Section ATCP 35.16 - Contract services(1) GENERAL REQUIREMENT. Except as provided in sub. (8), the department may not reimburse a responsible person for the cost of a contract service unless the responsible person contracts that service according to subs. (2) to (7).(2) BIDS AND ESTIMATES REQUIRED.(a) The department may not reimburse a responsible person for contract services performed at a discharge site unless the responsible person selects the contractor to provide services at that site on the basis of at least 3 competitive bids. The responsible person shall provide the department with a copy of the accepted bid before authorizing the contractor to proceed.(b) Except as provided in par. (c), the department may not reimburse a responsible person for contract service costs that exceed the contractor's bid for those services under par. (a). (c) The department may reimburse a responsible person for contract services not included in the contractor's initial bid under par. (a), or for additional hours or units of service beyond those included in the bid under par. (a), if all of the following apply: 1. The contractor providing the additional services was selected by the competitive bidding procedure under par. (a). 2. The contractor bills for the additional services at the same per-unit price at which the contractor agreed to provide equivalent services, if any, in the contractor's initial bid under par. (a). 3. The contractor provides the responsible person and the department with a cost estimate for the additional services, and obtains the approval of the responsible person and the department, before performing those services.5. The responsible person gives the contractor written authorization to proceed with the additional services, after receiving the contractor's estimate under subd. 3.6. The cost for the additional services does not exceed the contractor's estimate under subd. 3.7. The additional services do not involve the selection, design or installation of active groundwater remediation.(d) A responsible person requesting reimbursement from the department shall keep copies of all bids and estimates required under this subsection, and shall make those copies available to the department for inspection and copying upon request. The responsible person shall keep copies of the bids and cost estimates for at least 2 years after the department has paid or denied all reimbursements to which those bids or cost estimates pertain.(2m) BID AND ESTIMATE CONTENTS. Every bid under sub. (2) (a) and every cost estimate under sub. (2) (c) 3. shall include all of the following: (a) A clear description and itemization of the contract services included in the bid or estimate. The description shall be based on an approved workplan or, if there is no workplan, on a good faith estimate of the scope of the project as stated in the bid or estimate.(b) A total bid price or cost estimate for all of the contract services included in the bid or estimate, and a subtotal price for each of the component services itemized in the bid or estimate.(c) The following information related to every service priced on an hourly or per unit basis: 1. The price per hour or per unit of service.2. A reasonable, good faith estimate of the number of hours or units of service to be provided.3. The total estimated price for the service, based on the estimate under subd. 2.4. The estimated date by which the contractor will perform the service.(d) Every certification and disclosure required of the contractor under subs. (6) and (7).(e) The basis for attributing project costs to corrective measures under this chapter, if the project is also designed to investigate or repair environmental contamination involving substances that are not agricultural chemicals. The attribution shall take into account the reasons for which the overall project was initiated, and the end goals of the project.(3) SERVICES PRICED ON AN HOURLY OR PER UNIT BASIS.(a) Bids and cost estimates for the following services shall be priced on an hourly or per unit basis:3. Landspreading and other waste treatment or disposal services.4. Drilling, including at-depth soil sampling and well installation.6. Services normally billed on an hourly or per unit basis.(b) Bids and cost estimates for professional or personal services, including engineering, hydrogeologic, field technician and general contracting services, shall be priced on an hourly basis.(4) RESPONSIBLE PERSON; CHOICE OF CONTRACTORS.(a) The department may require a responsible person to explain that person's choice of contractors.(b) A responsible person may select any contract service provider, but may not apply for reimbursement of any corrective action costs that exceed the low bid for any of the following contract services:3. Landspreading and waste disposal services.4. Drilling, including at-depth soil sampling and well installation. Note: A responsible person may obtain full reimbursement for services provided by a consultant or laboratory that is not the lowest bidder, provided that other requirements under this section are met. A responsible person should consider bid amounts, but may consider other factors including professional qualifications and special project needs.
