a) This condition shall apply to construction
contracts (subagreements) awarded by recipients of Step 3 or Step 2 and 3
projects only, except that it shall not apply to personal and professional
service contracts, for which see General Condition Section
360.303,
(Contracts for Personal and Professional Services - Consulting Engineering
Agreements) below.
b) The project
work shall be performed under one or more contracts awarded by the grantee to
private firms, except for force account work authorized by the
Agency.
c) Each contract shall be
either a fixed-price (lump sum) contract or fixed-rate (unit price) contract,
or a combination of the two, unless the Agency gives advance written approval
for the grantee to use some other acceptable type of contract. The cost-plus-a
percentage of cost type of contract shall not be used.
d) Each contract shall be awarded after
formal advertising, unless negotiation is permitted in accordance with General
Condition Section
360.301(m),
(Negotiation of Subagreements) above. Formal advertising shall be in accordance
with the following:
1) Adequate public notice
The applicant will cause adequate notice to be given of the
solicitation by publication in newspapers or journals of general circulation,
beyond the applicant's locality (statewide, generally) inviting bids on the
project work, and stating the method by which bidding documents may be obtained
and examined. Where the estimated prospective cost of Step 3 construction is
ten million dollars or more, such notice must generally by published in trade
journals of nationwide distribution. The applicant should in addition solicit
bids directly from bidders, if it maintains a bidders list.
2) Adequate time for preparing bids
Adequate time, generally not less than 30 days, must be
allowed between the date when public notice pursuant to paragraph (1) of this
section is first published and the date by which bids must be submitted.
Bidding documents (including specifications and drawings) shall be available to
prospective bidders from the date when such notice is first published.
3) Adequate bidding documents
A reasonable number of bidding documents (invitations for
bid) shall be prepared by the grantee and shall be furnished upon request on a
first-come, first-served basis. A complete set of bidding documents shall be
maintained by the grantee and shall be available for inspection and copying by
any party. Such bidding documents shall include:
A) A complete statement of the work to be
performed, including necessary drawings and specifications, and the required
completion schedule. (Drawings and specifications may be made available for
inspection instead of being furnished.);
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;
D) Responsibility requirements or criteria
which will be employed in evaluating bidders; Provided, That an experience
requirement or performance bond may not be utilized unless adequately justified
under the particular circumstances by the applicant;
E) The following statement:
Any contract awarded under this Invitation for Bids is
expected to be funded in part by a grant from the Illinois Anti-Pollution Bond
Fund. Neither the State of Illinois nor any of its departments, agencies or
employees is or will be a party to this Invitation for Bids or any resulting
contract;
F) A copy of this
General Solution Section 360.302(d)(3)(F) in the proposal form to be used by
bidders, which shall, unless deleted by a bidder, constitute a representation
and certification to be considered as a part of his bid. This General Condition
Section 360.302(d)(3)(F) shall also constitute a statement that a bid will not
be considered for award where Section 360.302(d)(3)(G)(i), (d)(3)(G)(iii),
below has been omitted or modified. Where Section 360.302(d)(3)(G)(ii) has been
deleted or modified, the bid will not be considered for award unless the bidder
furnishes with the bid a signed statement which sets forth in detail the
circumstances of the disclosure and the Director of the Agency, or his
designee, determines that such disclosure was not made for the purpose of
restricting competition:
G) By
submission of the bid, each bidder certifies, and in the case of a joint bid
each party thereto certifies as to his own organization, that in connection
with the bid:
i) The prices in the bid have
been arrived at independently, without consultation, communication, or
agreement, for the purpose of restricting competition, as to any matter
relating to such prices with any other bidder or with any competitor;
ii) Unless otherwise required by law, the
prices which have been quoted in the bid have not knowingly been disclosed by
bidder, prior to opening, directly or indirectly to any other bidder or to any
competitor; and
iii) No attempt has
been made or will be made by the bidder to induce any other person or firm to
submit or not to submit a bid for the purpose of restricting
competition.
