W. Va. Code R. § 47-31-5

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-31-5 - Program Requirements

5.1. General Requirements.

5.1.a. The applicant shall request a pre-application meeting with the Secretary to discuss the requirements of the program. A pre-application package, in a form prescribed by the Instrumentality, shall be completed and submitted to the Secretary prior to this meeting.

Note: The review and approval by the Secretary of facilities plans, design drawings and specifications, or other documents is for administrative purposes only and does not relieve the applicant or his agents and employees from properly planning, designing, constructing, operating, and maintaining the project as required under applicable federal and state statutes and regulations.

5.1.b. The applicant shall demonstrate to the Secretary that he has the financial, institutional, legal, and managerial capabilities to ensure adequate construction, operation, and maintenance of the treatment works. As a part of this demonstration, the applicant shall complete and submit to the Secretary financial capability worksheets supplied by the Instrumentality.

5.1.c. If the project will serve or involve two (2) or more legal entities, the applicant shall submit an intermunicipal agreement to the Secretary in a form prescribed by the Instrumentality.

5.1.d. An adequate user charge system shall be developed by the applicant and submitted to the Secretary for approval.

5.1.e. A sewer use ordinance shall be developed by the applicant and submitted to the Secretary for approval.

5.2. Procurement Standards.

5.2.a. Procurement Responsibilities.

5.2.a.1. The local entity is responsible for the settlement and satisfactory completion of all contractual obligations in accordance with sound business judgment and good administrative practices.

5.2.a.2. The local entity shall maintain a system to assure that contractors perform in accordance with the terms, conditions, and specifications of their contracts.

5.2.a.3. The local entity shall review its proposed procurement actions in order to avoid unnecessary or duplicated actions.

5.2.a.4. The local entity shall follow all applicable procurement procedures set forth in the West Virginia Code.

5.2.b. Minor Procurement Actions.

5.2.b.1. The recipient may use small purchase procedures set forth in the West Virginia Code in lieu of the procedures set forth in subdivision 5.2.c of this rule when undertaking a minor procurement action.

5.2.b.2. If the recipient chooses to use the small purchase procedures, he shall contact no fewer than three (3) vendors with a request for proposals. This request may be tendered by letter or by telephone; however, all requests made via telephone calls shall be documented in writing.

5.2.b.3. The recipient shall not divide a procurement action into smaller parts in order to avoid compliance with the procedures set forth in subdivision 5.2.c of this rule.

5.2.b.4. The awarding of the contract in a minor procurement action shall be made to the lowest, responsive, responsible bidder.

5.2.c. Major Procurement Actions.

5.2.c.1. Applicability. -- The requirements of subdivision 5.2.c of this rule apply to all major procurement actions except as provided in subdivisions 5.2.d and 5.2.e of this rule.

5.2.c.2. Formal Advertising. -- The formal advertising method shall be used in major procurement actions. At a minimum, formal advertising shall include a complete, adequate, and realistic specification or purchase description of what is required.

5.2.c.3. Public Notice. -- Public notice of the solicitation of bids shall be provided for major procurement actions.

5.2.c.3.A. The public notice shall be provided by means of a Class II legal advertisement. Publication in a professional journal, direct letter solicitation, or a combination of these methods is also recommended.

5.2.c.3.B. The public notice shall include a statement of when and how the bidding documents may be obtained or examined.

5.2.c.3.C. A minimum of thirty (30) days shall be provided between the date on which the public notice was initially published and the date on which bidding closes.

5.2.c.3.D. The local entity shall publicly open bids at the place, date, and time announced in the bidding documents.

5.2.c.4. Bidding Documents. -- Bidding documents shall include:

5.2.c.4.A. A complete statement detailing the work to be performed including, where appropriate, design drawings and specifications and the required performance schedule;

5.2.c.4.B. The terms and conditions of the contract to be awarded including payment terms, delivery schedules, point of delivery, and acceptance criteria;

5.2.c.4.C. A clear explanation of the method of bidding, the method of evaluating bid prices, and the basis and method for awarding the contract;

5.2.c.4.D. All other responsibility requirements or evaluation criteria which will be used in the evaluation of the bids received;

5.2.c.4.E. The prevailing wage determination made under the West Virginia Division of Labor: and

5.2.c.4.F. The deadline for the receipt of bids and the address to which bids are to be submitted.

5.2.c.4.G. Reference to the provisions in W.Va. Code § 21-11-11; and

5.2.c.4.H. All other federal verbage required.

5.2.c.5. Awarding of Contracts. -- All bids shall be evaluated in accordance with the methods and criteria set forth in the bidding documents. The awarding of a contract shall be made to the lowest, responsive, responsible bidder. All of the tendered bids may be rejected only when sound, documented business reasons exist in support of that rejection.

