Section NR 166.11 - Procurement(1) APPLICABILITY. Procurement of professional services and construction contracts by financial assistance recipients under this chapter shall be in accordance with local, state, and federal laws applicable to the SDWLP project. No contract may be awarded to any person or organization that does not operate in conformance with state and federal civil rights and equal opportunity laws.(2) PROFITS. Contractors may earn only fair and reasonable profits under contracts for projects receiving SDWLP assistance. Profit included in a formally advertised, competitively bid, fixed price or unit price construction contract is presumed to be reasonable.(3) FINANCIAL ASSISTANCE RECIPIENT RESPONSIBILITY. The recipient is responsible for the administration and successful completion of the project as well as acceptance of the terms of the financial assistance agreement.(4) SOLICITATION OF DISADVANTAGED BUSINESS ENTERPRISES. (a) Whenever a recipient or its prime contractor is procuring construction, equipment, raw materials, or supplies for a project funded wholly or in part with SDWLP financial assistance, the recipient or contractor shall make a good faith effort to provide DBEs opportunities to compete for participation in the project. Recipients and their prime contractors shall comply with DBE regulations contained in 40 CFR part 33, as modified by memoranda and exceptions, in the manner required by the department. Failure to comply with DBE regulations and requirements may result in a sanction as provided under par. (b). Recipient and contractor efforts under this subsection may include any of the following activities: 1. Using outreach and recruitment activities to make DBEs aware of contracting opportunities, including any of the following activities: a. Including a sentence in bid advertisements that encourages DBEs to submit bids or proposals and submitting a copy of the advertisement to the department with evidence of publishing.b. Contacting DBEs via telephone, faxed or mailed letter, e-mail, or other methods of correspondence, informing the DBEs of the project and encouraging their participation, and submitting documentation of those contacts to the department.c. Advertising the project in trade publications and submitting a copy of the advertisement and evidence of publishing to the department.2. Arranging timeframes for contracts and establishing delivery schedules in a way that encourages and facilitates participation by DBEs in the competitive process, including posting solicitations for bids or proposals for at least 30 calendar days before the bid or proposal closing date, when possible.3. Dividing total project requirements into smaller tasks or quantities, when economically feasible, to permit maximum participation by DBEs in the competitive process.4. Considering contracting with a consortium of DBEs when a contract is too large for one DBE to handle individually.5. Using the services and assistance of the federal small business administration and the minority business development agency of the U.S. department of commerce.6. Using required federal forms when applicable.7. Including in project bidding documents DBE information prescribed by the department.8. Soliciting DBEs certified under the unified certification program or by the U.S. environmental protection agency or an agency approved by the U.S. environmental protection agency to certify DBEs and providing to the department documentation of solicitation efforts made. Note: The Wisconsin department of transportation unified certification program's list of certified DBEs is available online at https://wisconsindot.gov/Pages/doing-bus/civil-rights/dbe/certified-firms.aspx.
9. Documenting all participation of DBEs, including MBEs and WBEs, and submitting the documentation in the required form to the department. Documentation of all participation of DBEs under this subdivision includes documentation participation of engineering or other professional services firms, materials suppliers, equipment suppliers and contractors, and construction contractors that are certified DBEs as described in subd. 8.(b) Failure to comply with par. (a) may result in a sanction of up to 8 percent of the construction costs otherwise eligible for financial assistance being determined ineligible for financial assistance. This paragraph does not apply to a recipient that awards at least one contract directly related to the project to at least one MBE or WBE selected through proper solicitation methods.(5) FORCE ACCOUNT WORK. The department may approve financial assistance for force account work based on the applicant's certification that at least one of the following applies: (a) The applicant's staff has the necessary competence required to accomplish the work and can accomplish the required tasks more economically as force account work.(b) Emergency circumstances make force account work necessary.(6) CONTRACTS FOR PROFESSIONAL SERVICES. (a) The department may review professional services contracts and amendments for eligibility and reasonableness of costs. The department shall only provide financial assistance for costs that are eligible, necessary, and reasonable for the scored project.(b) Reasonableness reviews may include a comparison of professional services fees for the project to the range of professional services fees for similar work on similar projects undertaken within the state. The department may consider the scope of work, conditions unique to the project, and any other factors affecting costs.(c) Professional services contracts shall indicate a maximum estimated cost for a defined scope of work that the contractor may not exceed without a negotiated contract amendment for additional costs.(d) The department shall disburse funds for professional services costs in excess of the estimated or not-to-exceed amount of a contract only after the applicant submits an amendment to the contract that includes signatures of all parties to the contract, a description of the additional work covered by the amendment, and a revised not-to-exceed amount.(e) The recipient shall submit each professional services agreement amendment within 90 days of execution of the amendment, or, for amendments executed prior to submittal of the SDWLP application, with the application submittal. The department may deny the costs included in the amendment if the recipient does not submit the amendment within the timeframes specified in this paragraph.(7) CONSTRUCTION CONTRACTS AND SUBCONTRACTS. (a)Applicability. This subsection applies to construction contracts or subcontracts awarded by recipients for any construction activity. The department may provide SDWLP financial assistance for costs of a construction contract if the municipality complies with all applicable procurement laws in obtaining the construction contractor.(b)Type of contract. The scored project work shall be performed under one or more contracts awarded by the recipient to private firms except for force account work authorized under sub. (5). Unless the department gives advance written approval for the recipient to use some other acceptable type of contract, each contract shall be one of the following types or a combination of these types: lump sum, unit price, or time and expense. A cost-plus-a-percentage-of-cost type contract may not be used in any circumstance.(c)Contract change orders.1. The recipient shall secure a fair and reasonable price for each contract change order.2. The recipient shall promptly and no later than 90 days after execution of the change order submit to the department construction management engineer each change order and all associated backup documentation.3. If a change order is executed fewer than 90 days but no more than 9 weeks prior to the estimated loan closing date for the project, the recipient shall submit the change order to the department promptly after execution and no later than 9 weeks prior to the loan closing in order to have the impact of the change order on the contract reflected in the financial assistance agreement budget.4. The department may deny the costs of the change order if the recipient does not submit the change order to the department within the timeframes specified in subds. 2. and 3.5. If the recipient is in the process of negotiating a change order, has a change order pending execution, or executes a change order less than 9 weeks but no more than 3 weeks prior to the estimated loan closing date, the recipient shall provide information regarding the purpose of and likely cost for the change order in writing to the department construction management engineer or loan project manager for consideration of inclusion in the financial assistance agreement budget.6. The recipient shall submit for approval by the department all change orders for all contracts included in whole or in part in a project funded under this chapter.7. The recipient shall receive the department construction management engineer's approval of the costs included in the change order prior to submitting to the department a request for disbursement of funds for costs of the change order.Wis. Admin. Code Department of Natural Resources NR 166.11
CR 06-023: cr. Register May 2007 No. 617, eff. 6-1-07.Amended by, CR 14-044: cr. Register June 2015 No. 714, eff.7/1/2015.Adopted by, CR 22-068: cr. Register October 2023 No. 814, eff. 11/1/2023