H) Each
person signing the bid shall certify that:
i)
He is the person in the bidder's organization responsible within that
organization for the decision as to the prices being bid and that he has not
participated, and will not participate, in any action contrary to Section
360.302 (d)(3)(G)(i-iii) above; or
ii) He is not the person in the bidder's
organization responsible within that organization for the decision as to the
prices being bid but that he has been authorized to act as agent for the
persons responsible for such decision in certifying that such persons have not
participated, and will not participate, in any action contrary to Section
360.302 (d)(3)(G)(i-iii) above, and as their agent shall so certify; and shall
also certify that he has not participated, and will not participate, in any
action contrary to Section 360.302 (d)(3)(G)(i-iii) above; and
I) A copy of all the general
conditions, special conditions, assurances, agreements and terms of the grant
offer.
4) Sealed Bids
The grantee shall provide for bidding by sealed bid and for
the safeguarding of bids received until public opening.
5) Amendments to bidding documents
If the grantee desires to amend any part of the bidding
documents (including drawings and specifications) during the period when bids
are being prepared, the amendments shall be communicated in writing to all
firms who have obtained bidding documents in time to be considered prior to the
bid opening time; when appropriate, the period for submission of bids shall be
extended.
6) Bid
modifications
A firm which has submitted a bid shall be allowed to modify
or withdraw its bid prior to the time of bid opening.
7) Public opening of bids
The grantee shall provide for a public opening of bids at the
place, date and time announced in the bidding documents.
8) Award to the low responsive, responsible
bidder.
A) After bids are opened, they shall
be evaluated by the grantee in accordance with the methods and criteria set
forth in the bidding documents.
B)
The grantee may reserve the right to reject all bids. Unless all bids are
rejected, award shall be made to the low, responsive, responsible bidder after
the bid evaluation has been submitted to the Agency and written notice of
Agency approval has been received by the grantee.
C) If award is intended to be made to a firm
which did not submit the lowest bid, a written statement shall be prepared
prior to any award and retained by the grantee explaining why each lower bidder
was deemed not responsive or not responsible.
D) Local laws, ordinances, regulations or
procedures which are designed or operate to give local or in-state bidders
preference over other bidders shall not be employed in evaluating
bids.
e)
Negotiations of contract amendments (change orders)
1) Grantee responsibility
The grantee is responsible for negotiation of construction
contract change orders. This function may be performed by the grantee directly
or, if authorized, by his consulting engineer. During negotiations the
contractor shall:
A) Make clear that
the contractor has a clear understanding of the scope and extent of work and
other essential requirements;
B)
Assure that the contractor demonstrates that he will make available or will
obtain the necessary personnel, equipment and materials to accomplish the work
within the required time; and
C)
Assure a fair and reasonable price for the required work.
2) Changes in unit price or time
The contract price or time may be changed only by a change
order. When negotiations are required, they shall be conducted in accordance
with paragraph Section 360.302(e) of this General Condition, as appropriate.
The value of any work covered by a change order or of any claim for increases
or decrease in the contract price shall be determined by the method set forth
in Section 360.302(e)(2)(A-C) below which is most advantageous to the
grantee.
A) Unit prices
i) Original bid items: Unit prices previously
approved are acceptable for pricing changes of original bid items. However,
when changes in quantities exceed 15 percent of the original bid quantity and
the total dollar change of that bid item is significant, the unit price shall
be reviewed by the grantee to determine if a new unit price should be
negotiated.
ii) New items: Unit
prices of new items shall be negotiated.
B) A lump sum to be negotiated.
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 be agreed upon to cover the cost of general overhead and profit to be
negotiated.
3)
For each change order not in excess of $100,000 the contractor shall submit
sufficient cost and pricing data to the grantee to enable the grantee to
determine the necessity and reasonableness of costs and amounts proposed, and
the allowability and eligibility of costs proposed.
4) For each change order in excess of
$100,000, the contractor shall submit to the grantee for review sufficient cost
and pricing data to enable the grantee to ascertain the necessity and
reasonableness of costs and amounts proposed, and the allowability and
eligibility of costs proposed. Such data shall include:
A) As a minimum, proposed change order costs
shall be presented in summary format as prescribed by the Agency and shall be
supported by a certification executed by the contractor that proposed costs
reflect complete, current and accurate cost and pricing data applicable to the
data of the change order.