5.2.d. Competitive Negotiation for Subagreements.

5.2.d.1. Applicability. -- The requirements of subdivision 5.2.d.4.of this rule apply to all subagreements in excess of the amount specified in 148CSR1.

5.2.d.2. Request for Proposals. -- A request for proposals shall be provided for competitively- negotiated subagreements.

5.2.d.2.A. The request for proposals shall be provided by means of a Class II legal advertisement. Publication in a professional journal, direct letter solicitation, or a combination of these methods are also recommended.

5.2.d.2.B. The request for proposals shall include a statement of when and how the documents associated with the subagreement may be obtained or examined.

5.2.d.2.C. The request for proposals shall contain sufficient information to enable a prospective offeror to prepare a proposal.

5.2.d.2.D. The request for proposals shall contain all criteria that will be used to evaluate submitted proposals and the relative importance of each criterion.

5.2.d.2.E. The request for proposals shall include the deadline for the receipt of proposals and the address to which proposals are to be submitted.

5.2.d.3. Evaluation of Proposals. -- All acceptable proposals from qualified offerors shall be objectively evaluated under the criteria set forth in the request for proposals.

5.2.d.4. Negotiation and Awarding of Subagreements. -- Unless stated in the request for proposals that the awarding of the subagreement will be based upon initial offer, meaningful negotiations shall be conducted with the most qualified offerors who have tendered acceptable proposals. The subagreement shall be awarded to the responsible offeror whose written proposal is most advantageous, considering price and the established criteria. Unsuccessful offerors shall be promptly notified. Documentation of the procurement process shall be available for review by the Secretary.

5.2.d.5. Professional Services. -- In the competitive negotiation for a subagreement for professional services related to a project, the requirements of W.Va. Code § 5G-1-1 et. seq. must be followed.

5.2.e. Noncompetitive Negotiation. -- Noncompetitive negotiation may be used to award a contract if the procurement methods described in subdivision 5.2.c of this rule are inappropriate because:

5.2.e.1. The item is available only from a single source; or

5.2.e.2. A public exigency or emergency exists and urgency will not permit competitive procurement.

5.2.f. Subagreement Forms. -- A standard form of agreement as prescribed by the Secretary shall be utilized for all subagreements.

5.3. Financial Management and Record Keeping.

5.3.a. Financial Management. -- The recipient shall establish and maintain a financial management system to account for all costs incurred related to a project. This system shall assure that generally accepted accounting principles and practices are consistently applied in all financial matters related to the project.

5.3.a.1. Financial management shall include the following elements:

5.3.a.1.A. The establishment of appropriate controls over project funds, property, and other assets;

5.3.a.1.B. The maintenance of ledgers containing accurate, current, and complete records of all financial actions related to the project;

5.3.a.1.C. The maintenance of records that identify the source and amount of all moneys used for the project and document how such moneys were used;

5.3.a.1.D. The maintenance of records that allow a comparison of actual project costs with budgeted costs; and

5.3.a.1.E. The establishment of procedures that assure a timely resolution of audit findings and recommendations.

5.3.a.2. In maintaining the accounting system, the recipient shall:

5.3.a.2.A. Establish a separate account for the project;

5.3.a.2.B. Record all transactions in ledgers (i.e., double entry accounting);

5.3.a.2.C. Record all transactions in a timely and verifiable manner;

5.3.a.2.D. Designate one (1) person who is not responsible for project operations to account for all project funds; and

5.3.a.2.E. Prepare and submit as directed, financial reports of the project.

5.3.b. Records. -- The recipient shall maintain official records for each loan received that include:

5.3.b.1. The loan application and loan approval documents;

5.3.b.2. All contracts and subagreements related to the project;

5.3.b.3. All documents related to financial management prescribed under subdivision 5.3.a of this rule;

5.3.b.4. All documents requiring action by the state (e.g., sewer use ordinances, intermunicipal agreements, water pollution control permits, operation and maintenance manuals);

5.3.b.5. A documentation of compliance with applicable federal and state statutes and regulations;

5.3.b.6. A documentation of the amount of moneys received and expended for the project;

5.3.b.7. A documentation of all property that was purchased for the project; and

5.3.b.8. Time records related to the project.

5.3.c. Inspections.

5.3.c.1. All records maintained pursuant to the provisions of this rule shall be made available for inspection by the Secretary upon request and where appropriate by the authority.

5.3.d. Force Account. -- The recipient may use its own work force to plan, design, or construct minor segments of the project or administer parts of the project if prior approval has been granted by the Secretary.

W. Va. Code R. § 47-31-5