Section NR 747.33 - Comparative proposals and bid processes for remediation activities and services(1) Except for home oil tank owners and department approved emergency actions, the purchase of consulting and commodity services, not already covered by a detailed written contract, as of February 1, 1993, shall conform to the procedures in this section. In order to qualify as an existing contract, the document shall be with a specific service provider and shall specify contract items, such as but not limited to, the project details, time limitations, projected completion dates, payment terms and other standard contract language.(2) GENERAL. (a)Consulting firm selection.1. An owner or operator shall select a PECFA consulting firm, as so registered under s. SPS 305.80, to conduct all site investigation and remedial action activities, and shall execute a written contract with that firm.2. The services of the selected consulting firm shall be limited to providing the consulting services or scientific evaluations necessary to conduct an environmental response. The consulting firm and any company or consultant not independent of the consulting firm or project consultants are prohibited from providing any of the commodity services required in the remediation.(b)Purchase of commodity services..1. All commodity services which include, but are not limited to, soil borings, monitoring-well construction, laboratory analysis, excavation and trucking shall be obtained through a competitive bid process. A minimum of 3 bids are required to be obtained and the lowest cost service provider shall be selected. An employee of a commodity service provider may not participate in the preparation of bid documents or other requirements of the bid process, except for providing technical material, if the employee's firm is a bidder.2. Consulting firms may elect to bid laboratory services on a calendar-year basis in order to obtain volume discounts and reduce the number of bids that shall be completed for each remediation. In completing the competitive bid process, the consulting firm shall obtain a minimum of 3 written bids from qualified firms that respond to the specifications and estimated volume of work provided by the consulting firm. Only PECFA-eligible laboratory work shall be included in the analysis to determine the lowest cost service provider. The lowest bid shall be accepted. All discounts, rebates and savings shall be reflected in the PECFA claim.3. The analysis of laboratory tests for passive or active bio-remediation and the performance of pump or pilot tests may be accomplished by either consultants or commodity providers. If these services are obtained by a consulting firm, as part of their consulting service, then the bidding of this service shall not be required.4. An owner or operator may appeal to the department to obtain approval to select other than the lowest cost commodity service provider. The department may approve an appeal if it determines that the use of another service provider will further the goals of the program.(c)Remediation alternative.1. The owner or operator shall select the lowest cost remediation alternative that will result in a closed remedial action. The responsible party may select a higher cost alternative if he or she certifies to the department in writing that the additional costs will not be claimed for PECFA reimbursement.2. A higher cost remediation alternative may be allowed by the department if it determines that the alternative would further the goals of the program.(3) REMEDIATION. For sites for which a remedial alternative was received by the department before April 21, 1998, the following shall apply:(a) The estimated cost for the selected remediation alternative contained in the remedial action plan shall provide a separate dollar amount for consulting services and for commodity items. The estimated costs for these items shall be submitted to the department as part of the comparison of remedial alternatives or, if the submittal of the alternatives is not required as specified in s. NR 747.335(3) (c), prior to the start of the remedial activities.(b) A dollar amount approved by the department shall establish the maximum reimbursable amount for consulting services during the remediation.(c) The cost detail for the selected remediation alternative shall establish the total estimated cost for the remediation up to receiving approval as a closed remedial action. The estimate may be used to establish a maximum reimbursable amount. If the estimated consulting or commodity costs are established as maximum reimbursable amounts, and one or both will be exceeded, the consultant shall immediately notify in writing the claimant and the department of the anticipated actual cost.(d) If it is determined that the consulting or commodity services may not be completed within the original estimate, the owner or operator and the consultant shall provide a written account, to the department, of the additional work to be performed in order to prove the need for additional funding. Failure to obtain written approval of the additional costs by providing justification acceptable to the department shall constitute grounds for disallowing the additional expenses. Cost guidelines, as published by the department, may be used as one factor in determining if an approval for additional work is warranted.(4) COMMODITY ITEMS REQUIRING COMPETITIVE BIDDING. The following items shall be competitively bid. All bids shall be in units standard to the industry. (a) Excavation of petroleum-contaminated soils;(b) Trucking of petroleum-contaminated soils or backfill material;(c) Thermal treatment of petroleum-contaminated soils;(d) Laboratory services including mobile labs;(f) Drilling and installing monitoring wells;(h) Surveying if the service requires a registered land surveyor; and(i) Other non-consulting services.(5) COMMODITY BUNDLES. The owner or operator may combine individual commodity items into one bid. These bundles of commodities shall be bid by at least 3 service providers and the lowest cost service provider shall be selected.(6) EXEMPTIONS. (a) Commodity items with a purchase price of $1,000 or less shall be exempt from the competitive bid requirement. The exclusion from commodity bidding may not be used if a service is to be used multiple times and the cumulative cost exceeds $1,000.(b)1. The department may exempt specific services from the competitive commodity bid process if the department determines that the conduct of the bid proposal process is unlikely to further the remediation process or the goals of the program.2. Written department approval shall be received prior to incurring costs for services that are exempted under subd. 1., except where a subsequent department waiver of the approval requirement would further the goals or objectives of the program. Note: As established in s. NR 747.30(2) (m) and (i), the department will not reimburse costs, including interest cost, for services exempted under subd. 1., if the costs are incurred prior to the department approval required under subd. 2., and the approval requirement is not subsequently waived.
(c) The competitive commodity bidding required under subs. (2) (b) and (4) is not required where reimbursement amounts are determined either by the usual and customary cost schedule established under s. NR 747.325, or by the public bidding process in subch. VI.(d) The prohibition in sub. (2) (a) 2. against consultants or their associates providing commodity services does not apply where reimbursement amounts are determined either by the usual and customary cost schedule established under s. NR 747.325, or by the public bidding process in subch. VI.(7) DOCUMENTATION. The owner or operator shall maintain the documents and data used in the competitive bid and selection process. These records shall be maintained and provided to the department if requested as part of the claim review or audit processes.Wis. Admin. Code Department of Natural Resources NR 747.33
Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (intro.) to (2), r. (3) and (4), renum. (5) to (8) to be (3) to (6) and am. (5) (a), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: renum. (intro.) and (1) to (6) to be (1) to (7) and am. (2) (a) and (6) (b), cr. (6) (c) and (d) Register February 2006 No. 602, eff. 5-1-06; correction in (2) (a) 1., (3) (a), (6) (c), (d) made under s. 13.92(4) (b) 7, Stats., Register December 2011 No. 672; corrections in (2), (3) (a), (6) (c), (d) made under s. 13.92(4) (b) 7, Stats., Register October 2013 No. 694.