B) In
addition to the specific elements of cost, the estimated amount of profit shall
be set forth separately in the cost summary for fixed price change orders and a
specific total dollar amount of profit will be set forth separately in the cost
summary for cost reimbursement change orders.
C) More detailed cost data than that required
by the summary format may be required by the grantee format may be required by
the grantee to substantiate the reasonableness of proposed change order
costs.
D) Allowability of costs for
change orders shall be determined in accordance with General Condition Section
360.801,
(Determination of Allowable Costs) below.
E) For costs under cost reimbursement change
orders, the contractor shall have an accounting system which accounts for such
costs in accordance with generally accepted accounting principles. This system
shall provide for the identification, accumulation, and segregation of
allowable and unallowable change orders. Allowable change order costs shall be
determined in accordance with General Condition Section 360.801, (Determination
of Allowable Costs), below. The contractor shall propose and account for such
costs in a manner consistent with his normal accounting procedures.
F) Change orders awarded on the basis of
review of a cost element summary and a certification of complete, current, and
accurate cost and pricing data shall be subject to downward renegotiation or
recoupment of funds where subsequent audit substantiates that such
certification was not based on complete, current and accurate cost and pricing
data and on costs allowable under these General Conditions at the time of the
change order execution.
5) Agency review
Prior to the execution of any change order in excess of
$100,000, the grantee shall submit to the Agency for its review:
A) The cost and pricing data submitted by the
contractor;
B) A certification of
review and acceptance of the contractor's cost or price; and
C) A copy of the proposed change
order.
6) Profit
For the purpose of negotiated change orders to construction
contracts under Agency grants, profit is defined as the net proceeds obtained
by deducting all allowable costs (direct and indirect) from the price. The
estimate of profit is to be reviewed by the grantee as are all other elements
of price.
7) Related work
Related work shall not be split into two amendments or change
orders merely to keep it under $100,000 and thereby avoid the requirements of
this General Condition. For change orders which include both additive and
deductive items:
A) If any single item
(additive or deductive) exceeds $100,000, the requirements of Section
360.302(e)(4) hereof shall be applicable.
B) If no single additive or deductive item
has a value of $100,000, but the total price of the change order is over
$100,000, the requirements of Section 360.302(e)(4) hereof shall be
applicable.
C) If the total of
additive items of work in the change order exceeds $100,000, or the total of
deductive items of work in the change order exceeds $100,000, and the net price
of the change order is less than $100,000, the requirements of Section
360.302(e)(4) hereof shall apply.
f) Progress payments to contractors
1) Policy
Except as may be otherwise required by applicable state law,
prompt progress payments shall be made by grantees to prime contractors and by
prime contractors to subcontractors and suppliers for eligible construction,
material, and equipment costs, including those of undelivered specifically
manufactured equipment, incurred under a contract under an Agency construction
grant.
2) Protection of
progress payments made for specifically manufactured equipment
The grantee shall assure protection of the State's interest
in progress payments made for specifically manufactured equipment. This
protection must be in a manner or form acceptable to the grantee and shall take
the form of recordation under the Uniform Commercial Code adequate to protect
the interest of the grantee and the State.
3) Limitations on progress payments
In no case may progress payments for undelivered equipment or
items be made in any amount greater than seventy-five percent of the cumulative
incurred costs allocable to contract performance with respect to the
undelivered equipment or items. Submission of a request for any such progress
payments shall be accompanied by a certification furnished by the fabricator of
the equipment or item that the amount of progress payment claimed constitutes
not more than seventy-five percent of cumulative incurred costs allocable to
contract performance, and in addition, in the case of the first progress
payment request, a certification that the amount claimed does not exceed 15
percent of the contract or item price quoted by the fabricator.
4) A subcontractor or supplier
which is determined by the Agency to have frustrated the intent of the
provisions regarding progress payments for major equipment or specifically
manufactured equipment through failure to deliver the equipment may be
determined nonresponsible and ineligible for further work under Agency
grants.