(5) SEPARATE CONTRACTORS. (a) No contractor who provides any of the following contract services for a corrective action may provide contract services other than the following contract services for that corrective action: 3. Landspreading and other waste treatment or disposal services.4. Drilling, including at-depth soil sampling and well installation.(b) No contractor who provides laboratory services for a corrective action, other than immunoassay services or field testing services using hand-held devices, may provide other contract services related to that corrective action.(c) Paragraphs (a) and (b) do not apply to a general contractor who subcontracts with independent subcontractors to provide services under par. (a) or (b) for a corrective action, provided the subcontractors comply with pars. (a) and (b). (6) CERTIFICATION BY CONTRACTOR. (a) In every bid or cost estimate under sub. (2), the contractor shall certify both of the following: 1. That the contract services will comply with applicable requirements under this chapter, chs. ATCP 29 to 33, and chs. NR 700, 706, 708 and 712 to 727. Note: For corrective actions under this chapter, the department is authorized to review compliance with chs. NR 700, 706, 708, and 712 to 727, and to grant required approvals and variances under those chapters on behalf of the department of natural resources.
2. That the contractor will make available to the department upon request, for inspection and copying, all of the contractor's documents and records related to the contract services.(b) If a contractor submits a bid or cost estimate under sub. (2) to provide engineering, hydrogeologic, field technician or general contractor services, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions, including pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim. Note: If a general contractor solicits other contractors on behalf of a responsible person and the responsible person contracts directly with or directly compensates the other contractors, the general contractor is subject to the insurance provisions contained in this paragraph. A contractor who subcontracts for corrective action services and directly compensates the subcontractor is not acting as a general contractor with regard to that subcontracted service.
(c) If a contractor submits a bid or cost estimate under sub. (2) to provide laboratory services, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions (professional liability) of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.(d) If a contractor submits a bid or cost estimate under sub. (2) to provide drilling services or soil probing, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.(7) CONTRACTOR DISCLOSURE. (a) If a contractor's bid or cost estimate under sub. (2) includes any contract service or cost a contractor knows or should know is not eligible for reimbursement under this chapter, the bid or cost estimate shall clearly identify that service or cost and shall clearly disclose that it is not eligible for reimbursement by the department.(b) A contractor shall disclose, in every bid under sub. (2) that includes landspreading services, the name of the subcontractor who will provide the landspreading services.(8) EXEMPTIONS. The department may reimburse necessary and reasonable contract service costs incurred by a responsible person who fails to comply with subs. (2) to (7) if any of the following applies: (a) The responsible person demonstrates that compliance with subs. (2) to (7) is not reasonably possible.(b) The contract service costs charged by the contractor do not exceed $3,000.(c) The department pays reimbursement at a rate that is no more than 75% of the rate normally allowed under s. ATCP 35.22.(9) DISAPPROVED BIDS OR ESTIMATES. If the department finds that a bid or cost estimate under sub. (2) is unreasonable, that bids or cost estimates appear to be noncompetitive, or that all or part of the contract service is unnecessary, the department may do any of the following: (a) Disapprove the bid or estimate.(b) Require the responsible person to obtain up to 3 additional bids or estimates. Additional bids or estimates, if any, shall comply with this section.(c) Determine that the corrective action cost eligible for reimbursement is less than the amount bid or estimated.Wis. Admin. Code Department of Agriculture, Trade and Consumer Protection ATCP 35.16
Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1), (6) (a) (intro.), 1., and (8) (b), r. and recr. (2), (3), (4) and (5), cr. (2m), r. (7), Register, September, 1998, No. 513, eff. 10-1-98; am. (1), (2) (a) and (c) 3., (2m) (d), (6) (b) and (c), r. (2) (c) 4., cr. (2m) (e), (6) (d), (7) and (9), r. and recr. (8), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: renum. (7) to be (7) (a), cr. (7) (b), am. (9) (intro.) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (4) (b) Register July 2011 No. 667, eff. 8-1-11.Amended by, CR 14-047: am. (6) (a) 1. Register, Register May 2015 No. 713, eff.6/1/2015