94-376 C.M.R. ch. 595, § F - Building Phase

1. Awarding Construction Contracts . The Eligible Applicant shall be responsible for assuring that all procedures and legal requirements are observed in advertising for bids, Request for Qualifications, and Request for Proposals, and in awarding the construction contract. The text of the construction contract shall not vary from the text of the copy submitted to the Department. The Department may approve the award of construction contracts using any of the four delivery methods outlined below in Subsections F(1)(a)-(c).

(a) Design-Bid-Build (DBB) Contracts:

(i) A DBB Contract shall be competitively bid;

(ii) Prior to advertising, the Eligible Applicant shall submits to the Department the Plans and Specifications approved in accordance with subsection D(3) of this rule (relating to approval of Plans and Specifications); and

(iii) Submittals for Contract Award for DBB Contracts. Prior to contract award, the Eligible Applicant shall submit for approval to the Department the following documents:

(AA) A tabulation of all bids received and an explanation for any rejected bids or otherwise disqualified bidders;

(BB) The proposed low bid proposal;

(CC) A certification that all required acquisitions, leases, easements, right-of-way, relocations, (both voluntary and involuntary) have been obtained for the Project to be built;

(DD) Documentation of MBE/WBE efforts by the proposed low bid contractor, if applicable;

(EE) A notice of intent to award;

(FF) Evidence of public advertising; and

(GG) A Project budget.

(b) Construction Management At-Risk (CMAR) and Progressive Design-Build (PDB) Contracts (Phase 1 and Phase 2) (This section applies to both delivery methods):

(i) Phase 1: CMAR and PDB Selection Phase:

(AA) The CMAR firm or the PDB firm is selected through a Qualifications Based Selection (QBS) process;

(BB) Prior to advertising for the Request For Qualifications (RFQ), the Eligible Applicant shall submit for approval to the Department:

(i) For PDB: A preliminary scope of work for the PDB firm and a detailed description of the Project goals and objectives; or

(ii) For CMAR: Plans and Specifications (generally not more than 10-30% complete) in accordance with subsection D(3); and

(iii) The RFQ.

(CC) Submittals for Award of Construction Management At-Risk and Progressive Design-Build Contracts. Prior to contract award, the Eligible Applicant shall submit for approval to the Department the following documents:

(i) A certification that all required acquisitions, leases, easements, right-of-way, relocations, (both voluntary and involuntary) have been obtained for the Project to be built;

(ii) A tabulation of the firms that responded to the RFQ and the Eligible Applicant's scoring of them in the evaluation process;

(iii) The selected firm's proposal;

(iv) A notice of intent to award;

(v) Evidence of public advertising; and

(vi) A Project budget.

(ii) Phase 2: Construction Phase

(AA) Construction trade subcontracted packages are competitively bid by subcontractors (typically pre-qualified). The contracted CMAR or PDB firm may bid on trade packages;

(BB) Prior to advertising of construction trade subcontract packages, the Eligible Applicant shall submits to the Department the Plans and Specifications (generally not more than 60% complete) approved in accordance with subsection D(3) of this rule (relating to approval of Plans and Specifications); and

(CC) Submittals for Award of Phase 2 CMAR or PDB Contract (or Contract Amendment). Prior to contract (or contract amendment) award, the Eligible Applicant shall submit for approval to the Department the following items;

(i) A tabulation of all construction trade subcontract proposals received and an explanation for any rejected proposals or otherwise disqualified bidders;

(ii) A notice of intent to award;

(iii) Evidence of public advertising; and

(iv) A Project budget.

(DD) Prior to each phase of the construction, the Eligible Applicant shall submit to the Department the final Plans and Specifications, upon completion by the PDB firm or the engineer of record for a CMAR Project.

(EE) During the construction phase, the selected CMAR or PDB firm will document its MBE/WBE efforts and submit its compliance plan to the Department for approval.

(FF) The Eligible Applicant shall submit for approval to the Department the firm fixed price or if applicable, all CMAR guaranteed maximum price proposals.