5) Contract provisions
Where applicable, appropriate provisions regarding progress
payments must be included in each contract and subcontract.
6) The foregoing progress payments policy
should be implemented in invitations for bids under Step 3 grants.
g) Retention from progress
payments
1) The grantee may retain a portion
of the amount otherwise due the contractor. Except as provided in subsection
(D) below, the amount retained by the grantee shall be limited to the
following:
A) Withholding of not more than 10
percent of the payment claimed until the work is 50 percent complete.
B) When work is 50 percent complete,
reduction of the withholding to 5 percent of the dollar value of all work
satisfactorily completed to date; Provided that the contractor is making
satisfactory progress and there is no specific cause for greater
withholding.
C) When the work is
substantially complete (operational or beneficial occupancy), the withheld
amount shall be further reduced below 5 percent to only the amount necessary to
assure completion.
D) The grantee
may reinstate up to 10 percent withholding if the grantee determines, at its
discretion, that the contractor is not making satisfactory progress or there is
other specific cause for such withholding.
2) The foregoing retention policy shall be
implemented with respect to all Step 3 projects for which plans and
specifications are approved after July 1, 1976. Appropriate provision to assure
compliance with this policy shall be included in the bid documents for such
projects initially or by addendum prior to the bid submission date, and as a
special condition in the grant agreement or in a grant amendment. For all
previous active projects, the foregoing policy may be implemented by the
grantee through contract amendment upon written request to the grantee by the
contractor upon consideration upon consideration which the grantee deems
adequate.
3) A grantee who delays
disbursement of grant funds may be required to credit to the State all interest
earned on those funds.
h) Required construction contract provisions
Each construction contract shall include the "General
Conditions" of the "Contract Documents for Construction of Federally Assisted
Water and Sewer Projects," a copy of which is included as Appendix A to these
General Conditions. In addition, each construction contract entered into after
July 1, 1976, shall include the following provisions:
1) Audit; access to records:
A) The contractor shall maintain books,
records, documents and other evidence directly pertinent to performance on
grant work under this agreement in accordance with accepted business practices,
appropriate accounting procedures and practices, and the requirements which
would be applicable to a federal grant under the Federal Water Pollution
Control Act Amendments of 1972 (
33 U.S.C.
1251, et seq., PL 92-500 ). The Contractor
shall also maintain the financial information and data used by the Contractor
in the preparation or support of any cost submissions required under General
Condition Section 360.302(e), (Negotiation of Contract Amendments, Change
Orders) and a copy of the cost summary submitted to the owner. The Auditor
General, the owner, the Agency, or any of their duly authorized representatives
shall have access to such books, records, documents, and other evidence for the
purpose of inspection, audit, and copying. The contractor will provide proper
facilities for such access and inspection.
B) If this contract is a formally advertised,
competively awarded, fixed price contract, the contractor agrees to apply
paragraphs (i) through (vi) of this subsection (A) applicable to all negotiated
change orders and contract amendments in excess of $10,000 which affect the
contract price. In the case of all other prime contracts, the contractor agrees
to include paragraphs (i) through (vi) of this Section Section 360.302(h)(A) in
all his contracts and all tier subcontracts or change orders thereto directly
related to project performance which are in excess of $10,000.
C) Audits conducted pursuant to this
provision shall be in accordance with generally accepted auditing standards and
established procedures and guidelines of the reviewing or auditing
agencies.
D) The contractor agrees
to the disclosure of all information and reports resulting from access to
records pursuant to paragraphs (i) and (ii) above, to any of the agencies
referred to in paragraph (i) above. Where the audit concerns the contractor,
the auditing agency will afford the contractor an opportunity for an audit exit
conference and an opportunity to comment on the pertinent portions of the draft
audit report. The final audit report will include the written comments, if any,
of the audited parties.
E) Records
under paragraphs (i) and (ii) above shall be maintained and made available
during performance on Agency grant work under this agreement and until three
years from the date of final grant payment for the project. In addition, those
records which relate to any dispute or litigation or the settlement of claims
arising out of such performance, or costs or items to which an audit exception
has been taken, shall be maintained and made available until three years after
the date of resolution of such dispute, appeal, litigation, claim, or
exception.
