guidance for the creation and composition of the Error and Omission Committee. The Division or District that identifies that an error has occurred, shall forward that information to committee "chair", per the rules and guidance created. The Division or District responsible for oversight of the consultant's contracted work shall investigate and provide a report to the Error and Omission Committee for final determination.7.16.a. The committee chair shall report the findings to the Commissioner for final disposition.7.17. Redesign for Errors and Deficiencies. The consultant is required to make necessary corrections at no cost to the Division of Highways when the contract documents furnished under their contract contain errors, deficiencies, or inadequacies.7.18. Record Keeping. Unless otherwise noted, all documentation under this procedure will be retained on file at the Division of Highways and will be available for review by FHWA.