(c) Fixed Price Design-Build (FPDB) Contracts:

(i) The Fixed Price Design-Build firm is selected through a Request for Proposal (RFP) process. This may be conducted in either a single step (combined RFQ/RFP) or a two-step process where a RFQ is used to pre-qualify firms for proposals;

(ii) Prior to advertising for the RFP, the Eligible Applicant shall submit for approval to the Department:

(AA) Preliminary Plans and Specifications (generally not more than 10-30% complete) in accordance with subsection D(3); and

(BB) The RFP, which must contain a cost component. The weight of the cost component in the evaluation process is specific to the Project and is established by the Eligible Applicant.

(iii) Submittals for Contract Award for FPDB contract. Prior to contract award, the Eligible Applicant shall submit for approval to the Department the following documents:

(AA) A certification that all required acquisitions, leases, easements, right-of-way, relocations, (both voluntary and involuntary) have been obtained for the Project to be built;

(BB) A tabulation of the firms that responded to the RFP and the Eligible Applicant's scoring for them in the evaluation process;

(CC) The selected firm's proposal;

(DD) A notice of intent to award;

(EE) Evidence of public advertising; and

(FF) A Project budget.

(iv) Prior to each phase of the construction, the Eligible Applicant shall submit to the Department the final Plans and Specifications, upon completion by the FPDB firm.

(v) During the Construction Phase, the selected FPDB firm will document its MBE/WBE efforts and submit its compliance plan to the Department for approval.

(d) Executed Documents. Within 15 days of contract signing, the Eligible Applicant shall submit to the Department a copy of the executed documents containing the executed contract agreement, executed bonds, insurance certificates, act of assurance, wage rates, notice to proceed and any other documents required by subsection D(2) of this Chapter (relating to Plans and Specifications).

2. Force Account and Non-Competitive Procurement

(a) Force Account. All significant elements of the Project will be performed with skilled personnel hired through one of the four construction delivery methods, F(1)(a)-(c). However, the Department may approve the use of Force Account for design, inspection and/or construction when the Eligible Applicant demonstrates that it possesses the necessary competence required to accomplish such work and that the work can be accomplished more economically by the use of the Force Account method, or emergency circumstances dictate its use.

(b) Competitive Bidding will not be required for direct Eligible Applicant purchases for proprietary equipment and for sole source procurement with prior Department approval. The Eligible Applicant must justify the purchase of proprietary equipment and demonstrate a compelling need for sole source procurement, such as matching existing equipment, to obtain Department approval.

3. Inspection During Construction .After the construction contract is awarded, the Eligible Applicant shall provide for adequate inspection of the Project and require his/her assurance that the work is being performed in a satisfactory manner in accordance with the approved Plans and Specifications, approved alterations, and in accordance with sound engineering principles and building practices. The Department is authorized to inspect the Project at any time during construction in order to assure that Plans and Specifications are being followed and that the Project is being built in accordance with sound engineering principles and building practices. Such inspection, however, shall never subject the State of Maine to any liability or action for damages. The Department shall notify the Eligible Applicant and the Project Engineer of any variances from the approved Plans and Specifications. Upon notification, the Eligible Applicant and the Project Engineer shall immediately initiate any necessary corrective action.

4. Audits .The Department is authorized to and may conduct engineering audits. The Bank is authorized to and may conduct financial and program audits of every Project that is financed in whole or in part by SRF funds. Each recipient of Financial Assistance from the Bank shall provide the Bank with annual audited financial statements prepared by a professional accountant or accounting firm. For purposes of this section, the following definitions are applicable:

(a) Financial audit. A review of all files for historical background for the Project, a visit to the Project offices or site to gather sufficient information to perform a detailed review of documents which substantiate the Project expense, a tabulation of expenses, and the issuance of an audit report establishing that expenses financed from the fund are or are not in conformance with terms and provisions of loan documents.