F) The right of access
conferred by this clause will generally be exercised (with respect to financial
records) under
i) negotiated prime
contracts,
ii) negotiated change
orders or contract amendments in excess of $10,000 affecting the price of any
formally advertised, competively awarded, fixed price contract, and
iii) subcontracts or purchase orders under
any contract at other than a formally advertised, competitively awarded, fixed
price contract.
G)
However, this right of access will generally not be exercised with respect to a
prime contract, subcontract, or purchase order awarded after effective price
competition. In any event, such right of access may be exercised under any type
of contract or subcontract:
i) with respect
to records pertaining directly to contract performance, excluding any financial
records of the contractor, and
ii)
if there is any indication that fraud, gross abuse, or corrupt practices may be
involved.
2)
Price reduction for defective cost or pricing data.
A) This clause is applicable only to:
i) any negotiated prime contract in excess of
$10,000;
ii) negotiated contract
amendments or change orders in excess of $100,000 affecting the price of a
formally advertised, competitively awarded, fixed price contract; or
iii) any subcontract or purchase order in
excess of $100,000 under a prime contract other than a formally advertised,
competitively awarded, fixed price contract.
B) However, this clause is not applicable for
contracts or subcontracts to the extent that they are awarded on the basis of
effective price competition. The owner may elect not to utilize this clause
where any such negotiated contract or subcontract is $100,000 or
less.
C) If the Agency determines
that any price (including profit) negotiated in connection with this contract,
or any cost reimbursable under this contract, was increased by any significant
sums because the contractor or any subcontractor furnished incomplete or
inaccurate cost or pricing data or data not current as certified in his
certification of current cost or pricing data, then such price or cost or
profit shall be reduced accordingly and the contract shall be modified in
writing to reflect such reduction.
D) Failure to agree on a reduction shall be
subject to Article 30 (Arbitration) of the General Conditions of this
Contract.
3) Covenant
against contingent fees
The contractor warrants that no person or selling agency has
been employed or retained to solicit or secure this contract upon an agreement
or understanding for a commission, percentage, brokerage, or contingent fee.
For breach or violation of this warranty the owner shall have the right to
annul this contract without liability or in its discretion to deduct from the
contract price or consideration, or otherwise recover, the full amount of such
commission, percentage, brokerage, or contingent fee.
4) Gratuities
A) The owner may, by written notice to the
contractor, terminate the right of the contractor to proceed under this
contract if it is found, after notice and hearing, by the owner that gratuities
(in the form of entertainment, gifts, or otherwise) were offered or given by
the contractor or any agent or representative of the contractor, to any
official or employee of the owner or of the State of Illinois with a view
toward securing a contract or securing favorable treatment with respect to the
awarding or amending, or the making of any determinations with respect to the
performance of this contract: Provided, that if the existence of the facts upon
which the owner makes such findings are in issue, they may be reviewed in
proceedings pursuant to Article 30 (Arbitration) of the General Conditions of
this contract.
B) In the event this
contract is terminated as provided in Section 360.302(h)(i) hereof, the owner
shall be entitled:
i) to pursue the same
remedies against the contractor as it could pursue in the event of a breach of
the contract by the contractor, and
ii) as a penalty in addition to any other
damages to which it may be entitled by law, to exemplary damages in an account
(as determined by the owner) which shall be not less than three nor more than
ten times the costs incurred by the contractor in providing any such gratuities
to any such officer or employee.
C) The rights and remedies of the owner
provided in this clause shall not be exclusive and are in addition to any
rights and remedies provided by law or under this contract.
i) Subcontracts under
construction contracts
The award or execution of all subcontracts by a prime
contractor and the procurement and negotiation procedures used by such prime
contractor in awarding or executing such subcontracts shall comply with:
A) All provisions of State and local
law;
B) All provisions of these
General Conditions with respect to fraud and other unlawful or corrupt
practices; and
C) All provisions of
these General Conditions with respect to access to facilities and records and
audit of records.