(b) Engineering audit. A physical inspection of the Project to analyze the Project and compare it with the approved Plans and Specifications, and the issuance of an inspection report which finds the Project in compliance with the Plans and Specifications or which outlines any variances from the construction contract and approved Plans and Specifications and which recommends corrective action.

(c) Program audit. A review of all files and records to determine and ensure compliance with Title VI of the FWPCA in order to be eligible for and comply with the terms of any Financial Assistance provided by the Bank.

5. Alterations in Approved Plans and Specifications .If, after the Department approves the Plans and Specifications, it becomes apparent that changes are necessary, a change order and justification must be submitted to the Department for review and approval. Any change in previously approved Plans and Specifications may not alter the basic purpose or effect of a Project. When possible, such a change order must be submitted well in advance of the proposed alteration. The Department must receive a written copy of all change orders. If there is immediate danger to life or property, tentative approval of change orders may be secured via telephone and confirmed by letter. A request for a change order should contain sufficient information, including plans or drawings and cost estimates for review of the proposal. After approval of the proposed alterations, copies of the approved change order must be forwarded to the Project Engineer. If a proposed change order would exceed 50% of the cost of the original contract, the work must be put out to bid as a separate contract.

6. Contractor Bankruptcy .In the event of a contractor bankruptcy, any agreements regarding any settlement proposed to be entered into with the bonding company (other than a bonding company serving as general contractor or fully bonding another contractor acting as their agent) must be submitted for approval by the Department. All Project contractors must be bonded. The Eligible Applicant is responsible for assuring that all procedural and legal requirements are observed in advertising for bids and awarding a construction contract.

7. Building Phase Submittals .During the building phase of the Project, the Eligible Applicant shall submit or perform the following:

(a) User Charge System and Sewer Use Ordinance. Prior to placing a Treatment Works into operation, if applicable, the Eligible Applicant shall adopt its user charge system and sewer use ordinance and submit a copy of each for the Department's approval. Further, the loan recipient shall implement the user charge system for the useful life of the Project;

(b) Operation and Maintenance Manual. For new Treatment Works or major upgrades, a final operation and maintenance manual will be submitted for the Department's approval prior to placing the Treatment Works or major upgrades into operation;

(c) As Built Drawings. A complete set of as-built drawings will be submitted to the owner upon completion of all construction;

(d) Substantial Completion and Initiation of Operation Dates. Certificates of Substantial Completion and notification of Initiation of Operation dates shall be submitted to the Department upon completion of Project construction; and

(e) Other Submittals. Any other Building phase submittals required as part of the loan documents shall be submitted to the Department for its approval.

8. Progress Payments .Disbursements from the Construction Fund established by the Bank require approval by the Department and the Bank. Certified requests for payment may be submitted monthly, or less frequently for small contracts, on forms provided by the Department. Upon approval by the Department, the request will be forwarded to the Bank to authorize progress payments from the SRF Construction Fund for the Project and in turn to the designated account established by the applicant.

9. Retainage .Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as the Project Engineer may determine or the Eligible Applicant may withhold, including but not limited to liquidated damages:

(a) 95 percent of work completed (with the balance being retainage); and

(b) 95 percent of cost of materials and equipment not incorporated in the work (with the balance being retainage).

Upon Substantial Completion, the Eligible Applicant shall pay an amount sufficient to increase total payments to the contractor to 98 percent of the work completed, less such amounts as the Project Engineer shall determine in accordance with the specifications. The remaining 2 percent retainage may be held for one year after Substantial Completion and retained by the Bank. This provision may be waived on Projects co-funded with other funding agencies whose retainage policies conflict, on Projects with interim financing or refinancing, or on a case by case basis when the Eligible Applicant presents a compelling case against this provision.

10. Claims or Disputes .All claims or disputes between the owner and the contractor must be settled in accordance with general and supplementary conditions required by the Department and made part of the Plans and Specifications.

11. Documents .All documents provided to either the Bank or the Department must be available to both the Bank and the Department.

Notes

94-376 C.M.R. ch. 595, § F